Rule2022-08026
Definition of “Frame or Receiver” and Identification of Firearms
Primary source
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Published
April 26, 2022
Effective
August 24, 2022
Issuing agencies
Justice DepartmentAlcohol, Tobacco, Firearms, and Explosives Bureau
Abstract
The Department of Justice ("Department") is amending Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") regulations to remove and replace the regulatory definitions of "firearm frame or receiver" and "frame or receiver" because the current regulations fail to capture the full meaning of those terms. The Department is also amending ATF's definitions of "firearm" and "gunsmith" to clarify the meaning of those terms, and to provide definitions of terms such as "complete weapon," "complete muffler or silencer device," "multi- piece frame or receiver," "privately made firearm," and "readily" for purposes of clarity given advancements in firearms technology. Further, the Department is amending ATF's regulations on marking and recordkeeping that are necessary to implement these new or amended definitions.
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[Federal Register Volume 87, Number 80 (Tuesday, April 26, 2022)]
[Rules and Regulations]
[Pages 24652-24749]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-08026]
[[Page 24651]]
Vol. 87
Tuesday,
No. 80
April 26, 2022
Part II
Department of Justice
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Bureau of Alcohol, Tobacco, Firearms, and Explosives
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27 CFR Parts 447, 478, and 479
Definition of ``Frame or Receiver'' and Identification of Firearms;
Final Rule
Federal Register / Vol. 87 , No. 80 / Tuesday, April 26, 2022 / Rules
and Regulations
[[Page 24652]]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Parts 447, 478, and 479
[Docket No. 2021R-05F; AG Order No. 5374-2022]
RIN 1140-AA54
Definition of ``Frame or Receiver'' and Identification of
Firearms
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives;
Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice (``Department'') is amending Bureau
of Alcohol, Tobacco, Firearms, and Explosives (``ATF'') regulations to
remove and replace the regulatory definitions of ``firearm frame or
receiver'' and ``frame or receiver'' because the current regulations
fail to capture the full meaning of those terms. The Department is also
amending ATF's definitions of ``firearm'' and ``gunsmith'' to clarify
the meaning of those terms, and to provide definitions of terms such as
``complete weapon,'' ``complete muffler or silencer device,'' ``multi-
piece frame or receiver,'' ``privately made firearm,'' and ``readily''
for purposes of clarity given advancements in firearms technology.
Further, the Department is amending ATF's regulations on marking and
recordkeeping that are necessary to implement these new or amended
definitions.
DATES: This rule is effective August 24, 2022.
FOR FURTHER INFORMATION CONTACT: Vivian Chu, 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; telephone: (202) 648-7070.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Summary of the Regulatory Action
B. Summary of Costs and Benefits
II. Background
A. ATF's Application of the Definitions to Split Frames and
Receivers
B. Privately Made Firearms
C. Advanced Notice of Proposed Rulemaking on Identification
Markings Placed on Firearm Silencers and Firearm Mufflers
III. Notice of Proposed Rulemaking
A. Definition of ``Firearm''
B. Definition of ``Frame or Receiver''
C. Definition of ``Readily''
D. Definitions of ``Complete Weapon'' and ``Complete Muffler or
Silencer Device''
E. Definition of ``Privately Made Firearm''
F. Definition of ``Importer's or Manufacturer's Serial Number''
G. Definition of ``Gunsmith''
H. Marking Requirements for Firearms
I. Recordkeeping
J. Record Retention
IV. Analysis of Comments and Department Responses for the Proposed
Rule
A. Issues Raised in Support of the Rule
B. Issues Raised in Opposition to the Rule
V. Final Rule
A. Definition of ``Firearm''
B. Definition of ``Frame or Receiver''
C. Definition of ``Readily''
D. Definitions of ``Complete Weapon'' and ``Complete Muffler or
Silencer Device''
E. Definition of ``Privately Made Firearm''
F. Definition of ``Importer's or Manufacturer's Serial Number''
G. Definition of ``Gunsmith''
H. Marking Requirements for Firearms
I. Recordkeeping
J. Record Retention
K. Effect on Prior ATF Rulings and Procedures
L. Severability
VI. Statutory and Executive Order Review
A. Executive Orders 12866 and 13563
B. Executive Order 13132
C. Executive Order 12988
D. Regulatory Flexibility Act
E. Small Business Regulatory Enforcement Fairness Act of 1996
F. Congressional Review Act
G. Unfunded Mandates Reform Act of 1995
H. Paperwork Reduction Act of 1995
I. Executive Summary
A. Summary of the Regulatory Action
There are no statutory definitions for the terms ``frame'' or
``receiver'' in the Gun Control Act of 1968 (``GCA'') or the National
Firearms Act of 1934 (``NFA''). To implement these statutes, the terms
``firearm frame or receiver'' and ``frame or receiver'' were defined in
regulations to mean ``[t]hat part of a firearm which provides housing
for the hammer, bolt or breechblock, and firing mechanism, and which is
usually threaded at its forward portion to receive the barrel.'' 27 CFR
478.11 (implementing GCA, Title I); 27 CFR 479.11 \1\ (implementing
GCA, Title II). These definitions were meant to provide direction as to
which portion of a weapon is the frame or receiver for purposes of
licensing, serialization, and recordkeeping, thereby ensuring that a
component necessary for the functioning of the weapon could be traced
if later involved in a crime.
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\1\ The definition of ``frame or receiver'' in section 479.11
differs slightly from the definition in section 478.11 in that it
omits an Oxford comma between ``bolt or breechblock'' and ``firing
mechanism.''
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However, a restrictive application of these definitions would not
describe the frame or receiver of most firearms currently in
circulation in the United States. Most modern weapon designs, including
semiautomatic rifles and pistols with detachable magazines, have a
split or multi-piece receiver where the relevant fire control
components are housed by more than one part of the weapon (e.g., the
upper receiver and lower receiver of an AR-15 rifle), or incorporate a
striker to fire the weapon, rather than a hammer.
In the past few years, some courts have treated the regulatory
definition of ``firearm frame or receiver'' as inflexible when applied
to the lower portion of the AR-15-type rifle, one of the most popular
firearms in the United States. If broadly followed, that result could
mean that as many as 90 percent of all firearms (i.e., with split
frames or receivers, or striker-fired) in the United States would not
have any frame or receiver subject to regulation. Furthermore,
technological advances have also made it easier for companies to sell
firearm parts kits, standalone frame or receiver parts, and easy-to-
complete frames or receivers to unlicensed persons, without maintaining
any records or conducting a background check. These parts kits,
standalone frame or receiver parts, or partially complete frames or
receivers enable individuals to make firearms quickly and easily. Such
privately made firearms (``PMFs''), when made for personal use, are not
required by the GCA to have a serial number placed on the frame or
receiver, making it difficult for law enforcement to determine where,
by whom, or when they were manufactured, and to whom they were sold or
otherwise transferred. Because of the difficulty with tracing illegally
sold or distributed PMFs, those firearms are also commonly referred to
as ``ghost guns.''
For these many reasons, ATF is promulgating a rule that would bring
clarity to the definition of ``frame or receiver'' by providing an
updated, more comprehensive definition. On May 21, 2021, the Department
published a Notice of Proposed Rulemaking (``NPRM'') in the Federal
Register, 86 FR 27720, proposing to redefine the term ``frame or
receiver'' as that which provides housing or a structure to hold or
integrate one or more fire control components. In light of the comments
received, this final rule revises the proposed definition of ``frame or
receiver'' so that a ``frame'' is applicable to a handgun, and variants
thereof, and a ``receiver'' is applicable to a rifle, shotgun, or
projectile weapon other than a handgun, and variants thereof. Moreover,
``frame or receiver'' will be defined to describe only a single part
[[Page 24653]]
that provides housing or a structure for one specific, primary fire
control component of weapons that expel a projectile, or one specific,
primary internal sound reduction component of firearm mufflers or
silencers. The final rule also defines the meaning of ``variants'' and
``variants thereof.'' The final rule provides detailed examples along
with pictures identifying the frame or receiver of a variety of common
models under the updated definition. The final rule also exempts from
the new definitions and marking requirements existing split frame or
receiver designs in which a part was previously classified by ATF as
the firearm ``frame or receiver'' and provides examples and pictures of
select exempted frames or receivers, such as AR-15/M-16 variant
firearms. The only exception to ``grandfathering'' will be for
partially complete, disassembled, or nonfunctional frames or receivers,
including weapon or frame or receiver parts kits, that ATF did not
classify as firearm ``frames or receivers'' as defined prior to this
rule.
The final rule also specifies, with more clarity and examples than
the NPRM, how these terms apply to multi-piece frames or receivers
(i.e., those that may be disassembled into multiple modular subparts),
to firearm mufflers and silencers, to partially complete, disassembled,
or nonfunctional frames or receivers, including frame or receiver parts
kits, and to frames or receivers that are destroyed. The final rule
also provides detailed examples of when such items are considered
readily completed, assembled, restored, or otherwise ``converted'' to
function as a frame or receiver. At the same time, the final rule makes
clear that articles that have not yet reached a stage of manufacture
where they are clearly identifiable as an unfinished component of a
frame or receiver (e.g., unformed blocks of metal, liquid polymers, or
other raw materials) are not frames or receivers.
Consistent with the GCA, and to ensure proper licensing, marking,
recordkeeping, and background checks with respect to certain weapon
parts kits, the final rule adopts the proposed clarification of the
term ``firearm'' to include weapon (e.g., pistol, revolver, rifle, or
shotgun) parts kits that are designed to or may readily be completed,
assembled, restored, or otherwise converted to expel a projectile by
the action of an explosive. This rule also finalizes, with minor
changes, the proposed definition of ``privately made firearm.'' It
amends the regulations to require that all firearms privately
manufactured or ``made'' by nonlicensees without identifying markings
that are taken into inventory by licensees be identified (or marked)
and recorded so that they may be traced by law enforcement through
their records if they are later involved in crime. As with the NPRM,
the final rule does not mandate unlicensed persons to mark their own
PMFs for personal use, or when they occasionally acquire them for a
personal collection or sell or transfer them from a personal collection
to unlicensed in-State residents consistent with Federal, State, and
local law.
In addition, the rule finalizes the proposed amendments to the term
``gunsmith'' to include persons who engage in the business of
identifying firearms for nonlicensees, thus ensuring greater access to
professional marking services for PMFs. The final rule clarifies the
gunsmithing rules proposed in the NPRM by stating the following: (1)
Licensed firearms dealers (in addition to licensed manufacturers and
importers) may conduct same-day adjustments or repairs of all firearms,
including PMFs, without taking them into inventory, provided they are
returned to the person from whom they were received; (2) nonlicensees
may mark PMFs for a licensee under the licensee's direct supervision;
and (3) licensees may adopt an existing unique identification number
previously placed on a PMF by a nonlicensee under certain conditions.
In response to comments, the final rule permits licensed
manufacturers to adopt the serial number and other identifying markings
previously placed on a firearm without a variance from ATF, provided
the firearm has not been sold, shipped, or otherwise disposed of to a
person who is not a licensed manufacturer, superseding ATF Ruling 2009-
5. The rule permits licensed manufacturers to perform gunsmithing
services on existing, marked firearms without marking or obtaining a
marking variance, superseding ATF Ruling 2010-10. It also finalizes,
with some modifications, the proposed definition of the term
``importer's or manufacturer's serial number'' to help ensure that the
serial number and associated identifying markings required to be placed
on a firearm, including those placed on a PMF or an ATF-issued serial
number,\2\ are considered the ``importer's or manufacturer's serial
number'' protected by 18 U.S.C. 922(k), which prohibits possession or
receipt of a firearm that has had the importer's or manufacturer's
serial number removed, obliterated, or altered.
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\2\ ATF occasionally issues serial numbers for placement on
firearms in which the serial numbers were not originally placed, see
26 U.S.C. 5842(b), or were accidentally removed, damaged, or worn
due to routine use or other innocent reason.
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The final rule adopts, with minor clarifying changes, the proposed
clarifications to the marking and recordkeeping requirements for
licensees. First, the rule finalizes the definitions for ``complete
weapon'' and ``complete muffler or silencer device,'' and adds a new
definition for ``multi-piece frame or receiver'' under the new
definition of ``frame or receiver.'' The rule also specifies a
reasonable time period in which a complete weapon or a complete muffler
or silencer device, or the frame or receiver of a weapon or device
(including a modular subpart of a multi-piece frame or receiver), must
be marked with a serial number and other identifying information and
recorded. Second, the rule finalizes the proposed updates to the
information required to be marked on the frame or receiver, clarifies
the meaning of the marking terms ``identify,'' ``legibly,'' and
``conspicuously,'' and authorizes firearms licensees to adopt
identifying markings in the manufacturing process. Third, the rule
finalizes the proposal to require all licensees to consolidate their
records of manufacture, acquisition, and disposition of firearms, and
to eliminate duplicate recordkeeping entries. Fourth, with respect to
parts defined as firearm mufflers or silencers, which are difficult to
mark and record, this rule finalizes with minor clarifying changes the
proposed amendments that allow for them to be transferred between
licensees qualified under the NFA for purposes of further manufacture
or repair of complete devices without immediately marking and
registering them in the National Firearms Registration and Transfer
Record (``NFRTR''). Fifth, the rule finalizes with minor clarifying
changes the proposed amendments that set forth the process by which
persons may voluntarily seek a determination from ATF on whether an
item or kit they wish to manufacture or possess is a firearm or armor
piercing ammunition subject to marking, recordkeeping, and other
applicable Federal laws and regulations. These amendments to the
regulations will help ensure that firearms can be traced efficiently
and effectively by law enforcement through the records of licensees,
and help prevent the acquisition of easy-to-complete firearms by
prohibited persons and terrorists.
Lastly, the rule finalizes with minor changes the proposed
requirement that all licensees retain their records until the business
or licensed activity is discontinued, either on paper or in an
[[Page 24654]]
electronic format approved by the Director of ATF (``Director''), at
the business or collection premises readily accessible for inspection.
This includes authorization of licensees to store their ``closed out''
paper records and forms older than 20 years at a separate warehouse,
which would be considered part of the business or collection premises
for this purpose and subject to inspection. These provisions will
enhance public safety by ensuring that acquisition and disposition
records of all active licensees are not destroyed after 20 years and
will remain available to law enforcement for tracing purposes.
B. Summary of Costs and Benefits
The final rule clarifies which firearms are subject to regulation
under the GCA and NFA and associated licensing, marking, and
recordkeeping requirements. The rule requires persons who engage in the
business of dealing in weapon and frame or receiver parts kits defined
as firearms to be licensed, mark the frames or receivers within such
kits with serial numbers and other marks of identification, and
maintain records of their acquisition and disposition. The provisions
of these statutes and implementing regulations are designed to increase
public safety by, among other things, preventing prohibited persons
from acquiring firearms and allowing law enforcement to trace firearms
involved in crime.
To minimize disruption and cost to the licensed firearms industry
as much as possible, and in keeping with the public safety goals of the
rule, this rule grandfathers existing complete frame or receiver
designs previously determined by the Director to be the firearm ``frame
or receiver'' of a given weapon. It does not grandfather partially
complete, disassembled, or nonfunctional frames or receivers, including
weapon or frame or receiver parts kits, that ATF did not classify as
firearm ``frames or receivers'' as previously defined. ATF estimates
that the 7 percent annualized cost of this rule is $14.3 million.
II. Background
The Attorney General is responsible for enforcing the Gun Control
Act of 1968, as amended, and the National Firearms Act of 1934, as
amended.\3\ This responsibility includes the authority to promulgate
regulations necessary to enforce the provisions of the GCA and NFA. See
18 U.S.C. 926(a); 26 U.S.C. 7801(a)(2)(A), 7805(a).\4\ Congress and the
Attorney General have delegated the responsibility for administering
and enforcing the GCA and NFA to the Director of ATF, subject to the
direction of the Attorney General and the Deputy Attorney General. See
26 U.S.C. 7801(a)(2); 28 U.S.C. 599A(b)(1), (c)(1); 28 CFR 0.130(a)(1)-
(2); T.D. 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 and NFA. See 27 CFR parts 478, 479.
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\3\ NFA provisions still refer to the ``Secretary of the
Treasury.'' See generally 26 U.S.C. ch. 53. However, the Homeland
Security Act of 2002, Public Law 107-296, 116 Stat. 2135,
transferred the functions of ATF from the Department of the Treasury
to the Department of Justice, under the general authority of the
Attorney General. 26 U.S.C. 7801(a)(2); 28 U.S.C. 599A(c)(1). Thus,
for ease of reference, this final rule refers to the Attorney
General throughout.
\4\ See also footnote 82, infra, for specific grants of
rulemaking authority.
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On May 21, 2021, the Department published in the Federal Register a
Notice of Proposed Rulemaking (``NPRM'') entitled ``Definition of
`Frame or Receiver' and Identification of Firearms,'' 86 FR 27720,
proposing changes to various regulations in 27 CFR parts 447, 478, and
479. The comment period for the proposed rule concluded on August 19,
2021, and ATF received 290,031 comments.
The NPRM provided a comprehensive explanation of the passage of the
Federal Firearms Act of 1938 (``FFA''), Public Law 75-785, 52 Stat.
1250, its repeal, and the subsequent legislative history and context
leading to Congress's passage of the GCA in 1968, as well as the
promulgation of the definitions for ``frame or receiver'' that ATF and
the firearms industry have relied on for more than 50 years.\5\ 86 FR
at 27720-21. The GCA at 18 U.S.C. 921(a)(3) defines the term
``firearm'' to include not only a weapon that will, is designed to, or
may readily be converted to expel a projectile, but also the ``frame''
or ``receiver'' of any such weapon. 18 U.S.C. 921(a)(3)(A), (B).
Because frames or receivers are included in the definition of
``firearm,'' any person who engages in the business of manufacturing,
importing, or dealing in frames or receivers must obtain a license from
ATF. 18 U.S.C. 922(a)(1)(A), 923(a). Each licensed manufacturer or
importer must ``identify by means of a serial number engraved or cast
on the receiver or frame of the weapon, in such manner as the Attorney
General shall by regulations prescribe, each firearm imported or
manufactured by such importer or manufacturer.'' \6\ 18 U.S.C. 923(i);
see 27 CFR 478.92, 479.102. Licensed manufacturers and importers must
also maintain permanent records of production or importation, as well
as their receipt, sale, or other disposition of firearms, including
frames or receivers. 18 U.S.C. 923(g)(1)(A); 27 CFR 478.122, 478.123.
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\5\ The Omnibus Crime Control and Safe Streets Act of 1968
repealed the FFA and was then incorporated into and expanded by the
GCA. Public Law 90-351, secs. 906-07, 82 Stat. 197, 234-35 (1968);
Public Law 90-618, 82 Stat. 1213 (1968).
\6\ Additionally, a firearm frame or receiver that is not a
component part of a complete weapon at the time it is sold, shipped,
or disposed of must be identified in the manner prescribed with a
serial number and all of the other required markings. 27 CFR
478.92(a)(2), 479.102(e); ATF Rul. 2012-1.
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The GCA does not define the terms ``frame'' or ``receiver'' to
implement the statute, but frames or receivers are the primary
structural components of a firearm to which fire control components are
attached.\7\ After the GCA was enacted, the terms ``firearm frame or
receiver'' and ``frame or receiver'' were defined as ``that part of a
firearm which provides housing for the hammer, bolt or breechblock, and
firing mechanism, and which is usually threaded at its forward portion
to receive the barrel.'' 27 CFR 478.11 (implementing GCA, Title I); \8\
27 CFR 479.11 (implementing GCA, Title II).\9\ The intent in
promulgating these definitions was to inform the public and industry as
to which portion of a firearm was the frame or receiver for purposes of
licensing, serialization, and recordkeeping, thus ensuring that a
necessary component of the weapon could be traced if later involved in
a crime.
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\7\ See Webster's Third New International Dictionary 902, 1894
(1971) (a ``frame'' is ``the basic unit of a handgun which serves as
a mounting for the barrel and operating parts of the arm'';
``receiver'' means ``the metal frame in which the action of a
firearm is fitted and to which the breech end of the barrel is
attached''); John Olson, Olson's Encyclopedia of Small Arms 72
(1985) (the term ``frame'' means ``the basic structure and principal
component of a firearm''); Steindler's New Firearms Dictionary, p.
209 (1985) (``receiver'' means ``that part of a rifle or shotgun . .
. that houses the bolt, firing pin, mainspring, trigger group, and
magazine or ammunition feed system. The barrel is threaded into the
somewhat enlarged forward part of the receiver, called the receiver
ring. At the rear of the receiver, the butt or stock is fastened. In
semiautomatic pistols, the frame or housing is sometimes referred to
as the receiver'').
\8\ See 33 FR 18558 (Dec. 14, 1968) (formerly 26 CFR 178.11).
\9\ See 36 FR 14257 (Aug. 3, 1971) (formerly 26 CFR 179.11).
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The NPRM discussed that at the time the regulatory definitions were
promulgated, single-framed firearms such as revolvers and break-open
shotguns were far more prevalent for civilian (i.e., not military or
law enforcement) use in the United States than split receiver weapons,
such as semiautomatic rifles and pistols with detachable magazines.
Single-framed firearms incorporate the hammer, bolt or breechblock, and
firing mechanism within the same housing. 86 FR at
[[Page 24655]]
27721. Over time, split receiver firearms became popular for civilian
use, such as the AR-15 semiautomatic rifle (upper receiver and lower
receiver), Glock semiautomatic pistol (upper slide assembly and lower
grip module), and Sig Sauer P320 pistol (M17/18 as adopted by the U.S.
military) (upper slide assembly, chassis, and lower grip module). And
more firearm manufacturers began incorporating a striker-fired
mechanism, rather than a ``hammer,'' in the firing design, such as in
the Glock pistol. Id.
A. ATF's Application of the Definitions to Split Frames and Receivers
The NPRM explained that ATF's regulatory definitions of ``frame or
receiver'' do not expressly capture these types of firearms (i.e.,
split frames or receivers) that now constitute the majority of firearms
in the United States.\10\ However, ATF's position has long been that
the weapon ``should be examined with a view toward determining if
[either] the upper or lower half of the receiver more nearly fits the
legal definition of `receiver,' '' and more specifically, for
machineguns, whether the upper or lower portion has the ability to
accept machinegun parts.<SUP>11 12</SUP> The NPRM listed the variety of
factors ATF has considered when making determinations for firearm
classifications under the GCA and NFA regarding which part of a firearm
is the frame or receiver, given that neither a split nor a multi-piece
receiver has a portion of its design that falls within the precise
wording of the existing regulatory definition. 86 FR at 27721.
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\10\ United States v. Rowold, 429 F. Supp. 3d 469 (N.D. Ohio
2019), Testimony of ATF Firearms Enforcement Officer Daniel Hoffman
at Doc. No. 60, Hrg. Tr., Page ID 557 (approximately 10 percent of
currently manufactured firearms in the United States include at
least three components in the frame or receiver definition), and
Defense Expert Daniel O'Kelly at Doc. No. 60, Hrg. Tr., Page ID 482
(``90 some percent of [semiautomatic pistols] do not have a part
which has more than one of these four elements in it and, therefore,
don't qualify, according to the definition in the CFR.'').
\11\ ATF Internal Revenue Service Memorandum #21208 (Mar. 1,
1971) (lower portion of the M-16 is the frame or receiver because it
comes closest to meeting the definition of frame or receiver in 26
CFR 178.11 (now 27 CFR 478.11), and is the receiver of a machinegun
as defined in the NFA); ATF Memorandum #22334 (Jan. 24, 1977) (upper
half of the FN-FAL rifle is the frame or receiver because it was
designed to accept the components that allow fully automatic fire).
The ability to accept machinegun parts is considered because both
the GCA and the NFA regulate machinegun receivers as
``machineguns.'' See 18 U.S.C. 921(a)(23); 26 U.S.C. 5845(b) (``The
term [``machinegun''] shall also include the frame or receiver of
any such weapon [which shoots is designed to shoot, or can be
readily restored to shoot, automatically more than one shot, without
manual reloading, by a single function of the trigger].'').
\12\ Regulations implementing the relevant statutes spell the
term ``machine gun'' rather than ``machinegun.'' E.g., 27 CFR
478.11, 479.11. For convenience, this rule uses ``machinegun,''
except when quoting a source to the contrary.
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Indeed, the current definitions were never intended, or understood,
to be exhaustive. The Department discussed in the NPRM the existing law
and congressional intent recognizing that the definition of ``frame or
receiver'' need not be limited to a strict application of the
regulation. Id. at 27721-22. At the time the current definitions were
adopted, there were numerous models of firearms that did not contain a
part that fully met the regulatory definition of ``frame or receiver,''
such as the Colt 1911, FN-FAL, and the AR-15/M-16, all of which were
originally manufactured almost exclusively for military use. ATF has
long applied the factors stated in the NPRM when determining which
component of those weapons qualifies as the frame or receiver.\13\
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\13\ See footnote 11, supra.
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While ATF for decades has classified the lower receiver of the AR-
15 rifle as a ``frame or receiver,'' some courts recently have treated
the regulatory definition as inflexible when applied to the lower
portion of the AR-15-type rifle, which is the semiautomatic version of
the M-16-type machinegun originally designed for the U.S. military.
That was because those courts have read the regulatory definition to
mean that the lower portion of the AR-15 is not a ``frame or
receiver,'' as it provides housing only for the hammer and firing
mechanism, not the bolt or breechblock. See United States v. Rowold,
429 F. Supp. 3d 469, 475-76 (N.D. Ohio 2019). (``The language of the
regulatory definition in Sec. 478.11 lends itself to only one
interpretation: Namely, that under the GCA, the receiver of a firearm
must be a single unit that holds three, not two components: (1) The
hammer, (2) the bolt or breechblock, and (3) the firing mechanism.'');
see also United States v. Roh, 8:14-cr-00167-JVS, Minute Order p. 6
(C.D. Cal. July 27, 2020); United States v. Jimenez, 191 F. Supp. 3d
1038, 1041 (N.D. Cal. 2016).
The NPRM explained that, if broadly followed, these courts'
interpretation of ATF's regulations could mean that as many as 90
percent of all firearms now in the United States would not have any
frame or receiver subject to regulation under the current
definitions.\14\ Those firearms would include numerous widely available
models, such as Glock-type and Sig Sauer P320 \15\ pistols, that do not
utilize a hammer--a named component in the existing regulatory
definition--in the firing sequence. Such a narrow interpretation of
what constitutes a frame or receiver would allow persons to avoid
obtaining a license to engage in the business of manufacturing or
importing upper or lower frames or receivers, which would further allow
those persons to avoid the GCA's marking, recordkeeping, and background
check requirements pertaining to upper or lower frames or receivers.
See 86 FR at 27722. In turn, prohibited persons may more easily and
without a background check acquire upper and lower receivers that can
quickly be assembled into semiautomatic weapons.\16\ Moreover, law
enforcement's ability to trace semiautomatic firearms later used in
crime would be severely impeded if no portion of split or multi-piece
frames or receivers were subject to any existing regulations as
described. This result would undermine the intent of Congress in
requiring the frame or receiver of every firearm to be identified, see
18 U.S.C. 923(i), and regulated as a firearm, see 18 U.S.C.
921(a)(3)(B).
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\14\ See footnote 10, supra.
\15\ The United States military services have adopted variants
of the Sig Sauer P320 as their official sidearm, and are in the
process of purchasing up to 500,000 of these striker-fired pistols.
Matthew Cox & Hope Hodge Seck, Army Picks Sig Sauer's P320 Handgun
to Replace M9 Service Pistol, <a href="http://Military.com">Military.com</a> (Jan. 19, 2017),
available at <a href="https://www.military.com/daily-news/2017/01/19/army-picks-sig-sauer-replace-m9-service-pistol.html">https://www.military.com/daily-news/2017/01/19/army-picks-sig-sauer-replace-m9-service-pistol.html</a> (last visited Mar.
22, 2022); Jared Keller, Every U.S. military branch is about to get
its hands on the Army's new sidearm of choice, <a href="http://Taskandpurpose.com">Taskandpurpose.com</a>
(Nov. 18, 2020), available at <a href="https://taskandpurpose.com/military-tech/modular-handgun-system-fielding">https://taskandpurpose.com/military-tech/modular-handgun-system-fielding</a> (last visited Mar. 22, 2022)
(Sig Sauer delivered its 200,000th P320-variant pistol to the
military despite the obstacles posed by the novel coronavirus).
\16\ See Jake Bleiberg & Stefanie Dazio, Design of AR-15 could
derail charges tied to popular rifle, <a href="http://APnews.com">APnews.com</a> (Jan. 13, 2020),
available at <a href="https://apnews.com/article/396bbedbf4963a28bda99e7793ee6366">https://apnews.com/article/396bbedbf4963a28bda99e7793ee6366</a> (last visited Mar. 22, 2022); Dan
Morse & Jasmine Hilton, Magruder [High School] student bought `ghost
gun' components online before wounding classmate, Wash. Post (Jan.
24, 2022), available at <a href="https://www.washingtonpost.com/dc-md-va/2022/01/24/magruder-shooting-teen-jailed">https://www.washingtonpost.com/dc-md-va/2022/01/24/magruder-shooting-teen-jailed</a> (last visited Mar. 22,
2022).
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B. Privately Made Firearms
The NPRM explained that technological advances have also made it
easier for companies to sell firearm parts kits, standalone frame or
receiver parts, or partially complete frames or receivers to unlicensed
persons, posing significant challenges to the regulation of frames and
receivers and enabling prohibited individuals to easily make firearms
at home, especially if aided by personally owned equipment or 3D
printers. These privately made firearms, commonly referred to as
``ghost guns,'' are not required by the GCA to have a
[[Page 24656]]
serial number placed on the frame or receiver when made for personal
use. When PMFs are relinquished by their owners, enter commerce, and
are later recovered and submitted for tracing, the absence of markings
on PMFs makes it extremely difficult for law enforcement to determine
where, by whom, or when they were manufactured, and to whom they were
sold or otherwise disposed.
The NPRM discussed the substantial increase in the number of PMFs
recovered from crime scenes throughout the country in recent years.\17\
From January 1, 2016, through December 31, 2021, there were
approximately 45,240 suspected PMFs reported to ATF as having been
recovered by law enforcement from potential crime scenes, including 692
homicides or attempted homicides (not including suicides), and which
ATF attempted to trace. Broken down by calendar year, the total annual
numbers of suspected PMFs recovered show significant proliferation over
the past six years: 2016: 1,758; 2017: 2,552; 2018: 3,960; 2019: 7,517;
2020: 10,109; 2021: 19,344.<SUP>18 19</SUP>
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\17\ 86 FR at 27722 n.17. See also Erik von Ancken, Untraceable
`Ghost Guns' sold across Central Florida, WKMG-TV Orlando (Nov. 15,
2016), available at <a href="https://www.clickorlando.com/getting-results/2016/11/15/untraceable-ghost-guns-sold-across-central-florida">https://www.clickorlando.com/getting-results/2016/11/15/untraceable-ghost-guns-sold-across-central-florida</a> (last
visited Mar. 22, 2022); Nicholas J. Simons, Ghost Guns: A Haunting
New Reality, Rockefeller Institute of Justice (2021), available at
<a href="https://rockinst.org/wp-content/uploads/2021/04/210413-Ghost-Guns-web.pdf">https://rockinst.org/wp-content/uploads/2021/04/210413-Ghost-Guns-web.pdf</a> (last visited Mar. 22, 2022); Travis Taniguchi et al., The
Proliferation of Ghost Guns: Regulation Gaps and Challenges for Law
Enforcement, National Police Foundation (2021), available at <a href="https://www.policefoundation.org/wp-content/uploads/2021/08/NPF_The-Proliferation-of-Ghost-Guns_Final_2021.pdf">https://www.policefoundation.org/wp-content/uploads/2021/08/NPF_The-Proliferation-of-Ghost-Guns_Final_2021.pdf</a> (last visited Mar. 22,
2022); Shanzeh Ahmad & Jeremy Gorner, `We're seeing an explosion:'
Sheriff Tom Dart, state Sen. Jacqueline Collins take aim at ghost
guns, propose legislation to ban the untraceable weapons, Chi. Trib.
(Oct. 14, 2021), available at <a href="https://www.chicagotribune.com/news/breaking/ct-cook-county-sheriff-dart-ghost-gun-legislation-20211014-whvwjv5aangmtaje27gpllqtvu-story.html">https://www.chicagotribune.com/news/breaking/ct-cook-county-sheriff-dart-ghost-gun-legislation-20211014-whvwjv5aangmtaje27gpllqtvu-story.html</a> (last visited Mar. 22, 2022);
Brian X. McCrone, `3 Pipes Turned into a Shotgun': Nearly 1-in-10
Guns Seized in Philly Are Homemade, NBC10 Philadelphia (Oct. 7,
2021), available at <a href="https://www.nbcphiladelphia.com/news/local/three-metal-pipes-turned-into-a-shotgun-nearly-1-in-10-guns-seized-in-philly-are-homemade/2983066">https://www.nbcphiladelphia.com/news/local/three-metal-pipes-turned-into-a-shotgun-nearly-1-in-10-guns-seized-in-philly-are-homemade/2983066</a> (last visited Mar. 22, 2022); Kevin
Rector, LAPD declares `ghost guns' an `epidemic,' citing 400%
increase in seizures, L.A. Times (Oct. 15, 2021), available at
<a href="https://www.latimes.com/california/story/2021-10-15/lapd-says-ghost-guns-an-epidemic-with-seizures-up-400-since-2017">https://www.latimes.com/california/story/2021-10-15/lapd-says-ghost-guns-an-epidemic-with-seizures-up-400-since-2017</a> (last visited Mar.
22, 2022); Glenn Thrush, `Ghost Guns': Firearm Kits Bought Online
Fuel Epidemic of Violence, N.Y. Times (Nov. 14, 2021), available at
<a href="https://www.nytimes.com/2021/11/14/us/ghost-guns-homemade-firearms.html">https://www.nytimes.com/2021/11/14/us/ghost-guns-homemade-firearms.html</a> (last visited Mar. 22. 2022).
\18\ Source: ATF Office of Strategic Intelligence and
Information. These numbers (as of January 21, 2022) are likely far
lower than the actual number of PMFs recovered from crime scenes
because some law enforcement departments incorrectly trace some PMFs
as commercially manufactured firearms, or may not see a need to use
their resources to attempt to trace firearms with no serial numbers
or other identifiable markings. The term ``suspected PMF'' is used
because of the difficulty of getting law enforcement officials to
uniformly enter PMF trace information into ATF's electronic tracing
system (``eTrace''), resulting in reporting inconsistencies of PMFs
involved in crime. For example, often PMFs resemble commercially
manufactured firearms, or incorporate parts from commercially
manufactured firearms bearing that manufacturer's name, so some
firearms suspected of being PMFs were entered into eTrace using a
commercial manufacturer's name rather than as one privately made by
individuals. The term ``potential crime scenes'' is used because ATF
does not know if the firearm being traced by the law enforcement
agency was found at a crime scene as opposed to one recovered by law
enforcement that had been stolen or otherwise not from the scene of
a crime. This is because the recovery location or correlated crime
is not always communicated by the agency to ATF in the tracing
process.
\19\ The total number of suspected PMFs is greater than the
23,906 originally queried and reported as of March 4, 2021, in the
NPRM, 86 FR at 27722-23, due, not only to the addition of CY 2021
data, but also to traces being updated with more specificity
regarding the firearm description since that date, and the inclusion
of all suspected PMFs recovered within this time frame regardless of
when the trace was entered.
[GRAPHIC] [TIFF OMITTED] TR26AP22.000
Numerous criminal cases have been brought by the Department to
counter the illegal trafficking of unserialized privately completed and
assembled weapons, the possession of such
[[Page 24657]]
weapons by prohibited persons, and other related Federal crimes.\20\
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\20\ 86 FR 27723 n.19. See also Dark Web Gun Trafficker from
Nevada County Pleads Guilty to Unlawful Dealing in Firearms, DOJ/OPA
(June 22, 2018), available at <a href="https://www.justice.gov/usao-edca/pr/dark-web-gun-trafficker-nevada-county-pleads-guilty-unlawful-dealing-firearms">https://www.justice.gov/usao-edca/pr/dark-web-gun-trafficker-nevada-county-pleads-guilty-unlawful-dealing-firearms</a>; Burlington Man Pleads Guilty to Ammunition Charge,
DOJ/OPA (Dec. 12, 2018), available at <a href="https://www.justice.gov/usao-ma/pr/burlington-man-pleads-guilty-ammunition-charge">https://www.justice.gov/usao-ma/pr/burlington-man-pleads-guilty-ammunition-charge</a>; Burlington Man
Sentenced For Ammunition Charge, DOJ/OPA (Mar. 19, 2019), available
at <a href="https://www.justice.gov/usao-ma/pr/burlington-man-sentenced-ammunition-charge">https://www.justice.gov/usao-ma/pr/burlington-man-sentenced-ammunition-charge</a>; Indiana Residents Indicted on Terrorism and
Firearms Charges, DOJ/OPA (July 11, 2019), available at <a href="https://www.justice.gov/opa/pr/indiana-residents-indicted-terrorism-and-firearms-charges">https://www.justice.gov/opa/pr/indiana-residents-indicted-terrorism-and-firearms-charges</a>; Las Vegas Man Charged For Illegally Engaging In
The Business Of Manufacturing Machine Guns Without A License, DOJ/
OPA (Sept. 4, 2019), available at <a href="https://www.justice.gov/usao-nv/pr/las-vegas-man-charged-illegally-engaging-business-manufacturing-machine-guns-without">https://www.justice.gov/usao-nv/pr/las-vegas-man-charged-illegally-engaging-business-manufacturing-machine-guns-without</a>; Two Stockton Residents Sentenced for Firearms
Offenses, DOJ/OPA (Nov. 21, 2019), available at <a href="https://www.justice.gov/usao-edca/pr/two-stockton-residents-sentenced-firearms-offenses">https://www.justice.gov/usao-edca/pr/two-stockton-residents-sentenced-firearms-offenses</a>; Denver Gang Member Sentenced To Over 15 Years In
Federal Prison For Making And Selling Dozens Of High Powered Guns,
Including Machine Guns And Silencers, DOJ/OPA (Nov. 22, 2019),
available at <a href="https://www.justice.gov/usao-co/pr/denver-gang-member-sentenced-over-15-years-federal-prison-making-and-selling-dozens-high">https://www.justice.gov/usao-co/pr/denver-gang-member-sentenced-over-15-years-federal-prison-making-and-selling-dozens-high</a>; Cedar Rapids Man Pleads Guilty to Drug Trafficking and
Possessing Machineguns and a Pipe Bomb, DOJ/OPA (Jan. 21, 2020),
available at <a href="https://www.justice.gov/usao-ndia/pr/cedar-rapids-man-pleads-guilty-drug-trafficking-and-possessing-machineguns-and-pipe">https://www.justice.gov/usao-ndia/pr/cedar-rapids-man-pleads-guilty-drug-trafficking-and-possessing-machineguns-and-pipe</a>;
Indictment Charges 15 Members of a Los Angeles Drug Trafficking Ring
that Distributed Heroin, Methamphetamine and Cocaine, DOJ/OPA (Feb.
12, 2020), available at <a href="https://www.justice.gov/usao-cdca/pr/indictment-charges-15-members-los-angeles-drug-trafficking-ring-distributed-heroin">https://www.justice.gov/usao-cdca/pr/indictment-charges-15-members-los-angeles-drug-trafficking-ring-distributed-heroin</a>; Two Queens Men Charged After Buying Three
Illegally Defaced Firearms and Two Assault Rifles, DOJ/OPA (May 13,
2020), available at <a href="https://www.justice.gov/usao-edny/pr/two-queens-men-charged-after-buying-three-illegally-defaced-firearms-and-two-assault">https://www.justice.gov/usao-edny/pr/two-queens-men-charged-after-buying-three-illegally-defaced-firearms-and-two-assault</a>; Second Defendant Charged with Murder in New Indictment in
Case of Man Found Dead in Pacific Ocean after Being Shot on a Boat,
DOJ/OPA (June 25, 2020), available at <a href="https://www.justice.gov/usao-cdca/pr/second-defendant-charged-murder-new-indictment-case-man-found-dead-pacific-ocean-after">https://www.justice.gov/usao-cdca/pr/second-defendant-charged-murder-new-indictment-case-man-found-dead-pacific-ocean-after</a>; Fishers residents indicted on
terrorism and firearms charges, DOJ/OPA (July 12, 2019), available
at <a href="https://www.justice.gov/usao-sdin/pr/fishers-residents-indicted-terrorism-and-firearms-charges">https://www.justice.gov/usao-sdin/pr/fishers-residents-indicted-terrorism-and-firearms-charges</a>; Outlaws Motorcycle Club Regional
President Pleads Guilty to Firearms Charges, DOJ/OPA (July 15,
2020), available at <a href="https://www.justice.gov/usao-ma/pr/outlaws-motorcycle-club-regional-president-pleads-guilty-firearms-charges">https://www.justice.gov/usao-ma/pr/outlaws-motorcycle-club-regional-president-pleads-guilty-firearms-charges</a>;
Sun Valley Man Indicted on Federal Narcotics Charges and Weapons
Offenses, including Possession of Ghost Gun and Grenade Launcher,
DOJ/OPA (July 23, 2020), available at <a href="https://www.justice.gov/usao-cdca/pr/sun-valley-man-indicted-federal-narcotics-charges-and-weapons-offenses-including">https://www.justice.gov/usao-cdca/pr/sun-valley-man-indicted-federal-narcotics-charges-and-weapons-offenses-including</a>; Seven Defendants Arrested and Charged in
Conspiracy to Possess and Carry Firearms in Furtherance of Drug
Trafficking, DOJ/OPA (Sept. 3, 2020), available at <a href="https://www.justice.gov/usao-dc/pr/seven-defendants-arrested-and-charged-conspiracy-possess-and-carry-firearms-furtherance">https://www.justice.gov/usao-dc/pr/seven-defendants-arrested-and-charged-conspiracy-possess-and-carry-firearms-furtherance</a>; Takedown
Completes Arrests of 15 Alleged Drug Traffickers in Syracuse Area,
DOJ/OPA (Sept. 17, 2020), available at <a href="https://www.justice.gov/usao-ndny/pr/takedown-completes-arrests-15-alleged-drug-traffickers-syracuse-area">https://www.justice.gov/usao-ndny/pr/takedown-completes-arrests-15-alleged-drug-traffickers-syracuse-area</a>; Three Members of Gardena Street Gang Charged in
Federal Racketeering Case Alleging Murder of Man Outside His Home,
DOJ/OPA (Dec. 2, 2020), available at <a href="https://www.justice.gov/usao-cdca/pr/three-members-gardena-street-gang-charged-federal-racketeering-case-alleging-murder-man">https://www.justice.gov/usao-cdca/pr/three-members-gardena-street-gang-charged-federal-racketeering-case-alleging-murder-man</a>; Syracuse Man Pleads Guilty to
Brokering Illegal Gun Sales, DOJ/OPA (Dec. 9, 2020), available at
<a href="https://www.justice.gov/usao-ndny/pr/syracuse-man-pleads-guilty-brokering-illegal-gun-sales">https://www.justice.gov/usao-ndny/pr/syracuse-man-pleads-guilty-brokering-illegal-gun-sales</a>; Gang Member Sentenced to More Than 7
Years in Prison for Gun and Drug Offenses, DOJ/OPA (Feb. 17, 2021),
available at <a href="https://www.justice.gov/usao-ct/pr/gang-member-sentenced-more-7-years-prison-gun-and-drug-offenses">https://www.justice.gov/usao-ct/pr/gang-member-sentenced-more-7-years-prison-gun-and-drug-offenses</a>; Man Sentenced
for Attempting to Board International Flight with a Loaded Firearm,
DOJ/OPA (Mar. 12, 2021), available at <a href="https://www.justice.gov/usao-sdca/pr/man-sentenced-attempting-board-international-flight-loaded-firearm">https://www.justice.gov/usao-sdca/pr/man-sentenced-attempting-board-international-flight-loaded-firearm</a>; Vacaville Man Sentenced to over 4 Years in Prison for
Unlawfully Possessing Ammunition as a Felon, DOJ/OPA (May 4, 2021),
available at <a href="https://www.justice.gov/usao-edca/pr/vacaville-man-sentenced-over-4-years-prison-unlawfully-possessing-ammunition-felon">https://www.justice.gov/usao-edca/pr/vacaville-man-sentenced-over-4-years-prison-unlawfully-possessing-ammunition-felon</a>; Big Island man arrested on methamphetamine and firearm
charges, DOJ/OPA (May 18, 2021), available at <a href="https://www.justice.gov/usao-hi/pr/big-island-man-arrested-methamphetamine-and-firearm-charges">https://www.justice.gov/usao-hi/pr/big-island-man-arrested-methamphetamine-and-firearm-charges</a>; Fresno Gang Member Faces Federal Firearms
Charge, DOJ/OPA (June 3, 2021), available at <a href="https://www.justice.gov/usao-edca/pr/fresno-gang-member-faces-federal-firearms-charge">https://www.justice.gov/usao-edca/pr/fresno-gang-member-faces-federal-firearms-charge</a>; Temple Hills Man Sentenced To Three And A Half
Years In Federal Prison For Trafficking Of Ghost Guns, DOJ/OPA (June
4, 2021), available at <a href="https://www.justice.gov/usao-md/pr/temple-hills-man-sentenced-three-and-half-years-federal-prison-trafficking-ghost-guns">https://www.justice.gov/usao-md/pr/temple-hills-man-sentenced-three-and-half-years-federal-prison-trafficking-ghost-guns</a>; Septuagenarian charged with manufacturing ``ghost
guns'', DOJ/OPA (June 15, 2021), available at <a href="https://www.justice.gov/usao-sdtx/pr/septuagenarian-charged-manufacturing-ghost-guns">https://www.justice.gov/usao-sdtx/pr/septuagenarian-charged-manufacturing-ghost-guns</a>; Convicted Gun Trafficker Pleads Guilty to Firearms
Charges, DOJ/OPA (June 22, 2021), available at <a href="https://www.justice.gov/usao-ndny/pr/convicted-gun-trafficker-pleads-guilty-firearms-charges">https://www.justice.gov/usao-ndny/pr/convicted-gun-trafficker-pleads-guilty-firearms-charges</a>; Barnstable Man Charged with Firearm Trafficking,
DOJ/OPA (June 22, 2021), available at <a href="https://www.justice.gov/usao-ma/pr/barnstable-man-charged-firearm-trafficking">https://www.justice.gov/usao-ma/pr/barnstable-man-charged-firearm-trafficking</a>; Laplace Man Pleads
Guilty to Being Felon in Possession of Ammunition, DOJ/OPA (June 25,
2021), available at <a href="https://www.justice.gov/usao-edla/pr/laplace-man-pleads-guilty-being-felon-possession-ammunition">https://www.justice.gov/usao-edla/pr/laplace-man-pleads-guilty-being-felon-possession-ammunition</a>; Felon Pleads
Guilty to Possession of Ghost Guns and Conspiracy to Commit Wire
Fraud, DOJ/OPA (June 28, 2021), available at <a href="https://www.justice.gov/usao-md/pr/felon-pleads-guilty-possession-ghost-guns-and-conspiracy-commit-wire-fraud">https://www.justice.gov/usao-md/pr/felon-pleads-guilty-possession-ghost-guns-and-conspiracy-commit-wire-fraud</a>; Syracuse Man Sentenced to
Seven Years in Federal Prison for Brokering Illegal Gun Sales, DOJ/
OPA (July 8, 2021), available at <a href="https://www.justice.gov/usao-ndny/pr/syracuse-man-sentenced-seven-years-federal-prison-brokering-illegal-gun-sales">https://www.justice.gov/usao-ndny/pr/syracuse-man-sentenced-seven-years-federal-prison-brokering-illegal-gun-sales</a>; Federal Drug and Gun Charges Brought Against
Fresno Man Accused of Dealing Fentanyl, DOJ/OPA (July 15, 2021),
available at <a href="https://www.justice.gov/usao-edca/pr/federal-drug-and-gun-charges-brought-against-fresno-man-accused-dealing-fentanyl">https://www.justice.gov/usao-edca/pr/federal-drug-and-gun-charges-brought-against-fresno-man-accused-dealing-fentanyl</a>;
Vineland Boys Gang Member Sentenced to 31 Years in Federal Prison
for Racketeering Conspiracy, Attempted Murder of Rival Gangsters,
DOJ/OPA (July 22, 2021), available at <a href="https://www.justice.gov/usao-cdca/pr/vineland-boys-gang-member-sentenced-31-years-federal-prison-racketeering-conspiracy">https://www.justice.gov/usao-cdca/pr/vineland-boys-gang-member-sentenced-31-years-federal-prison-racketeering-conspiracy</a>; Hartford Man Charged with Illegally
Possessing Firearm and Ammunition, DOJ/OPA (July 23, 2021),
available at <a href="https://www.justice.gov/usao-ct/pr/hartford-man-charged-illegally-possessing-firearm-and-ammunition">https://www.justice.gov/usao-ct/pr/hartford-man-charged-illegally-possessing-firearm-and-ammunition</a>; Philadelphia
Man Arrested on Murder-For-Hire Charges; Attempted Homicide in
Southwest Philadelphia Thwarted, DOJ/OPA (July 26, 2021), available
at <a href="https://www.justice.gov/usao-edpa/pr/philadelphia-man-arrested-murder-hire-charges-attempted-homicide-southwest-philadelphia">https://www.justice.gov/usao-edpa/pr/philadelphia-man-arrested-murder-hire-charges-attempted-homicide-southwest-philadelphia</a>;
Rensselaer County Felon Sentenced to 30 Months on Firearms
Convictions, DOJ/OPA (Aug. 10, 2021), available at <a href="https://www.justice.gov/usao-ndny/pr/rensselaer-county-felon-sentenced-30-months-firearms-convictions">https://www.justice.gov/usao-ndny/pr/rensselaer-county-felon-sentenced-30-months-firearms-convictions</a>; Three East Bay Men Charged With
Conspiracy To Traffic Firearms, DOJ/OPA (Aug. 16, 2021), available
at <a href="https://www.justice.gov/usao-ndca/pr/three-east-bay-men-charged-conspiracy-traffic-firearms">https://www.justice.gov/usao-ndca/pr/three-east-bay-men-charged-conspiracy-traffic-firearms</a>; Raleigh Felon Sentenced After Pulling a
Firearm on Officers During a Drug Investigation, DOJ/OPA (Aug. 17,
2021), available at <a href="https://www.justice.gov/usao-ednc/pr/raleigh-felon-sentenced-after-pulling-firearm-officers-during-drug-investigation">https://www.justice.gov/usao-ednc/pr/raleigh-felon-sentenced-after-pulling-firearm-officers-during-drug-investigation</a>; Buffalo Man Arrested, Charged With Manufacturing
Ghost Guns, DOJ/OPA (Aug. 20, 2021), available at <a href="https://www.justice.gov/usao-wdny/pr/buffalo-man-arrested-charged-manufacturing-ghost-guns">https://www.justice.gov/usao-wdny/pr/buffalo-man-arrested-charged-manufacturing-ghost-guns</a>; Montgomery County Man Sentenced to 30
Months for Unlawfully Selling ``Ghost Guns'', DOJ/OPA (Sept. 2,
2021), available at <a href="https://www.justice.gov/usao-ndny/pr/montgomery-county-man-sentenced-30-months-unlawfully-selling-ghost-guns">https://www.justice.gov/usao-ndny/pr/montgomery-county-man-sentenced-30-months-unlawfully-selling-ghost-guns</a>; Three
South Lake Tahoe Residents Charged with Drug Trafficking and Texas
Man Charged with Trafficking Firearms, DOJ/OPA (Aug. 23, 2021),
available at <a href="https://www.justice.gov/usao-edca/pr/three-south-lake-tahoe-residents-charged-drug-trafficking-and-texas-man-charged">https://www.justice.gov/usao-edca/pr/three-south-lake-tahoe-residents-charged-drug-trafficking-and-texas-man-charged</a>; New
Mexico Man Who Sold `Ghost Guns' Indicted, DOJ/OPA (Sept. 8, 2021),
available at <a href="https://www.justice.gov/usao-ndtx/pr/new-mexico-man-who-sold-ghost-guns-indicted">https://www.justice.gov/usao-ndtx/pr/new-mexico-man-who-sold-ghost-guns-indicted</a>; Fresno Men Indicted for Being
Previously Convicted of Violent Crimes in Possession of Firearm and
Ammunition, DOJ/OPA (Sept. 16, 2021), available at <a href="https://www.justice.gov/usao-edca/pr/fresno-men-indicted-being-previously-convicted-violent-crimes-possession-firearm-and">https://www.justice.gov/usao-edca/pr/fresno-men-indicted-being-previously-convicted-violent-crimes-possession-firearm-and</a>; Connecticut Man
Sentenced for Firearm Trafficking, DOJ/OPA (Sept. 16, 2021),
available at <a href="https://www.justice.gov/usao-ma/pr/connecticut-man-sentenced-firearm-trafficking">https://www.justice.gov/usao-ma/pr/connecticut-man-sentenced-firearm-trafficking</a>; Two Defendants Indicted For Oahu Game
Room Robbery, Drug Trafficking, and ``Ghost Gun'' Possession, DOJ/
OPA (Sept. 17, 2021), available at <a href="https://www.justice.gov/usao-hi/pr/two-defendants-indicted-oahu-game-room-robbery-drug-trafficking-and-ghost-gun-possession">https://www.justice.gov/usao-hi/pr/two-defendants-indicted-oahu-game-room-robbery-drug-trafficking-and-ghost-gun-possession</a>; D.C. Felon Sentenced to 30 Months In
Federal Prison For Illegal Possession Of A .40 Caliber ``Ghost Gun''
Firearm And 10 Rounds Of Ammunition, DOJ/OPA (Sept. 24, 2021),
available at <a href="https://www.justice.gov/usao-md/pr/dc-felon-sentenced-30-months-federal-prison-illegal-possession-40-caliber-ghost-gun">https://www.justice.gov/usao-md/pr/dc-felon-sentenced-30-months-federal-prison-illegal-possession-40-caliber-ghost-gun</a>;
Convicted Felon Sentenced for Narcotics Trafficking and
Manufacturing ``Ghost Guns'', DOJ/OPA (Sept. 24, 2021), available at
<a href="https://www.justice.gov/usao-edva/pr/convicted-felon-sentenced-narcotics-trafficking-and-manufacturing-ghost-guns">https://www.justice.gov/usao-edva/pr/convicted-felon-sentenced-narcotics-trafficking-and-manufacturing-ghost-guns</a>; Two District Men
Indicted on Federal Charges Involving Illegal Possession and Sale of
Firearms, DOJ/OPA (Sept. 29, 2021), available at <a href="https://www.justice.gov/usao-dc/pr/two-district-men-indicted-federal-charges-involving-illegal-possession-and-sale-firearms">https://www.justice.gov/usao-dc/pr/two-district-men-indicted-federal-charges-involving-illegal-possession-and-sale-firearms</a>; Bronx Man
Who Possessed Five ``Ghost Guns'' Charged With Possessing A Firearm
And Ammunition, DOJ/OPA (Oct. 5, 2021), available at <a href="https://www.justice.gov/usao-sdny/pr/bronx-man-who-possessed-five-ghost-guns-charged-possessing-firearm-and-ammunition">https://www.justice.gov/usao-sdny/pr/bronx-man-who-possessed-five-ghost-guns-charged-possessing-firearm-and-ammunition</a>; Fresno Felon
Indicted for Possession of Ammunition, DOJ/OPA (Oct. 7, 2021),
available at <a href="https://www.justice.gov/usao-edca/pr/fresno-felon-indicted-possession-ammunition">https://www.justice.gov/usao-edca/pr/fresno-felon-indicted-possession-ammunition</a>; District Man Sentenced to 10\1/2\
Years in Prison for Armed Robbery and Earlier Shooting, DOJ/OPA
(Oct. 13, 2021), available at <a href="https://www.justice.gov/usao-dc/pr/district-man-sentenced-10-years-prison-armed-robbery-and-earlier-shooting">https://www.justice.gov/usao-dc/pr/district-man-sentenced-10-years-prison-armed-robbery-and-earlier-shooting</a>; Brooklyn Felon Sentenced to 48 Months' Imprisonment for
Possessing Arsenal of Weapons Including ``Ghost Guns'', DOJ/OPA
(Oct. 12, 2021), available at <a href="https://www.justice.gov/usao-edny/pr/brooklyn-felon-sentenced-48-months-imprisonment-possessing-arsenal-weapons-including">https://www.justice.gov/usao-edny/pr/brooklyn-felon-sentenced-48-months-imprisonment-possessing-arsenal-weapons-including</a>; Syracuse Man Pleads Guilty to Unlawfully
Possessing and Selling Firearms and Ammunition, DOJ/OPA (Oct. 15,
2021), available at <a href="https://www.justice.gov/usao-ndny/pr/syracuse-man-pleads-guilty-unlawfully-possessing-and-selling-firearms-and-ammunition">https://www.justice.gov/usao-ndny/pr/syracuse-man-pleads-guilty-unlawfully-possessing-and-selling-firearms-and-ammunition</a>; Two Men Indicted for Firearms Trafficking, DOJ/OPA (Oct.
28, 2021), available at <a href="https://www.justice.gov/usao-edca/pr/two-men-indicted-firearms-trafficking">https://www.justice.gov/usao-edca/pr/two-men-indicted-firearms-trafficking</a>; Tattoo Shop Owner Sentenced to
Prison for Possessing Unlicensed Firearms at his Business, DOJ/OPA
(Oct. 28, 2021), available at <a href="https://www.justice.gov/usao-wdpa/pr/tattoo-shop-owner-sentenced-prison-possessing-unlicensed-firearms-his-business">https://www.justice.gov/usao-wdpa/pr/tattoo-shop-owner-sentenced-prison-possessing-unlicensed-firearms-his-business</a>; Mexican National Charged with Possessing Firearms,
Methamphetamine in Checked Luggage at MSP Airport, DOJ/OPA (Nov. 2,
2021), available at <a href="https://www.justice.gov/usao-mn/pr/mexican-national-charged-possessing-firearms-methamphetamine-checked-luggage-msp-airport">https://www.justice.gov/usao-mn/pr/mexican-national-charged-possessing-firearms-methamphetamine-checked-luggage-msp-airport</a>; Lawrence Man Arrested on Firearms and Narcotics
Charges, DOJ/OPA (Nov. 4, 2021), available at <a href="https://www.justice.gov/usao-ma/pr/lawrence-man-arrested-firearms-and-narcotics-charges">https://www.justice.gov/usao-ma/pr/lawrence-man-arrested-firearms-and-narcotics-charges</a>; Colchester Man Sentenced to 34 Months in Federal
Prison for Illegally Possessing Machinegun, DOJ/OPA (Nov. 12, 2021),
available at <a href="https://www.justice.gov/usao-ct/pr/colchester-man-sentenced-34-months-federal-prison-illegally-possessing-machinegun">https://www.justice.gov/usao-ct/pr/colchester-man-sentenced-34-months-federal-prison-illegally-possessing-machinegun</a>;
Ocean County Man Charged with Illegally Possessing Loaded Semi-
Automatic Rifle, DOJ/OPA (Nov. 16, 2021), available at <a href="https://www.justice.gov/usao-nj/pr/ocean-county-man-charged-illegally-possessing-loaded-semi-automatic-rifle">https://www.justice.gov/usao-nj/pr/ocean-county-man-charged-illegally-possessing-loaded-semi-automatic-rifle</a>; New Haven Gang Member
Charged with Federal Firearm and Narcotics Offenses, DOJ/OPA (Nov.
17, 2021), available at <a href="https://www.justice.gov/usao-ct/pr/new-haven-gang-member-charged-federal-firearm-and-narcotics-offenses">https://www.justice.gov/usao-ct/pr/new-haven-gang-member-charged-federal-firearm-and-narcotics-offenses</a>;
Edmund H. Mahony, Gang task force accuses two East Hartford men of
using 3D printers to manufacture and sell hard-to-track `ghost
guns,' Hartford Courant (Jan. 7, 2022), available at <a href="https://www.courant.com/news/connecticut/hc-news-ghost-gun-arrests-20220107-20220107-hqa4ggdygvfxdemh7kihaocqxy-story.html">https://www.courant.com/news/connecticut/hc-news-ghost-gun-arrests-20220107-20220107-hqa4ggdygvfxdemh7kihaocqxy-story.html</a> (last visited Mar.
22, 2022).
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[[Page 24658]]
The problem of untraceable firearms being acquired and used by
violent criminals and terrorists is international in scope.\21\ The
NPRM highlighted Congress's concern, based on intelligence reports from
the Department of Homeland Security (``DHS''), the Federal Bureau of
Investigation (``FBI''), and the National Counterterrorism Center
(``NCTC''), that untraceable firearms pose a challenge to law
enforcement's ability to investigate crimes and that ``wide
availability of ghost guns and the emergence of functional 3D-printed
guns are a homeland security threat.'' \22\ Numerous criminal
investigations and studies have also demonstrated these concerns,\23\
while several States and municipalities have banned or severely
restricted unserialized or 3D-printed firearms.\24\
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\21\ Firearms using 3D-printed components seized in Sweden,
Armament Research Services (May 19, 2017), available at <a href="https://armamentresearch.com/3d-printed-firearms-seized-in-sweden">https://armamentresearch.com/3d-printed-firearms-seized-in-sweden</a> (last
visited Mar. 22, 2022); Lizzie Dearden, Use of 3D printed guns in
German synagogue shooting must act as warning to security services,
experts say, <a href="http://independent.co.uk">independent.co.uk</a> (Oct. 11, 2019), available at <a href="https://www.independent.co.uk/news/world/europe/3d-gun-print-germany-synagogue-shooting-stephan-balliet-neo-nazi-a9152746.html">https://www.independent.co.uk/news/world/europe/3d-gun-print-germany-synagogue-shooting-stephan-balliet-neo-nazi-a9152746.html</a> (last
visited Mar. 22, 2022); G. Hays, Multiple 3D-printed Firearms Seized
in Sydney, Australia, Armament Research Services (Aug. 11, 2020),
available at <a href="https://armamentresearch.com/multiple-3d-printed-firearms-seized-in-sydney-australia">https://armamentresearch.com/multiple-3d-printed-firearms-seized-in-sydney-australia</a> (last visited Mar. 22, 2022);
Glock ghost guns up for grabs on the dark web, Australian National
University (Mar. 23, 2021), available at <a href="https://www.anu.edu.au/news/all-news/glock-ghost-guns-up-for-grabs-on-the-dark-web">https://www.anu.edu.au/news/all-news/glock-ghost-guns-up-for-grabs-on-the-dark-web</a> (last
visited Mar. 22, 2022); Spain dismantles workshop making 3D-printed
weapons, BBC (Apr. 19, 2021), available at <a href="https://www.bbc.com/news/world-europe-56798743">https://www.bbc.com/news/world-europe-56798743</a> (last visited Mar. 22, 2022); Liam Reilly &
Alaa Elassar, A Rhode Island man was arrested for allegedly selling
`ghost guns' and trafficking firearms to the Dominican Republic, CNN
(Jan. 9, 2022), available at <a href="https://www.cnn.com/2022/01/09/us/rhode-island-ghost-guns-dominican-republic/index.html">https://www.cnn.com/2022/01/09/us/rhode-island-ghost-guns-dominican-republic/index.html</a> (last visited
Mar. 22, 2022).
\22\ H.R. Rep. No. 116-88, at 2 (2019). The House Report cited a
January 11, 2019 Joint Intelligence Bulletin issued by DHS, FBI, and
NCTC concluding that ``these rapidly evolving technologies pose an
ongoing, metastasizing challenge to law enforcement in
understanding, tracking, and tracing ghost guns,'' and an April 22,
2019 DHS intelligence assessment that ``repeated the warning that
ghost guns pose an urgent and evolving threat to the homeland,
particularly in the hands of ideologically motivated lone wolf
actors.'' Id.
\23\ Paul Ingram, CBP: 3-D-printed full-auto rifle seized at
Lukeville crossing, <a href="http://tucsonsentinel.com">tucsonsentinel.com</a> (Feb. 8, 2016), available at
<a href="http://www.tucsonsentinel.com/local/report/020816_3d_printed_gun/cbp-3-d-printed-full-auto-rifle-seized-lukeville-crossing">http://www.tucsonsentinel.com/local/report/020816_3d_printed_gun/cbp-3-d-printed-full-auto-rifle-seized-lukeville-crossing</a> (last
visited Mar. 22, 2022); Dark Web Gun Trafficker from Nevada County
Pleads Guilty to Unlawful Dealing in Firearms, DOJ/OPA (June 22,
2018), available at <a href="https://www.justice.gov/usao-edca/pr/dark-web-gun-trafficker-nevada-county-pleads-guilty-unlawful-dealing-firearms">https://www.justice.gov/usao-edca/pr/dark-web-gun-trafficker-nevada-county-pleads-guilty-unlawful-dealing-firearms</a>; Mahita Gajanan, The TSA Has Found 3D-Printed Guns at
Airport Checkpoints 4 Times Since 2016, Time (Aug. 2, 2018),
available at <a href="https://time.com/5356179/3d-printed-guns-tsa">https://time.com/5356179/3d-printed-guns-tsa</a> (last
visited Mar. 22, 2022); Grass Valley Man Sentenced to 5 Years in
Prison for Unlawfully Manufacturing Ghost Guns and Selling Them on
Dark Web, DOJ/OPA (Sept. 21, 2018), available at <a href="https://www.justice.gov/usao-edca/pr/grass-valley-man-sentenced-5-years-prison-unlawfully-manufacturing-ghost-guns-and">https://www.justice.gov/usao-edca/pr/grass-valley-man-sentenced-5-years-prison-unlawfully-manufacturing-ghost-guns-and</a>; Indiana Residents
Indicted on Terrorism and Firearms Charges, DOJ/OPA (July 11, 2019),
available at <a href="https://www.justice.gov/opa/pr/indiana-residents-indicted-terrorism-and-firearms-charges">https://www.justice.gov/opa/pr/indiana-residents-indicted-terrorism-and-firearms-charges</a>; Fishers residents indicted
on terrorism and firearms charges, DOJ/OPA (July 12, 2019),
available at <a href="https://www.justice.gov/usao-sdin/pr/fishers-residents-indicted-terrorism-and-firearms-charges">https://www.justice.gov/usao-sdin/pr/fishers-residents-indicted-terrorism-and-firearms-charges</a>; Brandi Vincent, TSA
Confiscated 3D-Printed Guns at Raleigh-Durham International Airport,
<a href="http://nextgov.com">nextgov.com</a> (Mar. 4, 2020), available at <a href="https://www.nextgov.com/emerging-tech/2020/03/tsa-confiscated-3d-printed-guns-raleigh-durham-international-airport/163533">https://www.nextgov.com/emerging-tech/2020/03/tsa-confiscated-3d-printed-guns-raleigh-durham-international-airport/163533</a> (last visited Mar. 22, 2022);
Man Sentenced for Attempting to Board International Flight with a
Loaded Firearm, DOJ/OPA (Mar. 12, 2021), available at <a href="https://www.justice.gov/usao-sdca/pr/man-sentenced-attempting-board-international-flight-loaded-firearm">https://www.justice.gov/usao-sdca/pr/man-sentenced-attempting-board-international-flight-loaded-firearm</a>; Lizzie Dearden, Police issue
warning over terrorist use of 3D-printed guns as UK neo-Nazi jailed,
MSN News (June 14, 2021), available at <a href="https://www.msn.com/en-gb/news/uknews/police-issue-warning-over-terrorist-use-of-3d-printed-guns-as-uk-neo-nazi-jailed/ar-AAL2G36">https://www.msn.com/en-gb/news/uknews/police-issue-warning-over-terrorist-use-of-3d-printed-guns-as-uk-neo-nazi-jailed/ar-AAL2G36</a> (last visited Mar. 22. 2022);
Davide Sher, Oceanian media report seizures of 3D printed guns,
submachine guns, 3D Printing Media Network (June 22, 2021), <a href="https://www.3dprintingmedia.network/oceanian-media-report-seizures-of-3d-printed-guns-submachine-guns">https://www.3dprintingmedia.network/oceanian-media-report-seizures-of-3d-printed-guns-submachine-guns</a> (last visited Mar. 22, 2022); Dr.
Yannick Veilleux-Lepage, CTRL, HATE, PRINT: Terrorists and the
appeal of 3D-printed weapons, International Centre for Counter-
Terrorism (July 13, 2021), available at <a href="https://icct.nl/publication/ctrl-hate-print-terrorists-and-the-appeal-of-3d-printed-weapons">https://icct.nl/publication/ctrl-hate-print-terrorists-and-the-appeal-of-3d-printed-weapons</a>
(last visited Mar. 22, 2022); Chuck Goudie et al., Al Qaeda launches
1st public campaign in 4 years to encourage lone wolf terrorist
attacks, ABC7 Chicago (July 29, 2021), available at <a href="https://abc7chicago.com/al-qaeda-terrorism-terrorist-attack-inspire-magazine/10918191">https://abc7chicago.com/al-qaeda-terrorism-terrorist-attack-inspire-magazine/10918191</a> (last visited Mar. 22, 2022); Huder Abbasi, What's
behind far-right trend of using 3D tech to make guns?, <a href="http://Aljazeera.com">Aljazeera.com</a>
(July 31, 2021), available at <a href="https://www.aljazeera.com/news/2021/7/31/what-behind-far-right-trend-using-3d-tech-make-guns">https://www.aljazeera.com/news/2021/7/31/what-behind-far-right-trend-using-3d-tech-make-guns</a> (last visited
Mar. 22, 2022); Fergus Hunter, Alleged right-wing extremist charged
over blueprint to 3D-print a gun, The Sydney Morning Herald (Sept.
13, 2021), available at <a href="https://www.smh.com.au/national/nsw/alleged-right-wing-extremist-arrested-over-blueprint-to-3d-print-a-gun-20210913-p58r80.html">https://www.smh.com.au/national/nsw/alleged-right-wing-extremist-arrested-over-blueprint-to-3d-print-a-gun-20210913-p58r80.html</a> (last visited Mar. 22, 2022); Mexican National
Charged with Possessing Firearms, Methamphetamine in Checked Luggage
at MSP Airport, DOJ/OPA (Nov. 2, 2021), available at <a href="https://www.justice.gov/usao-mn/pr/mexican-national-charged-possessing-firearms-methamphetamine-checked-luggage-msp-airport">https://www.justice.gov/usao-mn/pr/mexican-national-charged-possessing-firearms-methamphetamine-checked-luggage-msp-airport</a>.
\24\ See Cal. Penal Code. sec. 29180 (prohibiting ownership of
firearms that do not bear a serial number or other mark of
identification provided by the State); Conn. Gen. Stat. sec. 29-
36a(a) (prohibiting manufacture of firearms without permanently
affixing serial numbers issued by the State); Del. Code Ann. tit. 11
secs. 1459A, 1462 (prohibiting possession of an unfinished frame or
receiver with no serial number and untraceable firearms); DC Code
sec. 7-2504.08(a) (prohibiting licensees from selling firearms
without serial numbers); Haw. Rev. Stat. sec. 134-10.2 (prohibiting
unlicensed persons from producing, purchasing, or possessing 3D-
printed or parts kit firearms without a serial number); Mass. Gen.
Laws Ch. 269 sec. 11E (prohibiting manufacture or delivery of
unserialized firearms to licensed dealer); N.J. Stat. Ann. sec.
2C:39-3(n) (prohibiting possession of firearms manufactured or
assembled without serial number); N.Y. Penal Law secs. 265.50,
265.55 (prohibiting manufacture/possession of undetectable
firearms); R.I. Gen. Laws sec. 11-47-8(e) (prohibiting possession of
``a ghost gun or an undetectable firearm or any firearm produced by
a 3D printing process''); Va. Code. Ann. sec. 18.2-308.5
(prohibiting possession of undetectable firearms); Wash. Rev. Code
sec. 9.41.190 (prohibiting the manufacture with intent to sell of
undetectable and untraceable firearms); see also Bill to ban ghost
guns passes in Maryland House, heads to Gov. Hogan's desk, <a href="http://wjla.com">wjla.com</a>
(Mar. 29, 2022), available at <a href="https://wjla.com/news/local/ghost-guns-ban-bill-passes-maryland-house-maryland-governor-larry-hogan-signs-gun-control">https://wjla.com/news/local/ghost-guns-ban-bill-passes-maryland-house-maryland-governor-larry-hogan-signs-gun-control</a> (last visited Apr. 3, 2022); Zenon Evans,
Philadelphia Becomes First City To Ban 3D-Printed Gun Manufacturing,
<a href="http://Reason.com">Reason.com</a> (Nov. 22, 2013), available at <a href="https://reason.com/2013/11/22/philadelphia-becomes-first-city-to-ban-3">https://reason.com/2013/11/22/philadelphia-becomes-first-city-to-ban-3</a> (last visited Mar. 22,
2022); Council unanimously approves Ghost Guns Bill, restricting the
sale [or] transfer of ghost guns to minors, <a href="http://Montgomerycountymd.gov">Montgomerycountymd.gov</a>
(Apr. 6, 2021), available at <a href="https://www2.montgomerycountymd.gov/mcgportalapps/Press_Detail.aspx?Item_ID=34040&Dept=1">https://www2.montgomerycountymd.gov/mcgportalapps/Press_Detail.aspx?Item_ID=34040&Dept=1</a> (last visited
Mar. 22, 2022); Chris Gros, Mayor Gloria signs ban on ghost guns in
San Diego, CBS8 (Sept. 23, 2021), available at <a href="https://www.cbs8.com/article/news/local/mayor-gloria-signs-ban-on-ghost-guns-in-san-diego/509-ddd5f49d-29dc-42a6-8f2c-41f17381718f">https://www.cbs8.com/article/news/local/mayor-gloria-signs-ban-on-ghost-guns-in-san-diego/509-ddd5f49d-29dc-42a6-8f2c-41f17381718f</a> (last visited Mar.
22, 2022); Julia Wick, L.A. City Council votes to ban `ghost guns',
<a href="http://Police1.com">Police1.com</a> (Dec. 1, 2021), available at <a href="https://www.police1.com/gun-legislation-law-enforcement/articles/la-city-council-votes-to-ban-ghost-guns-8Rre0xK860ryrYud">https://www.police1.com/gun-legislation-law-enforcement/articles/la-city-council-votes-to-ban-ghost-guns-8Rre0xK860ryrYud</a> (last visited Mar. 22, 2022); Hannah
Metzger, Denver outlaws owning, manufacturing `ghost guns' in city,
<a href="http://denvergazette.com">denvergazette.com</a> (Jan. 3, 2022), available at <a href="https://denvergazette.com/news/government/denver-outlaws-owning-manufacturing-ghost-guns-in-city/article_88799392-6d04-11ec-9da0-134e7e7be5f2.html">https://denvergazette.com/news/government/denver-outlaws-owning-manufacturing-ghost-guns-in-city/article_88799392-6d04-11ec-9da0-134e7e7be5f2.html</a> (last visited Mar. 22, 2022); Jakob Rodgers,
Oakland joins growing list of California cities to ban ghost guns,
<a href="http://mercurynews.com">mercurynews.com</a> (Jan. 18, 2022), available at <a href="https://www.mercurynews.com/2022/01/18/oakland-joins-growing-list-of-california-cities-to-ban-ghost-guns">https://www.mercurynews.com/2022/01/18/oakland-joins-growing-list-of-california-cities-to-ban-ghost-guns</a> (last visited Mar. 22, 2022).
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Courts have recognized that the information licensees are required
to record and maintain under the GCA ``enable[s] federal authorities
both to enforce the law's verification measures and to trace firearms
used in crimes.'' Abramski v. United States, 573 U.S. 169, 173 (2014)
(citing H.R. Rep. No. 1577, 90th Cong., 2d Sess., 14 (1968)). At least
one court has also concluded that ATF has a statutory duty pursuant to
the GCA to trace firearms to keep them out of the hands of criminals
and other prohibited persons. Blaustein & Reich, Inc. v. Buckles, 220
F. Supp. 2d 535, 537 (E.D. Va. 2002). This duty includes assisting
State and local law enforcement in their efforts to control the traffic
of firearms within their borders.\25\ Indeed, as of January 2022, there
are approximately 8,674 law enforcement agencies, including 49 agencies
from 46 foreign countries, that use eTrace, a web-based application
administered by ATF that allows authorized law enforcement agencies to
submit and conduct comprehensive traces of recovered crime guns and
develop long-term strategies on how best to reduce firearms-related
crime, firearms trafficking, and violence in their communities.\26\
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\25\ See Public Law 90-351, sec. 901(a), 82 Stat. 212, 225-26
(1968); 18 U.S.C. 922(b)(2) (prohibiting licensees from selling or
delivering any firearm to any person in a State where the purchase
or possession by such person of such firearm would be in violation
of any State law or published ordinance applicable at the place of
sale, delivery, or other disposition); 18 U.S.C. 922(t)(2), (4)
(NICS background check denied if receipt of firearm by transferee
would violate State law); 18 U.S.C. 923(d)(1)(F) (requiring license
applicants to certify compliance with the requirements of State and
local law applicable to the conduct of business).
\26\ Fact Sheet, eTrace: Internet-Based Firearms Tracing and
Analysis, ATF (Sept. 2021), available at <a href="https://www.atf.gov/resource-center/fact-sheet/fact-sheet-etrace-internet-based-firearms-tracing-and-analysis">https://www.atf.gov/resource-center/fact-sheet/fact-sheet-etrace-internet-based-firearms-tracing-and-analysis</a>.
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As discussed in the NPRM, tracing is an integral tool for Federal,
State, local, and international law enforcement agencies to utilize in
their criminal investigations, and the proliferation of untraceable
firearms severely undermines this process. 86 FR at 27724-25. The NPRM
described the overall process that ATF engages in when tracing firearms
submitted by law enforcement. Id. at 27724. The Department stressed how
ATF relies on the recordkeeping required to be maintained by licensees
in order to locate the first unlicensed person who acquired the
recovered firearm from a licensed dealer.\27\ This information can help
find the perpetrator or provide valuable leads that help to solve the
crime. Thus, for a successful trace to be conducted, an accurate
firearm description is necessary and required to be recorded by a
person licensed to engage in the business of manufacturing, importing,
or dealing in firearms, or by a licensed collector of curio or relic
firearms, regardless of whether it is a business or personal firearm of
the licensee.\28\
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\27\ Licensees must respond to ATF trace requests within 24
hours. 18 U.S.C. 923(g)(7); see also J&G Sales Ltd. v. Truscott, 473
F.3d 1043, 1045-46 (9th Cir. 2007) (describing the tracing process).
\28\ See 18 U.S.C. 923(c); 27 CFR 478.125a(a)(4) (licensed
manufacturers, importers, and dealers must record in a bound volume
a complete description of firearms disposed of from their personal
collections); 18 U.S.C. 923(g)(1)(A), (D); 27 CFR 478.125(e), (f)
(licensed dealer and collector disposition records must contain a
complete description of the firearm); 132 Cong. Rec. 15229 (1986)
(Statement of Rep. Hughes) (``In order for the law enforcement
Firearm Tracing Program to operate, some minimal level of
recordkeeping is required [for sales from dealers' personal
collections]. Otherwise, we will not have tracing capability. This
provision simply requires that a bound volume be maintained by the
dealer of the sales of firearms which would include a complete
description of the firearm, including its manufacturer, model
number, and its serial number and the verified name, address, and
date of birth of the purchaser. This is only a minimal inconvenience
for the dealer, yet obtaining and recording this information is
critical to avoid serious damage to the Firearm Tracing Program.'').
---------------------------------------------------------------------------
Because PMFs lack serial numbers and other markings from a licensed
manufacturer, ATF has found it extremely difficult to successfully
complete traces of PMFs. Out of the approximately 45,240 submitted
traces of suspected PMFs mentioned above, ATF could only successfully
complete approximately 445 of those attempted traces to an individual
unlicensed purchaser.\29\ Successful traces of PMFs have been completed
in these rare instances primarily because licensees who acquired PMFs
sometimes recorded a serial number that had been voluntarily engraved
by the manufacturer on a commercially produced handgun slide, barrel,
or another firearm part, which are not required by the GCA to be
marked.
---------------------------------------------------------------------------
\29\ Source: ATF Office of Strategic Intelligence and
Information. These numbers (as of January 21, 2022) include traces
for both U.S. and international law enforcement agencies.
---------------------------------------------------------------------------
In the NPRM, the Department noted that, with the rapid emergence of
PMFs in recent years, licensees have sought clarity from ATF on how
PMFs may be accepted and recorded. 86 FR at 27724-25. Licensees engaged
in the business of dealing in firearms are subject to various recording
and reporting requirements, including completion of a Firearms
Acquisition and Disposition Record (``A&D Record'') to record their
firearms inventory,\30\ a Firearms Transaction Record, ATF Form 4473
(``Form 4473''), for disposition of a firearm to an unlicensed
person,\31\ a Federal Firearms Licensee Theft/Loss Report, ATF Form
3310.11, upon discovery of the theft or loss of firearms,\32\ and a
Report of Multiple Sale or Other Disposition of Pistols and Revolvers,
ATF Form 3310.4, to document sales or other dispositions of multiple
pistols or revolvers within five consecutive business days to the same
person.\33\ These forms require licensees to record the manufacturer
and importer (if any), model (if designated), serial number, type, and
caliber or gauge of the firearm.
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\30\ 27 CFR 478.125(e).
\31\ 18 U.S.C. 923(g)(1)(A); 27 CFR 478.124.
\32\ 18 U.S.C. 923(g)(6); 27 CFR 478.39a(b).
\33\ 18 U.S.C. 923(g)(3)(A); 27 CFR 478.126a. Pursuant to 18
U.S.C. 923(g)(5)(A), licensed dealers along the Southwest U.S.
border are also required by demand letter to report to ATF multiple
sales of certain rifles during five consecutive business days to the
same person on ATF Form 3310.12, including the rifle's serial
number, manufacturer, importer, model, and caliber. Also under that
statute, licensed dealers with 25 or more trace requests with a
``time-to-crime'' of three years or less must report to ATF the
acquisition date, model, caliber or gauge, and the serial number of
a secondhand firearm transferred by the dealer.
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As applied to PMFs, licensees acquiring them might only record a
``type'' of firearm (e.g., pistol, revolver, rifle, or shotgun) in
their A&D records and on Forms 4473. With such limited information, it
will become increasingly difficult, if not impossible, for licensees
and ATF (during inspections) to match accurately and reliably the PMFs
in the firearms inventory with those recorded in required A&D records,
or to determine whether the PMFs recorded as disposed on Forms 4473 are
those recorded as disposed in the A&D records.\34\ Likewise, licensees
and ATF
[[Page 24660]]
will have difficulty accurately determining which PMFs were stolen or
lost from inventory. It will also be difficult for police to locate
stolen PMFs in the business inventories of pawnbrokers, for
example,\35\ or to return any recovered stolen or lost PMFs to their
rightful owners.
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\34\ In United States v. Biswell, 406 U.S. 311, 315-16 (1972),
the Supreme Court explained that ``close scrutiny of [firearms]
traffic is undeniably of central importance to federal efforts to
prevent violent crime and to assist the States in regulating the
firearms traffic within their borders. Large interests are at stake,
and inspection is a crucial part of the regulatory scheme, since it
assures that weapons are distributed through regular channels and in
a traceable manner and makes possible the prevention of sales to
undesirable customers and the detection of the origin of particular
firearms'' (citation omitted).
\35\ Most states require pawnbrokers to record or report any
serial number and other identifying markings on pawned merchandise
so that police can determine their origin. See Ala. Code sec. 5-19A-
3(1); Alaska Stat. sec. 08.76.180(a)(4); Ariz. Rev. Stat. sec. 44-
1625(C)(5); Colo. Rev. Stat. sec. 29-11.9-103(1); Conn. Gen. Stat.
sec. 21-41(c); Del. Code Ann. tit. 24, sec. 2302(a)(1)(b); D.C. Code
sec. 47-2884.11(d); Fla. Stat. sec. 538.04(1)(b)(3), (9); Ga. Code
sec. 44-12-132(4); Haw. Rev. Stat. sec. 445-134.11(c)(10); 205 Ill.
Comp. Stat. 510/5(a); Ind. Code sec. 28-7-5-19(a)(4); Ky. Rev. Stat.
Ann. Sec. 226.040(1)(d)(7); La. Stat. Ann. sec. 37:1782(16)(a);
Mass. Gen. Laws ch. 140 sec. 79; Mich. Comp. Laws sec.
446.205(5)(1), (4); Minn. Stat. sec. 325J.04(Sub.1)(1); Miss. Code
Ann. sec. 75-67-305(1)(a)(iii), (ix); Mo. Rev. Stat. sec.
367.040(4)(6)(b); Neb. Rev. Stat. sec. 69-204(3); N.M. Stat. Ann.
sec. 56-12-9(A)(3); N.C. Gen. Stat. sec. 66-391(b)(1); Ohio Rev.
Code Ann. sec. 4727.07; Okla. Stat. tit. 59 sec. 1509(D)(h); S.C.
Code Ann. sec. 40-39-80(B)(1)(l)(iii), (ix); Tenn. Code Ann. sec.
45-6-209(b)(1)(C), (H); Tex. Fin. Code Ann. sec. 371.157(4); Utah
Code Ann. sec. 13-32a-104(1)(h)(i)(A); Va. Code Ann. sec. 54.1-
4009(A)(1); Wash. Rev. Code sec. 19.60.020(1)(e); W. Va. Code sec.
47-26-2(b)(1); Wis. Stat. sec. 134.71(8)(c)(2).
---------------------------------------------------------------------------
Assuming a PMF can be successfully traced to a Federal firearms
licensee (``FFL'') or that a correct Form 4473 can be located, the NPRM
explained that the ATF Form 4473 is the primary evidence used to
prosecute straw purchasers who buy firearms from FFLs typically on
behalf of prohibited persons, such as felons or illegal firearms
traffickers, and other persons who could use the firearms to commit
violent crimes.\36\ The form is typically the key evidence that the
straw purchaser who bought the firearm (and who can pass a background
check) made a false statement to the FFL concerning the identity of the
actual purchaser when acquiring that firearm, in violation of 18 U.S.C.
922(a)(6) and 924(a)(1)(A), or State law.\37\ But as unmarked and
difficult-to-trace PMFs are transacted throughout the commercial
marketplace, law enforcement will have difficulties prosecuting straw
purchasers for making false statements because it will be harder to
prove that the firearms acquired under false pretenses on a Form 4473
were the ones found in the hands of the true purchaser.\38\ Likewise,
the absence of identifying firearm information on multiple sales forms
and theft/loss reports makes it more difficult for ATF to identify
firearms traffickers and thieves.\39\
---------------------------------------------------------------------------
\36\ See United States v. Marzzarella, 614 F.3d 85, 100 (3d Cir.
2010) (``The direct tracing of the chain of custody of firearms
involved in crimes is one useful means by which serial numbers
assist law enforcement. But serial number tracing also provides
agencies with vital criminology statistics--including a detailed
picture of the geographical source areas for firearms trafficking
and ``time-to-crime'' statistics which measure the time between a
firearm's initial retail sale and its recovery in a crime--as well
as allowing for the identification of individual dealers involved in
the trafficking of firearms and the matching of ballistics data with
recovered firearms'' (footnotes omitted).); Following the Gun:
Enforcing Federal Laws Against Firearms Traffickers, ATF at 1, 26
(2000) (serial number obliteration is a clear indicator of firearms
trafficking to, among other criminals, armed narcotics traffickers).
\37\ See, e.g., Abramski v. United States, 573 U.S. 169, 192
(2014); Marshall v. Virginia, 822 SE2d 389, 392-93 (Va. Ct. App.
2019); Shirley v. Glass, 297 Kan. 888 (2013); Pennsylvania v.
Baxter, 956 A.2d 465, 472 (Pa. Super. Ct. 2008).
\38\ See, e.g., United States v. Powell, 467 F. Supp. 3d 360,
368, 374 (E.D. Va. 2020) (indictment charging false statements on
ATF Form 4473 in connection with the purchase of specific handguns
listed by date of purchase, make, caliber, model, serial number, and
name of FFL); United States v. McCurdy, 634 F. Supp. 2d 118, 121-22,
126 (D. Me. 2009) (denial of a motion for a new trial discussing
whether the firearm sold as documented on the ATF Form 4473 and the
firearm introduced at trial were the same).
\39\ The lack of firearm description information in theft/loss
reports makes it difficult for ATF to match recovered firearms with
those reported as lost or stolen, thereby hindering ATF's efforts to
enforce the numerous provisions of the GCA that prohibit thefts. See
18 U.S.C. 922(i) (transporting or shipping stolen firearms in
interstate or foreign commerce); 18 U.S.C. 922(j) (receiving,
possessing, concealing, storing, bartering, selling, disposing, or
pledging or accepting as security for a loan any stolen firearm
which has moved in interstate or foreign commerce); 18 U.S.C. 922(u)
(stealing a firearm that has been shipped or transported in
interstate or foreign commerce from the person or premises of an
FFL); 18 U.S.C. 924(l) (stealing a firearm which is moving in or has
moved in interstate commerce); 18 U.S.C. 924(m) (stealing a firearm
from a licensee).
---------------------------------------------------------------------------
C. Advanced Notice of Proposed Rulemaking on Identification Markings
Placed on Firearm Silencers and Firearm Mufflers
The NPRM noted that on May 4, 2016, the Department published an
advance notice of proposed rulemaking (``ANPRM'') in the Federal
Register. 86 FR 27728 n.50 (citing 81 FR 26764). The ANPRM was issued
in response to a petition filed on behalf of the National Firearms Act
Trade and Collectors Association (``NFATCA''), a trade group
representing the firearms and import community. The petitioner
requested that the relevant regulations be amended to require that a
silencer be marked on the outer tube as opposed to other locations,
such as an end cap that might be damaged when a projectile passes
through it, unless a variance is granted by the Director on a case-by-
case basis for good cause. ATF found that the petitioner raised valid
concerns.
Under the GCA, licensed manufacturers and importers must identify
the frame or receiver of each firearm, including a firearm muffler or
silencer, with a serial number in accordance with regulations. 18
U.S.C. 921(a)(3)(C), 923(i). The NFA requires firearm manufacturers,
importers, and makers to identify each firearm, including a firearm
muffler or silencer, with a serial number and such other identification
as may be prescribed by regulations. 26 U.S.C. 5842(a), 5845(a)(7).
Because the NFA defines each individual part of a firearm muffler or
silencer as a ``firearm'' \40\ that must be registered in the NFRTR,
the regulations currently assume that every part defined as a silencer
must be marked in order to be registered, and expressly require that
each part be marked whenever sold, shipped, or otherwise disposed of
even though it may have been installed by a qualified licensee within a
complete muffler or silencer device.\41\
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\40\ A firearm ``muffler or silencer'' is defined to include
``any combination of parts'' designed and intended for the use in
assembling or fabricating a firearm silencer or muffler and ``any
part intended only for use in such assembly or fabrication.'' 18
U.S.C. 921(a)(24); 26 U.S.C. 5845(a)(7); 27 CFR 478.11, 479.11. This
rule defines the term ``complete muffler or silencer device'' not to
exempt individual silencer parts from the definition of firearm
``muffler or silencer'' subject to the requirements of the NFA, but
to advise industry members when those individual silencer parts must
be marked and registered in the NFRTR when they are used in
assembling, fabricating, or repairing a muffler or silencer device.
\41\ See 27 CFR 479.101(b), 478.92(a)(4)(iii), 479.102(f)(1).
---------------------------------------------------------------------------
The ANPRM explained that, along with industry members, ATF
considers the term ``outer tube'' to mean the largest external part of
a silencer and is that portion of a silencer that encapsulates all
components of the silencing unit, and which contains and controls the
expansion of the escaping gases. 81 FR at 26765. ATF explained that
placing all required markings on the outer tube of a completed firearm
silencer or firearm muffler is the accepted industry standard. In
addition, ATF discussed that requiring identification markings to be
placed on a single part provides consistency of markings throughout the
industry and eliminates the need to re-mark a device in the event an
end cap bearing the markings is damaged and requires replacement. ATF
believed that a more specific marking requirement for firearm
silencers, such as the outer tube, would lead to greater uniformity,
improve public safety, and decrease firearms crimes, including firearms
trafficking. See id.
The ANPRM was used to solicit comments to determine if an amendment
to the regulations that would require placement of
[[Page 24661]]
identification markings on the outer tube of firearm silencers and
mufflers was warranted. In response to the ANPRM, ATF received 48
comments. A few commenters supported issuance of a proposed rule
because they believed it would not violate any constitutional rights
under the Second Amendment, would enhance public safety for the reasons
ATF stated, and would reduce confusion within the industry without
being a financial burden because it is already a standard practice with
many manufacturers. The majority of commenters expressed opposition and
did not want ATF to proceed with any further rulemaking. Specific
reasons for their objection to a proposed rule included a belief that:
(1) ATF lacks legal authority to specify where markings on silencers
must be located and that such a rule would violate the Second
Amendment; (2) the initial NFATCA petition is outdated; (3) there is no
data to support that a new rule would enhance public safety or reduce
firearms trafficking; (4) a new regulation is unnecessary as the
industry is already complying; (5) it is not feasible to comply with
marking on the outer tube of the silencer with specific designs; (6)
the proposed idea hinders technological advances and future designs;
(7) it would create confusion and definitional problems because the
definition of outer tube is outdated; and (8) the industry and public
would incur financial burdens.
Other commenters offered suggestions about outer tube replacement
options especially because silencer tubes wear out over time. They
suggested that a rule would be reasonable if ATF authorizes
manufacturers to repair or replace damaged silencer tubes and engrave
the new tube with the original serial number. Commenters also suggested
alternative locations for silencer markings such as on end caps. They
believed that markings should be placed on the major portion of the
silencer, which could be the end cap or any section of the tube. They
stressed that the outer tube is thin and there is a greater risk of
burning through the metal when engraving and that end caps have greater
thickness to work with when engraving.
Based on further review and the comments received in response to
the ANPRM, ATF incorporated a proposed definition of ``frame or
receiver'' as it applies to firearm mufflers and silencers in the NPRM
to clarify when and how silencer parts are to be marked and registered.
86 FR 27720.
III. Notice of Proposed Rulemaking
On May 21, 2021, the Department published in the Federal Register
an NPRM entitled ``Definition of `Frame or Receiver' and Identification
of Firearms,'' 86 FR 27720, proposing changes to various regulations in
27 CFR parts 447, 478, and 479. Overall, the NPRM proposed amending
ATF's regulations to clarify the definition of ``firearm'' and to
provide a more comprehensive definition of ``frame or receiver'' so
that these terms more accurately reflect how most modern-day firearms
are produced and function, and so that the courts, the firearms
industry, and the public at large would no longer misinterpret the term
to mean that most firearms in circulation have no parts identifiable as
a frame or receiver. The NPRM also proposed new terms and definitions
to account for technological developments and modern terminology in the
firearms industry, as well as proposed amendments to the marking and
recordkeeping requirements that would be necessary to implement these
definitions.
A. Definition of ``Firearm''
In the NPRM, the Department proposed adding a sentence at the end
of the definition of ``firearm'' in 27 CFR 478.11 to reflect existing
case law, providing that ``[t]he term shall include a weapon parts kit
that is designed to or may readily be assembled, completed, converted,
or restored to expel a projectile by the action of an explosive.''
However, the proposed amendment was not intended to affect the
classification of a weapon, including a weapon parts kit, in which the
frame or receiver (as defined in the proposed rule) of such weapon is
properly destroyed. See 86 FR at 27726, 27729-30. Therefore, another
sentence was proposed to be added at the end of the definition of
``firearm'' to provide that ``[t]he term shall not include a weapon,
including a weapon parts kit, in which each part defined as a frame or
receiver of such weapon is destroyed.'' Id. at 27726.
The Department explained in the NPRM that ``firearm'' as defined
under the GCA, 18 U.S.C. 921(a)(3) and 27 CFR 478.11, includes
inoperable weapons even though they will not expel a projectile by the
action of an explosive at the time of sale or distribution if they are
``designed to'' \42\ or ``may readily be converted'' \43\ to expel a
projectile by the
[[Page 24662]]
action of an explosive. Weapon parts kits, or aggregations of weapon
parts, some of which contain all of the components necessary to
complete a functional weapon within a short period of time, have been
increasingly sold to individuals either directly from manufacturers of
the kits or retailers, without background checks or recordkeeping. 86
FR at 27726. Some of these firearm kits include jigs, templates, and
tools that allow the purchaser to complete the weapon fairly or
reasonably efficiently, quickly, and easily to a functional state. Such
weapon parts kits or aggregations of weapon parts that are designed to
or may readily be converted to expel a projectile by the action of an
explosive are also ``firearms'' under 18 U.S.C. 921(a)(3)(A).\44\ This
proposed addition makes explicit that manufacturers and sellers of such
kits or aggregations of weapon parts are subject to the same regulatory
requirements applicable to the manufacture or sale of fully completed
and assembled firearms. See 86 FR at 27726.
---------------------------------------------------------------------------
\42\ Numerous courts have held that weapons designed to expel a
projectile by the action of an explosive are ``firearms'' under 18
U.S.C. 921(a)(3)(A) even if they cannot expel a projectile in their
present form or configuration. See, e.g., United States v. Hardin,
889 F.3d 945, 946-47, 949 (8th Cir. 2018) (pistol with broken
trigger and numerous missing internal parts was a weapon designed to
expel a projectile by the action of an explosive); United States v.
Dotson, 712 F.3d 369, 370-71 (7th Cir. 2013) (saying, in ruling that
a pistol with corroded, missing, and broken components was a
``firearm,'' that ``[a]n airplane is designed to fly; a defect in
manufacture or maintenance that prevents it from flying does not
alter its design''); United States v. Davis, 668 F.3d 576, 577 (8th
Cir. 2012) (holding that a pistol with no trigger was a ``firearm''
within the meaning of section 2K2.1(a)(3)(A)(i) of the Sentencing
Guidelines and applying ``the same reasoning [that courts have
applied in section 921(a)(3) cases] to Guidelines provisions that
incorporate the Sec. 921(a)(3) definition''); United States v.
Counce, 445 F.3d 1016, 1018 (8th Cir. 2006) (handgun with missing
safety); United States v. Rivera, 415 F.3d 284, 285-87 (2d Cir.
2005) (pistol with a broken firing pin and flattened firing-pin
channel); United States v. Morales, 280 F. Supp. 2d 262, 272-73
(S.D.N.Y. 2003) (partially disassembled Tec-9 pistol was designed to
expel a projectile); United States v. Adams, 137 F.3d 1298, 1300 &
n.2 (11th Cir. 1998) (potentially inoperable shotgun); United
States. v. Brown, 117 F.3d 353 (7th Cir. 1997) (holding that a gun
with no firing pin was a ``firearm'' within the meaning of section
2B3.1(b)(2)(C) of the Sentencing Guidelines, and discussing
analogous cases interpreting section 921(a)(3)(A)); United States v.
Reed, 114 F.3d 1053 (10th Cir. 1997) (shotgun with broken breech
bolt); United States v. Hunter, 101 F.3d 82 (9th Cir. 1996) (holding
that the sentence enhancement for use of a semiautomatic weapon in
section 924(c) applied to a pistol with broken firing pin); United
States v. Yannott, 42 F.3d 999, 1005-07 (6th Cir. 1994) (shotgun
with broken firing pin); United States v. Ruiz, 986 F.2d 905, 910
(5th Cir. 1993) (revolver with hammer filed down); United States v.
York, 830 F.2d 885, 891 (8th Cir. 1987) (revolver with no firing pin
and cylinder did not line up with barrel); United States v. Thomas,
No. 17-194 (RDM), 2019 WL 4095569, at *4 (D.D.C. Aug. 29, 2019) (in
ruling that a revolver missing its hammer, hammer screw, trigger,
cylinder stop, hand, ejector rod housing, base pin, screw, nut,
spring, loading gate detent and spring and miscellaneous screws was
a ``firearm,'' the court said: ``[t]he Titanic was, after all,
`designed' to be unsinkable''). But see Dotson, 712 F.3d at 371 (a
Beretta pistol redesigned to be a cigarette lighter); Rivera, 415
F.3d at 286-87 (``[A] gun with a barrel filled with lead, maybe for
use as a theatrical prop, might perhaps no longer be deemed
`designed to' or `readily be converted' to fire a bullet.''); United
States v. Wada, 323 F. Supp. 2d 1079 (D. Or. 2004) (firearms
redesigned as ornaments that ``would take a great deal of time,
expertise, equipment, and materials to attempt to reactivate'' were
no longer designed to expel a projectile by the action of an
explosive, and could not readily be converted to do so).
\43\ See, e.g., United States v. Mullins, 446 F.3d 750, 756 (8th
Cir. 2006) (starter gun that can be modified in less than one hour
by a person without any specialized knowledge to fire may be
considered ``readily convertible'' under the GCA); United States v.
16,179 Molso Italian .22 Caliber Winlee Derringer Convertible
Starter Guns, 443 F.2d 463 (2d Cir. 1971) (starter guns converted in
no more than 12 minutes to fire live ammunition were readily
convertible under the GCA); United States v. Morales, 280 F. Supp.
2d 262, 272-73 (S.D.N.Y. 2003) (partially disassembled Tec-9 pistol
that could be assembled within a short period of time could readily
be converted to expel a projectile). Cf. United States v. Dodson,
519 F. App'x 344, 352-53 (6th Cir. 2013) (gun that was restored with
90 minutes of work, using widely available parts and equipment and
common welding techniques, fit comfortably within the readily
restorable standard of 26 U.S.C. 5845(b)); United States v. TRW
Rifle 7.62x51mm Caliber, One Model 14 Serial 593006, 447 F.3d 686,
692 (9th Cir. 2006) (a two-hour restoration process using ordinary
tools, including a stick weld, is within the ordinary meaning of
``readily restored''); United States v. One TRW, Model M14, 7.62
Caliber Rifle, 441 F.3d 416, 422-24 (6th Cir. 2006) (``[T]he
Defendant weapon here had all of the necessary parts for restoration
and would take no more than six hours to restore.''); United States
v. Woods, 560 F.2d 660, 664 (5th Cir. 1977) (holding that a weapon
was a shotgun within the meaning of 26 U.S.C. 5845(d) and stating
``[t]he fact that the weapon was in two pieces when found is
immaterial considering that only a minimum of effort was required to
make it operable.''); United States v. Smith, 477 F.2d 399, 400-01
(8th Cir. 1973) (machinegun that would take around an eight-hour
working day in a properly equipped machine shop was readily restored
to shoot); United States v. Catanzaro, 368 F. Supp. 450, 453 (D.
Conn. 1973) (a sawed-off shotgun was ``readily restorable to fire''
where it could be reassembled in one hour and the necessary missing
parts could be obtained at a Smith & Wesson plant). But see United
States v. Seven Miscellaneous Firearms, 503 F. Supp. 565, 574-75
(D.D.C. 1980) (weapons could not be ``readily restored to fire''
when restoration required master gunsmith in a gun shop and $65,000
worth of equipment and tools).
\44\ See, e.g., United States v. Wick, 697 F. App'x 507, 508
(9th Cir. 2017) (complete UZI parts kits ``could `readily be
converted to expel a projectile by the action of an explosive,'
meeting the statute's definition of firearm under Sec.
921(a)(3)(A)'' because the ``kits contained all of the necessary
components to assemble a fully functioning firearm with relative
ease''); United States v. Stewart, 451 F.3d 1071, 1072-73, 1073 n.2
(9th Cir. 2006) (upholding district court's finding that .50 caliber
rifle kits with incomplete receivers were ``firearms'' under section
921(a)(3)(A) because they could easily be converted to expel a
projectile); United States v. Theodoropoulos, 866 F.2d 587, 595 n.3
(3d Cir. 1989), overruled in part on other grounds by United States
v. Price, 76 F.3d 526, 528 (3d Cir. 1996) (disassembled machine
pistol that that could easily be made operable was a firearm under
section 921(a)(3)(A)); United States v. Morales, 280 F. Supp. 2d
262, 272-73 (S.D.N.Y. 2003) (partially disassembled Tec-9 pistol
that could be assembled within short period of time could readily be
converted to expel a projectile was a firearm under section
921(a)(3)(A)); United States v. Randolph, No. 02 CR. 850-01 (RWS),
2003 WL 1461610, at *2 (S.D.N.Y. Mar. 20, 2003) (gun consisting of
``disassembled parts with no ammunition, no magazine, and a broken
firing pin, making it incapable of being fired without replacement
or repair'' was a ``firearm'' under section 921(a)(3)(A) because it
could be readily converted to expel a projectile and included the
frame or receiver of such a weapon); cf. United States v. Annis, 446
F.3d 852, 857 (8th Cir. 2006) (partially disassembled rifle that
could easily be made operational was a firearm under sentencing
guidelines); United States v. Ryles, 988 F.2d 13, 16 (5th Cir. 1993)
(same with disassembled shotgun that could have been readily
converted to an operable firearm); Enamorado v. United States, No.
C16-3029-MWB, 2017 WL 2588428, at *6 (N.D. Iowa June 14, 2017) (same
with disassembled .45 caliber handgun that could easily be
reassembled).
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B. Definition of ``Frame or Receiver''
The Department proposed to revise the definition of ``frame or
receiver'' with a multi-part definition. First proposed was a general
definition of ``frame or receiver'' with nonexclusive examples that
illustrated the definition. This was followed by four proposed
supplements, described below, that further explained the meaning of the
term ``frame or receiver'' for certain firearm designs and
configurations. Although the proposed definition was intended to more
broadly define the term ``frame or receiver'' than the current
definition, it was not intended to alter any prior determinations by
ATF regarding which specific part of a given weapon it considered the
frame or receiver. The NPRM also proposed to codify in the regulations
the factors ATF considers when classifying the frame or receiver of a
firearm.
1. General Definition of ``Frame or Receiver''
As a threshold matter, the NPRM proposed that the new definition,
with a partial exception for an internal frame or chassis, make clear
that each frame or receiver be visible to the exterior when the
complete weapon is assembled so that licensees and law enforcement can
quickly and easily identify the markings. Next, the NPRM proposed
defining the term ``frame or receiver'' more broadly as a part that
provides housing or a structure designed to hold or integrate any fire
control component, which would have included, at a minimum, any housing
or holding structure for a hammer, bolt, bolt carrier, breechblock,
cylinder, trigger mechanism, firing pin, striker, or slide rails.
However, the proposed definition would not have been limited to those
particular fire control components \45\ and was proposed to be general
enough to encompass changes in technology and parts terminology. For
further clarity, four nonexclusive examples with illustrations of
common single-framed firearms were provided. See 86 FR at 27727, 27742.
Finally, the proposed definition stated that persons who may acquire or
possess a part now defined as a frame or receiver that is identified
with a serial number must presume, absent an official determination by
ATF or other reliable evidence to the contrary, that the part is a
firearm frame or receiver without further guidance.
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\45\ The prefatory paragraph to the definitional sections in the
GCA and NFA regulations explain that ``[t]he terms `includes' and
`including' do not exclude other things not enumerated which are in
the same general class or are otherwise within the scope thereof.''
27 CFR 478.11, 479.11.
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2. Definition of ``Firearm Muffler or Silencer Frame or Receiver''
The first proposed supplement to define the term ``frame or
receiver'' as it applies to a ``firearm muffler or silencer frame or
receiver'' and to add a new term ``complete muffler or silencer
device'' is further discussed in Section III.D of this preamble. The
NPRM proposed that in the case of a firearm muffler or firearm
silencer, the frame or receiver is a part of the firearm that is
visible from the exterior of a completed device and provides a housing
or a structure designed to hold or integrate one or more essential
internal components of the device.
As described in Section II.C of this preamble, the GCA's marking
requirement and the GCA/NFA's definition of firearm ``muffler or
silencer'' (sometimes referred to as a ``sound suppressor'') and its
marking requirements have caused confusion and concern among many
silencer manufacturers over the years. The NPRM explained that some
silencer parts defined as ``silencers,'' such as baffles, are difficult
for manufacturers to mark and listed examples of the ATF forms that
manufacturers would have difficulty filing and processing in a timely
manner. 86 FR at 27728. The Department also explained that it makes
little sense to mark all silencer parts for tracing purposes when the
outer tube or housing of the complete device is marked and registered.
Id. at 27727-28.
For these reasons, the new definitions were proposed to clarify for
manufacturers and makers of complete muffler or silencer devices that
they need only mark the one part of the device defined as the frame or
receiver under the proposed rule. However, individual muffler or
silencer parts were proposed to be marked if they are disposed of
separately from a complete
[[Page 24663]]
device unless transferred by manufacturers qualified under the NFA to
other qualified licensees for the manufacture or repair of complete
devices.\46\
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\46\ This rule is consistent with ATF enforcement policy. See
footnote 58, infra.
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3. Definition of ``Split or Modular Frame or Receiver''
The second proposed supplement to the general definition sought to
capture the majority of firearms that now use a split design as
discussed above. It sought to clarify that even though a firearm,
including a silencer, may have more than one part that falls within the
definition of ``frame or receiver,'' ATF may classify a specific part
or parts to be the ``frame or receiver'' of a particular weapon. It
then set forth the various factors ATF would consider in making this
determination with no single factor controlling. See 86 FR at 27728-29,
27743. It also proposed the clarification that ``[f]rames or receivers
of different weapons that are combined to create a similar weapon each
retain their respective classifications as frames or receivers provided
they retain their original design and configuration.'' Id. at 27734.
To ensure that the proposed definition of ``split or modular frame
or receiver'' did not affect existing ATF classifications that
specified a single component as the frame or receiver, the definition
included a nonexclusive list of common weapons with a split or modular
frame or receiver configuration for which ATF previously determined a
specific part to be the frame or receiver. See id. at 27729, 27743-46.
The NPRM explained that a manufacturer or importer of one of these
firearm designs, as they would exist as of the final rule's date of
publication, could refer to this list to know which part is the frame
or receiver, thereby allowing the manufacturer or importer to mark a
single part without seeking a determination from ATF. However, if there
was to be a present or future split or modular design for a firearm
that was not comparable to an existing classification, then the
proposed definition of ``frame or receiver'' would advise, absent a
variance or classification from ATF, that more than one part is the
frame or receiver subject to marking and other requirements.
4. Definition of ``Partially Complete, Disassembled, or Inoperable
Frame or Receiver''
The third supplement proposed to define ``frame or receiver'' as
including frames or receivers that are partially complete,
disassembled, or inoperable, or a frame or receiver that has reached a
stage in manufacture where it may readily be completed, assembled,
converted, or restored to a functional state. The NPRM stated that, to
determine this status, ``the Director may consider any available
instructions, guides, templates, jigs, equipment, tools, or marketing
materials.'' 86 FR at 27729, 27746. ``Partially complete,'' for
purposes of this definition, was proposed to mean a forging, casting,
printing, extrusion, machined body, or similar article at a stage in
manufacture where it is clearly identifiable as an unfinished component
part of a weapon.
The NPRM explained that this supplemental definition aimed to
address when an object becomes a frame or receiver such that it is a
regulated article. The NPRM stated that partially complete or
unassembled frames or receivers, commonly called ``80% receivers,''
\47\ are often sold in kits where the frame or receiver can readily be
completed or assembled to a functional state. See id. at 27729 n.54.
The Department stated that the supplemental definition is necessary for
clarity because companies are not running background checks or
maintaining transaction records when they manufacture and sell these
kits. Accordingly, prohibited persons have easily obtained them \48\
and, when recovered, they are nearly impossible to trace. The proposed
definition also sought to make clear that unformed blocks of metal, and
other similar articles only in a primordial state \49\ would not--
without more processing--be considered a ``partially complete'' frame
or receiver that is captured under the definition of ``frame or
receiver.''
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\47\ The term ``80% receiver'' is a term used by some industry
members, the public, and the media to describe a frame or receiver
that has not yet reached a stage of manufacture to be classified as
a ``frame or receiver'' under Federal law. However, that term is
neither found in Federal law nor accepted by ATF.
\48\ See 86 FR at 27729 n.55; see also Gene Johnson, Felon on
supervision accused of having `ghost gun' arsenal, Associated Press
(Feb. 28, 2020), available at <a href="https://apnews.com/article/cc61d48e83a2c8113cdb1e1ed6fe6006">https://apnews.com/article/cc61d48e83a2c8113cdb1e1ed6fe6006</a> (last visited Mar. 23, 2022); Sarah
Cassi, Lehigh Valley felon was using 3D printer to make `ghost guns'
at home, Pa. attorney general says,<a href="http://LehighValleyLive.com">LehighValleyLive.com</a> (June 29,
2021), available at <a href="https://www.lehighvalleylive.com/northampton-county/2021/06/lehigh-valley-felon-was-using-3d-printer-to-make-ghost-guns-at-home-pa-attorney-general-says.html">https://www.lehighvalleylive.com/northampton-county/2021/06/lehigh-valley-felon-was-using-3d-printer-to-make-ghost-guns-at-home-pa-attorney-general-says.html</a> (last visited Mar.
23, 2022); Deputy recovers `ghost gun' from convicted felon during
traffic stop, Fontana Herald News (Aug. 10, 2021), available at
<a href="https://www.fontanaheraldnews.com/news/inland_empire_news/deputy-recovers-ghost-gun-from-convicted-felon-during-traffic-stop/article_3cfe0fd0-f4a3-11eb-bd31-03979dc83307.html">https://www.fontanaheraldnews.com/news/inland_empire_news/deputy-recovers-ghost-gun-from-convicted-felon-during-traffic-stop/article_3cfe0fd0-f4a3-11eb-bd31-03979dc83307.html</a> (last visited Mar.
23, 2022); Parolee Arrested With AR-15 Ghost Gun, Fake Law
Enforcement Badge, NBC Palm Springs (Aug. 13, 2021), available at
<a href="https://nbcpalmsprings.com/2021/08/13/parolee-arrested-with-ar-15-ghost-gun-fake-law-enforcement-badge">https://nbcpalmsprings.com/2021/08/13/parolee-arrested-with-ar-15-ghost-gun-fake-law-enforcement-badge</a> (last visited Mar. 23, 2022);
Georgetown Arrest of a Felon Leads to Recovery of Ghost Gun, Seattle
Police Department (Nov. 8, 2021), available at <a href="https://spdblotter.seattle.gov/2021/11/08/georgetown-arrest-of-a-felon-leads-to-recovery-of-ghost-gun">https://spdblotter.seattle.gov/2021/11/08/georgetown-arrest-of-a-felon-leads-to-recovery-of-ghost-gun</a> (last visited Mar. 23, 2022).
\49\ As used in this rule, the term ``primordial'' refers to an
item, such as an unmachined block of metal, liquid polymer, or other
raw material that is in its original natural form or at an early
stage of development without substantial processing. See Primordial,
Oxford English Dictionary, available at <a href="https://www.oed.com/view/Entry/151373?redirectedFrom=primordial#eid">https://www.oed.com/view/Entry/151373?redirectedFrom=primordial#eid</a> (last visited Mar. 23,
2022) (``that [which] constitutes the origin or starting point from
which something else is derived or developed'').
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5. Definition of ``Destroyed Frame or Receiver''
The fourth supplement proposed to exclude from the definition of
``frame or receiver'' any frame or receiver that has been destroyed.
This proposed definition described a destroyed frame or receiver as one
permanently altered not to provide housing or a structure that may hold
or integrate any fire control or essential internal component, and that
may not readily be assembled, completed, converted, or restored to a
functional state. The proposed definition set forth nonexclusive
acceptable methods of destruction, which had been provided by ATF in
its past guidance.\50\
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\50\ See 86 FR at 27729, 27746.
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C. Definition of ``Readily''
The Department proposed to add the term ``readily'' to 27 CFR
478.11 and 479.11 and define it as ``a process that is fairly or
reasonably efficient, quick, and easy, but not necessarily the most
efficient, speedy, or easy process.'' 86 FR at 27730, 27747, 27751. It
further listed factors relevant in applying this proposed definition,
such as time, ease, expertise, equipment, availability, expense, scope,
and feasibility, with brief examples describing these factors. Id. The
proposed definitions and factors are based on case law interpreting
``may readily be converted to expel a projectile'' in 18 U.S.C.
921(a)(3)(A) and ``can be readily restored to shoot'' in 26 U.S.C.
5845(b)-(d). See id. at 27730 & n.58. The NPRM explained that defining
the term ``readily'' was necessary to determine when a weapon,
including a weapon parts kit, a partially complete or damaged frame or
receiver, or an aggregation of weapon parts becomes a ``firearm''
regulated under the GCA and NFA.
[[Page 24664]]
D. Definitions of ``Complete Weapon'' and ``Complete Muffler or
Silencer Device''
The Department proposed to add the terms ``complete weapon'' and
``complete muffler or silencer device'' to 27 CFR 478.11 and 479.11.
The proposed definition of a ``complete weapon'' was a firearm, whether
or not assembled or operable, containing all component parts necessary
to function as designed but not a firearm muffler or silencer device.
86 FR at 27730. The proposed definition of a ``complete muffler or
silencer device'' was a firearm muffler or firearm silencer, whether or
not assembled or operable, containing all of the component parts
necessary to function as designed. Id. These terms were proposed to
explain when a frame or receiver of a firearm, including a firearm
muffler or silencer, as the case may be, must be marked for
identification.
E. Definition of ``Privately Made Firearm''
The NPRM proposed adding the term ``privately made firearm'' to 27
CFR 478.11 and to define it as a firearm, including a frame or
receiver, assembled by a person other than a licensed manufacturer, and
not containing a serial number or other identifying marking placed by a
licensed manufacturer at the time the firearm was produced. See 86 FR
at 27730. The term would not include a firearm identified and
registered in the NFRTR pursuant to 26 U.S.C., chapter 53, or any
firearm made before October 22, 1968 (unless remanufactured after that
date).\51\
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\51\ The Federal Firearms Act of 1938 (repealed), the
predecessor to the GCA, made it unlawful for a person to receive in
interstate or foreign commerce a firearm that had the manufacturer's
serial number removed, obliterated, or altered. 15 U.S.C. 902(i)
(1940). Regulations promulgated to implement this law required each
firearm manufactured after July 1, 1958, to be identified with the
name of the manufacturer or importer, a serial number, caliber, and
model. However, there was an exception from the serial number and
model requirements for any shotgun or .22 caliber rifle unless that
firearm was also subject to the NFA. 26 CFR 177.50 (1959)
(rescinded).
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F. Definition of ``Importer's or Manufacturer's Serial Number''
The Department proposed to add the term ``importer's or
manufacturer's serial number'' in 27 CFR 478.11 and to define it as the
identification number, licensee name, licensee city or State, or
license number placed by a licensee on a firearm frame or receiver or
on a PMF. The NPRM explained that a serial number incorporating the
abbreviated FFL number (also known in industry as the ``RDS key'')
placed by a licensee on a PMF under the proposed rule met the
definition of the ``importer's or manufacturer's serial number.'' The
Department also explained that the proposed definition would help
ensure that the serial numbers and other markings necessary to ensure
tracing are considered the ``importer's or manufacturer's serial
number'' protected by 18 U.S.C. 922(k) and numerous State laws, which
prohibit possession of firearms with serial numbers that have been
removed, obliterated, or altered. See 86 FR at 27730 n.62.
G. Definition of ``Gunsmith'' \52\
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\52\ The term ``gunsmith'' is not used in the GCA; however, the
Firearm Owners' Protection Act, Public Law 99-308 (1986), amended
the GCA to define ``engaged in the business'' as applied to dealers
to clarify when gunsmiths must have a license. See 18 U.S.C.
921(a)(11)(B), (a)(21)(D); 132 Cong. Rec. 9603-04 (1986) (statement
of Sen. McClure).
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The Department proposed to amend the definition of ``engaged in the
business'' as it applies to a ``gunsmith'' in 27 CFR 478.11 to clarify
that businesses may be licensed as dealer-gunsmiths rather than as
manufacturers if they routinely repair or customize existing firearms,
make or fit special barrels, stocks, or trigger mechanisms, or mark
firearms as a service performed on firearms not for sale or
distribution by a licensee.\53\ The proposed amendment was also for the
purpose of providing greater access to professional marking services so
that persons who engage in the business of identifying firearms for
nonlicensees may become licensed as dealer-gunsmiths solely to provide
professional PMF marking services.
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\53\ This rule would supersede ATF Ruling 2010-10, which allows
gunsmiths under specified conditions to engage in certain
manufacturing activities for licensed manufacturers. This change was
proposed to eliminate a significant source of confusion among
regulated industry members and the public as to who needs a license
to manufacture firearms. See Broughman v. Carver, 624 F.3d 670 (4th
Cir. 2010) (distinguishing dealer-gunsmiths from manufacturers).
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H. Marking Requirements for Firearms
1. Information Required to be Marked on the ``Frame or Receiver''
To properly implement the new definitions, the Department proposed
to amend 27 CFR 478.92(a) and 479.102 to explain how and when markings
must be applied on each part defined as a frame or receiver,
particularly since there could have been more than one part of a
complete weapon, or complete muffler or silencer device, which is the
frame or receiver (i.e., when ATF has not identified specific part(s)
as the frame or receiver). Under the NPRM, each frame or receiver of a
new firearm design or configuration manufactured or imported after the
publication of the final rule was proposed to be marked with a serial
number, and either: (a) The manufacturer's or importer's name (or
recognized abbreviation), and city and State (or recognized
abbreviation) where the manufacturer or importer maintains their place
of business, or in the case of a maker of an NFA firearm, where the
firearm was made; or (b) the manufacturer's or importer's name (or
recognized abbreviation), and the serial number beginning with the
licensee's abbreviated FFL number as a prefix, which is the first three
and last five digits, followed by a hyphen, and then followed by a
number (which may incorporate letters and a hyphen) as a suffix, e.g.,
``12345678-[number].'' The serial number (with or without the FFL
prefix) identified on each part of a weapon defined as a frame or
receiver was proposed to be the same number, but could not duplicate
any serial number(s) placed by the licensee on any other firearm.
The NPRM proposed that licensed manufacturers and importers could
continue to identify the additional information on firearms (other than
PMFs) of the same design and configuration as they existed before the
effective date of the final rule under the prior content rules, and any
rules necessary to ensure such identification would have remained
effective for that purpose. This proposed provision was intended to
make the transition easier and reduce production costs incurred by
licensees.
Except for silencer parts transferred by manufacturers to other
qualified manufacturers and dealers for completion or repair of
devices, no change was proposed to the existing requirement that each
part defined as a machinegun or silencer that is disposed of separately
and not part of a complete weapon or device be marked with all required
information, because individual machinegun conversion and silencer
parts are ``firearms'' under the NFA that must be registered in the
NFRTR. 26 U.S.C. 5841(a)(1), 5845(a), (b). However, for frames and
receivers, and individual machinegun conversion or silencer parts
defined as ``firearms'' that are disposed of separately, the proposed
rule allowed the model designation and caliber or gauge to be omitted
if it is unknown at the time the part is identified. See 86 FR at
27731.
2. Size and Depth of Markings
The Department did not propose changes to the existing requirements
for size and depth of markings in 27 CFR
[[Page 24665]]
478.92(a)(1) and 479.102(a), but for sake of clarity, proposed to
consolidate them into a standalone paragraph.
3. Period of Time To Identify Firearms
The Department proposed to identify the point at which
manufacturers would be required to place markings on firearms. The NPRM
proposed that complete weapons or complete muffler or silencer devices,
as defined in the rule, would be allowed to be marked up to seven days
from completion of the active manufacturing process for the weapon or
device, or prior to disposition, whichever is sooner. Except for
silencer parts produced by qualified manufacturers for transfer to
other licensees to complete or repair silencer devices, parts defined
as a frame or receiver, machinegun, or firearm muffler or firearm
silencer that are not component parts of a complete weapon or device
when disposed of would be allowed to be marked up to seven days
following the date of completion of the active manufacturing process
for the part, or prior to disposition, whichever is sooner. Adding this
proposed language would codify ATF Ruling 2012-1, which explained that,
whether the end product is to become a complete weapon or device, or a
frame or receiver to be disposed of separately, it is reasonable for a
licensed manufacturer to have seven days following the date of
completion of the entire manufacturing process in which to mark a
firearm manufactured and record its identifying information in the
manufacturer's permanent records.
4. Marking of ``Privately Made Firearms''
The Department proposed to amend 27 CFR 478.92 to require FFLs to
mark, or supervise the marking of, the same serial number on each part
of the weapon defined as frame or receiver (as defined in the rule) of
a PMF that the licensee acquired, but not duplicate any serial
number(s) placed on any other firearm. The marking would begin with the
FFL's abbreviated license number (first three and last five digits) as
a prefix, followed by a hyphen, and then followed by a number as a
suffix (e.g., ``12345678-[number]''). Unless previously identified by
another licensee, PMFs acquired by licensees on or after the effective
date of the rule were proposed to be marked in this manner within seven
days of receipt or other acquisition (including from a personal
collection), or before the date of disposition (including to a personal
collection), whichever is sooner.\54\ For PMFs acquired by licensees
before the effective date of the rule, the proposed rule would require
licensees to mark or cause them to be marked by another licensee either
within 60 days from the effective date of a final rule, or before the
date of final disposition (including to a personal collection),
whichever is sooner.\55\
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\54\ Under this rule, licensed collectors would only need to
mark PMFs they receive that are defined as ``curios or relics.'' See
27 CFR 478.11 (definitions of ``firearm'' and ``curios or relics'').
\55\ Handguns that are 3D-printed are also subject to the
registration and taxation requirements of the NFA if they have a
smooth bore and are capable of being concealed on the person,
thereby falling within the definition of ``any other weapon'' under
the NFA. See 26 U.S.C. 5845(e).
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Consistent with the language and purpose of the GCA, the NPRM
explained that this proposed provision was necessary to allow ATF to
trace all firearms acquired and disposed of by licensees, prevent
illicit firearms trafficking, and provide procedures for FFLs and the
public to follow with respect to PMF transactions with the licensed
community. The proposed rule further noted that this provision was
crucial in light of advances in technology that allow unlicensed,
including prohibited, persons easily and repeatedly to produce firearms
at home from parts ordered online, or by using 3D printers or
personally owned or leased equipment. Such privately made firearms have
made and will continue to make their way to the primary market in
firearms through the licensed community.\56\
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\56\ Under Federal law, for example, certain firearm
transactions must be conducted through FFLs. See 18 U.S.C. 922(a)(5)
(prohibiting any person other than a licensee, subject to certain
limited exceptions, from selling or delivering a firearm to an
unlicensed out-of-state resident).
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At the same time, nothing in the proposed rule restricted persons
who are not otherwise prohibited from possessing firearms from making
their own firearms without markings solely for personal use, nor did
the proposed rule require individuals to mark PMFs when they
occasionally acquire them for a personal collection, or sell or
transfer them from a personal collection to unlicensed in-State
residents in accordance with Federal, State, and local law. Further,
the NPRM would not require FFLs to accept any PMFs, or to mark PMFs
themselves, or to provide services to place identification marks on
PMFs. Licensees would be able to arrange for individuals who wish to
transfer PMFs to licensees to have them marked by another licensee
before accepting them, provided they are properly marked in accordance
with the proposed rule.
5. Meaning of Marking Terms
An additional amendment to 27 CFR 478.92 and 478.102 was proposed
to clarify the meaning of the terms ``legible'' and ``legibly'' to
ensure that ``the identification markings use exclusively Roman letters
(e.g., A, a, B, b, C, c) and Arabic numerals (e.g., 1, 2, 3), or solely
Arabic numerals, and may include a hyphen,'' and that the terms
``conspicuous'' and ``conspicuously'' are understood to mean that the
identification markings are capable of being easily seen and
unobstructed by other markings when the firearm is assembled. 86 FR at
27733. These would clarify the meaning of those terms as explained in
ATF Ruling 2002-6 (``legible''), and ATF's final rule at 66 FR 40599
(Aug. 3, 2001) (referencing U.S. Customs Service regulations on the
definition of ``conspicuous'').
6. Alternate Means or Period of Identification
The proposed rule would not alter the Director's existing ability
to authorize other means of identification, or a ``marking variance,''
for any part defined as a firearm (including a machinegun or a
silencer), or the process for such a variance.
7. Destructive Device Period of Identification
The proposed rule specified a seven-day grace period in which to
mark all completed firearms, including destructive devices (similar to
other firearms), and would have allowed ATF to grant a variance from
this period. There were no proposed changes to the marking requirements
for destructive devices.
8. Adoption of Identifying Markings
The Department proposed allowing licensed manufacturers and
importers to adopt an existing serial number, caliber/gauge, model, or
other markings already identified on a firearm, provided that they
legibly and conspicuously place, or cause to be placed, on each part
(or part(s)) defined as a frame or receiver, either the FFL's name (or
recognized abbreviation), and city and State (or recognized
abbreviation) where they maintain their place of business; or their
name (or recognized abbreviation) and their abbreviated FFL number, as
described in Section III.H.1 of this preamble, followed by the existing
serial number (including any other abbreviated FFL prefix) as a suffix,
e.g., ``12345678-[serial number],'' to ensure the traceability of the
firearm. This language was proposed to supersede ATF Ruling 2013-3 as
it applied to licensed manufacturers and importers.
[[Page 24666]]
The proposal was aimed at avoiding multiple markings on firearms that
could be confusing to law enforcement and alleviate concerns of some
manufacturers and importers regarding serial number duplication when
firearms are remanufactured or imported.
9. Firearm Muffler or Silencer Parts Transferred Between Qualified
Licensees
Licensed and qualified firearm muffler or silencer manufacturers
routinely transfer small internal muffler or silencer components to
each other to produce complete devices. Licensees qualified under the
NFA routinely do the same when repairing existing devices. Because of
the difficulties and expense of marking and registering small
individual components used to commercially manufacture a complete
muffler or silencer device with little public safety benefit, the NPRM
proposed to allow qualified manufacturers to transfer parts defined as
a firearm muffler or silencer to other qualified manufacturers without
immediately identifying or registering them. Once the new device was
completed with the part, the manufacturer would be required to identify
and register the device in the manner and within the period specified
in the proposed rule for a complete device. Likewise, the NPRM proposed
to allow qualified manufacturers to transfer muffler or silencer
replacement parts to qualified manufacturers and dealers to repair
existing devices already identified and registered in the NFRTR.
Further, the rule proposed to amend the definition of ``transfer'' to
clarify that temporary conveyance of a lawfully possessed NFA firearm,
including a silencer, to a qualified manufacturer or dealer for the
sole purpose of repair, identification, evaluation, research, testing,
or calibration, and return to the same lawful possessor is not a
``transfer'' requiring additional identification or registration in the
NFRTR.\57\ The proposed changes were intended to reduce the practical
and administrative problems of marking and registering silencer parts
by the regulated industry, and to avoid a potential resource burden on
ATF to process numerous tax-exempt registration applications with
little public safety benefit.\58\
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\57\ The definition of ``transfer'' in the NFA only includes
``selling, assigning, pledging, leasing, loaning, giving away, or
otherwise disposing of'' a firearm. 26 U.S.C. 5845(j); see also
United States v. Smith, 642 F.2d 1179, 1182 (9th Cir. 1981) (``We
cannot agree that Congress intended to impose a transfer tax and
require registration whenever mere physical possession of a firearm
is surrendered for a brief period.'').
\58\ These changes are consistent with ATF enforcement policy.
See NFA Handbook, ATF E-Publication 5320.8, sec. 7.4.6, p.46, sec.
9.5.1, p. 60 (revised April 2009). With regard to silencer repairs,
in order to avoid any appearance that an unlawful ``transfer'' has
taken place, ATF recommends that an Application for Tax Exempt
Transfer and Registration of Firearm, ATF Form 5, be submitted for
approval prior to conveying the firearm for repair or identifying
the firearm. The conveyance may also be accomplished by submission
of a letter from the registrant to the qualified FFL advising the
FFL that the registrant is shipping or delivering the firearm for
repair/identification and describing the repair or identification.
Return of the registered silencer to the registrant may likewise be
accomplished by submission of an ATF Form 5 or by a letter from the
FFL to the registrant that accompanies the silencer.
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10. Voluntary Classification of Firearms and Armor Piercing Ammunition
As described in the NPRM, for many years, ATF has acted on
voluntary requests from persons, particularly manufacturers who are
developing new products, by issuing determinations or
``classifications'' on whether an item is a ``firearm'' or ``armor
piercing ammunition'' as defined in the GCA or NFA. The Department
proposed to clarify the existing process by which persons may
voluntarily submit such requests to ATF. The NPRM proposed that
requests be submitted in writing, or on an ATF form, executed under the
penalties of perjury with a complete and accurate description of the
item, the name and address of the manufacturer or importer thereof, and
a sample of such item for examination along with any instructions,
guides, templates, jigs, equipment, tools, or marketing materials that
are made available to the purchaser or recipient of the item. Upon
completion of the examination, ATF would return the sample to the
person who made the request unless a determination was made that return
of the sample would be, or place the person, in violation of law. The
NPRM also proposed to codify ATF's policy of not evaluating a firearm
accessory or attachment ``unless it is installed on the firearm(s) in
the configuration for which it is designed and intended to be used,''
and further explained that the Director's determination would not be
applicable to or authoritative with respect to any other sample,
design, model, or configuration. 86 FR at 27734.
I. Recordkeeping
1. Acquisition and Disposition Records
The Department proposed minor amendments to 27 CFR 478.122,
478.123, 478.125, and 478.125a, pertaining to the acquisition and
disposition records maintained by importers, manufacturers, and
dealers. Due to the possibility that a firearm may have more than one
frame or receiver as defined in the proposed rule, and the changes to
marking regulations, the rule proposed to make certain words plural,
(e.g., manufacturer(s), importer(s), and serial number(s)) in the
recordkeeping regulations for the formatting of FFL records, as
applicable. These proposed changes were considered necessary to ensure
that FFLs record more than one manufacturer, importer, or serial
number, if applicable, when acquiring or disposing of firearms with
multiple components marked as the frame or receiver, or firearms that
have been remanufactured or reimported by another licensee. This is
consistent with prior ATF guidance to the firearms industry.\59\
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\59\ See FFL Newsletter, May 2012, at 5 (``If a firearm is
marked with two manufacturer's names, or multiple manufacturer and
importer names, FFLs should record each manufacturers' and
importers' [sic] name in the A&D record.'').
---------------------------------------------------------------------------
The rule also proposed to amend 27 CFR 478.122 and 478.123 to
require licensed importers and manufacturers to consolidate their
records of importation, manufacture, or other acquisition, and their
sale or other disposition in a format containing the applicable columns
specified in a table under the regulation. These changes were proposed
to supersede ATF Rulings 2011-1 and 2016-3.
The NPRM proposed to make minor clarifying changes to the format of
the column titles required on the A&D Record in Sec. 478.125(e). The
proposed change was to make clear that both the name and license number
(not the address) of a licensee from whom firearms are received and to
whom they are disposed are recorded properly in the A&D Record.
The rule also proposed minor changes to Sec. 478.125(f) to make
clear that in the event the licensee records a duplicate entry with the
same firearm and acquisition information, whether to close out an old
record book or for any other reason, the licensee must record a
reference to the date and location of the subsequent entry (e.g., date
of new entry, book name/number, page number, and line number) to
document the disposition. The NPRM explained the proposed change is
needed to ensure that acquisition records are closed out when firearms
are no longer in inventory \60\ and would resolve problems that ATF has
encountered during the inspection process and FFLs
[[Page 24667]]
have encountered when responding to trace requests.
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\60\ This is consistent with prior ATF guidance to the firearms
industry. See FFL Newsletter, Sept. 2011, at 5.
---------------------------------------------------------------------------
2. Firearms Transaction Records
Some technical amendments were proposed at 27 CFR 478.124
pertaining to information recorded on the Form 4473. Like changes to
the recordkeeping regulations, the rule proposed to make certain words
plural on the Form 4473 to ensure that FFLs would record more than one
manufacturer, importer, and serial number, if applicable. The NPRM also
proposed to remove from paragraph (f) a phrase that indicates than an
FFL must fill out the firearm description information only after
filling out the information about the transferee. The proposed deletion
would clarify ATF Procedure 2020-1, which sets forth an alternative
method of complying with section 478.124(f) for non-over-the-counter
firearm transactions, and reflect the current process for completing
the Form 4473.
3. Recordkeeping for ``Privately Made Firearms''
The Department proposed changes to the regulations regarding
recordkeeping by licensees to account for any voluntary receipts or
other acquisitions (including from a personal collection) of PMFs, and
corresponding dispositions (including to a personal collection). If a
PMF were received or otherwise acquired by a licensee or disposed of,
or imported, the proposed rule required the abbreviation ``PMF'' to be
recorded as the manufacturer in the appropriate column, as well as the
PMF serial number beginning with the abbreviated FFL number in the
serial number column. The rule proposed requiring licensees to first
record the PMF as an acquisition in the licensee's A&D records upon
receipt from the private owner (whether or not the licensee kept the
PMF overnight). Once marked, the licensee would update the acquisition
entry with the identifying information and record its return as a
disposition to the private owner.
4. NFA Forms Update
The Department proposed minor technical amendments to 27 CFR
479.62, 479.84, 479.88, 479.90, and 479.141, pertaining to the
Application to Make, NFA Form 1 (``Form 1''), the Application to
Transfer, NFA Form 4 (``Form 4''), Tax Exempt Transfers--SOTs, NFA Form
3 (``Form 3''), Tax Exempt Transfers--Governmental Entities, NFA Form 5
(``Form 5''), and the Stolen or Lost Firearms Report, Form 3310.11
(``Form 3310.11''), respectively. The technical amendments were
proposed to make certain words on the forms plural (i.e.,
manufacturer(s), importer(s), serial number(s)).
5. Importation Forms Update
The Department proposed minor technical amendments to 27 CFR
447.42, 447.45, 478.112, 478.113, 478.114, and 479.112, pertaining to
the importation of firearms. Like the other recordkeeping changes,
these technical amendments were proposed to ensure that more than one
name, manufacturer, country, importer, or serial number, if applicable,
would be recorded when completing importation forms.
J. Record Retention
Given advancements in electronic scanning and storage technology,
ATF's acceptance of electronic recordkeeping, the reduced costs of
storing firearm transaction records, the increased durability and
longevity of firearms, and the public safety benefits of ensuring that
records of active licensees are available for tracing purposes, the
Department proposed to amend 27 CFR 478.129 to require FFLs to retain
all records until business or licensed activity is discontinued, either
on paper or in an electronic format approved by the Director,\61\ at
the business or collection premises readily accessible for inspection.
Also, a proposed amendment to 27 CFR 478.50(a) would allow all FFLs,
including manufacturers and importers, to store paper records and forms
older than 20 years at a separate warehouse, which would be considered
part of the business premises for this purpose and subject to
inspection. These amendments would reverse a 1985 rulemaking allowing
non-manufacturer/importer FFLs to destroy their records after 20
years.\62\
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\61\ ATF previously approved electronic storage of certain
records under the conditions set forth in ATF Rulings 2016-1
(Requirements to Keep Firearms Records Electronically) and 2016-2
(Electronic ATF Form 4473).
\62\ See Retention of Firearms Transaction Records, 50 FR 26702
(June 28, 1985).
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IV. Analysis of Comments and Department Responses for the Proposed Rule
In response to the NPRM, ATF received 290,031 comments. Submissions
came from individuals, including foreign nationals, lawyers, government
officials, and various interest groups. Of the comments reviewed, there
were nearly 114,400 comments that expressed support for the proposed
rule. Of these, over 68,000 were submitted by individuals as form
letters, i.e., identical text that is often supplied by organizations
or found online and recommended to be submitted to the agency as a
comment. There were nearly 170,550 comments opposed to the rule, of
which over 88,000 comments were submitted as form letters. For over
1,500 comments, the commenters' positions could not be determined. The
commenters' grounds for support and opposition, along with specific
concerns and suggestions, are discussed below.
A. Issues Raised in Support of the Rule
Thousands of commenters broadly expressed support for the NPRM.
Over 3,000 comments simply expressed support, stating ``stop ghost
guns,'' but numerous other comments focused on the need to regulate
``ghost guns'' and were supportive of the proposed change to treat
items like weapon parts kits the same as other firearms because the
commenters believed such treatment is necessary for public safety.
These commenters pointed to the rise and proliferation of ``do-it-
yourself'' (``DIY'') firearms used in crimes and argued that it is easy
for extremists, violent criminals, and traffickers, among others, to
skirt the law and obtain untraceable guns without undergoing a
background check. They stated that the rule was necessary to combat the
emerging threat that ``ghost guns'' pose to public safety.
As discussed below, numerous other commenters ranging from
lawmakers to prosecutors to religious, medical, and social policy-
oriented organizations all raised various points as to why they were
supportive of the Department's proposed amendments to ATF regulations.
Some commenters in support of the rule also provided suggestions on
where they believed the regulatory text could be enhanced or further
clarified.
1. Changes are Consistent With Law
Comments Received
Commenters in support remarked that the proposed definitions are
justified given the ease with which prohibited persons can
intentionally circumvent Federal regulations to acquire unfinished
frames or receivers that can be easily converted to functional firearms
without a background check. Commenters agreed that ATF's proposed
definitions are consistent with Congress's intent to regulate the core
component of the firearm and that the plain meaning of ``firearm'' in
the GCA includes any kits or nearly complete frames or receivers that
can be readily converted into a firearm. One commenter noted the case
United States v. Drasen, 845 F.2d 731, 736-37 (7th Cir. 1988), where
the Seventh Circuit rejected the argument that a collection
[[Page 24668]]
of rifle parts cannot be a ``weapon.'' Other commenters agreed that
ATF's proposed rule would be a functional definition that preserves
existing designs while defining the frame or receiver to include those
with split or multi-piece frame or receiver configurations, and allows
for flexibility over time to account for new technologies. They stated
that this flexible approach, including manufacturers' ability to submit
a firearm to ATF and receive a classification on which component
constitutes the receiver, would preserve the existing designations that
ATF has made and minimize the burden on the gun industry.
Similarly, others agreed that the definition and factors set forth
for the term ``readily'' are consistent with case law interpreting the
term, and that the proposed definition and such case law provides
manufacturers with fair warning on how the factors will be considered.
Further, some commenters indicated that the proposed ``readily'' test
is consistent with ATF's past approach to reviewing unfinished
receivers. Some commenters, such as the Brady Group, the District
Attorney and County Counsel for the County of Santa Clara, and the
Attorney General for the State of California stated that for a few
decades, ATF had issued classification letters taking the position that
some unfinished receivers, which are identical to the so-called ``80%
receivers'' on the market today, were ``firearms'' under the GCA. They
stated that, in that time period, ATF's analysis was based on an
approach that examined how quickly and easily an unfinished receiver or
frame could be turned into a fully functional firearm--that is, whether
it could ``readily be converted'' to function as the firearm it was
specifically designed to be. The same commenters then asserted that,
from around 2006 to the present, ATF changed its analysis and began to
look at which machining operations still needed to be performed to
determine whether a partially completed receiver or frame is a
``firearm'' under the GCA. Commenters believed that ATF's change in
interpretation led to an increase in the number of PMFs that have
proliferated and that are being recovered in crime scenes.
Department Response
The Department acknowledges the commenters' support for the
proposed rule. The definitions in the proposed rule are consistent with
the plain meaning of the term ``firearm'' in the GCA as it includes
frames or receivers of weapons that are designed to or may readily be
converted to fire, not merely of weapons that are in a functional state
that will expel a projectile. The Department agrees with commenters
that any new definitions must be general enough to account for changes
in technology and terminology while preserving ATF's past
classifications to minimize the impact on the firearms industry. The
Department further agrees that the proposed definition of the term
``readily'' is consistent with case law that provides manufacturers
with fair warning on how the factors in that definition are evaluated.
The Department also agrees that ATF took the position in past
classification letters that some unfinished receivers were firearms
because of the ease with which they can be made functional. However,
ATF disagrees with commenters who stated that ATF changed its position
from 2006 to the present concerning partially complete frames or
receivers when it determined that specific machining operations had to
be performed with respect to certain partially complete frames or
receivers. Rather than a new or different test, how quickly and easily
an item could be made functional is largely determined by which
machining operations still needed to be performed. ATF has maintained
and continues to maintain that a partially complete frame or receiver
alone is not a frame or receiver if it still requires performance of
certain machining operations (e.g., milling out the fire control cavity
of an AR-15 billet or blank, or indexing for that operation) because it
may not readily be completed to house or hold the applicable fire
control components. When a frame or receiver billet or blank is indexed
or ``dimpled,'' it indicates the location for drilling or milling the
holes or cavities necessary to install the fire control components
necessary to initiate, complete, or continue the firing cycle.
However, this rule recognizes that the aggregation of a template or
jig with a partially complete frame or receiver can serve the same
purpose as indexing, making an item that is clearly identifiable as a
partially complete frame or receiver into a functional one efficiently,
quickly, and easily (i.e., ``readily''). Prior to this rule, ATF did
not examine templates, jigs, or other items and materials in
determining whether partially complete frames or receivers were
``firearms'' under the GCA. For this reason, ATF issued some
classifications concluding that certain partially complete frames or
receivers were not ``frames or receivers'' as defined in this rule.
Thus, any classification requests for partially complete, disassembled,
or nonfunctional items or parts kits that were previously submitted to
ATF, particularly those submitted without their associated templates,
jigs, molds, instructions, equipment, or marketing materials as
required by this rule, must be re-evaluated consistent with this rule
to determine whether they would now be classified as ``firearms,''
``frames,'' or ``receivers.''
2. Enhances Public Safety
Comments Received
Commenters supporting the proposed rule argued that the proposed
rule is needed to make communities safer because under-regulation has
made the rise of so-called ghost guns the fastest-growing public safety
threat in the country. Some commenters emphasized that women who are
victims of domestic abuse are severely affected by the rapid
proliferation of unserialized firearms that can be easily acquired
without a background check by convicted domestic violence offenders or
those subject to a domestic violence restraining order. Healthcare and
physicians' organizations, which have called gun violence a public
health epidemic, urged issuance of the proposed rule as a necessary
step to reduce or prevent firearm-related injuries and death.
Various commenters, including Members of Congress, State lawmakers,
and State and local prosecutors noted the uptick in the involvement of
``ghost guns'' in crimes and provided numbers demonstrating the rise of
unserialized firearms recovered or used in crimes in their
jurisdictions. For example, a comment from several State Attorneys
General asserted that the Philadelphia Police Department recovered 287
unserialized guns in the first half of 2021, whereas in 2019, the
Philadelphia police recovered just 95 unserialized guns, and that
unserialized guns represented 2.23 percent of all guns recovered after
gun crimes. Similarly, a comment from the Gun Violence Task Force of
the New York County Lawyers Association asserted that in 2020, law
enforcement in New York recovered 220 ``ghost guns'' compared to 72 in
2019, and 38 in 2018. They stated that this represented a 479 percent
increase over a three-year period. One group asserted that law
enforcement officers across the country are increasingly identifying
trafficking rings that mass produce and sell untraceable firearms.
These commenters stated that it is important to take proactive steps
now, given that technology continues to rapidly evolve and makes it
likely that these weapons will become easier and cheaper to
[[Page 24669]]
manufacture privately, especially for criminals intending to skirt the
law.
Department Response
The Department acknowledges that the rule will enhance public
safety by helping to ensure that more firearms may be traced by law
enforcement to solve crime and arrest the perpetrators. As discussed in
Section II.B of this preamble, ATF has also seen an exponential
increase in the number of suspected PMFs recovered and reported for
tracing. At the same time, by requiring sellers to have licenses and
conduct background checks when firearm parts kits are manufactured and
sold, the rule will help prevent potentially dangerous persons from
acquiring those kits and easily making functional weapons.
3. Prevents Companies From Exploiting Loopholes
Comments Received
Many commenters in support of the proposed rule argued that it was
necessary to regulate so-called ghost guns because they believe that
the primary reason people acquire them is for illicit purposes and that
companies are exploiting existing loopholes in Federal regulations.
Other commenters indicated that companies making and advertising DIY
kits intentionally target prohibited purchasers or other dangerous
parties by emphasizing the untraceable nature of their products. These
companies, the commenters pointed out, frequently use the absence of a
serial number and the ability to purchase the gun without a background
check as selling points. Accordingly, these commenters argued it is
evident that PMFs are not being used purely by hobbyists but are
instead being made and sold for use on the street by violent criminals
and gun traffickers precisely because their acquisition falls outside
the scope of existing Federal regulations.
Some commenters made reference to ATF's Ruling 2015-1 that
addressed inquiries from the public asking whether FFLs, or unlicensed
machine shops, may engage in the business of completing, or assisting
in the completion of, the manufacture of ``firearm frames or
receivers'' (specifically from castings or blanks) for unlicensed
individuals without becoming licensed as a manufacturer. These
commenters asserted that the ``ghost gun industry'' ensures that its
handgun frames and semiautomatic receivers do not meet ATF's 2015
interpretation of ``frame or receiver'' simply by not drilling into the
frame or receiver, shipping the mostly finished item to the purchaser,
and providing detailed instructions on how to complete the firearm
privately, often within minutes. This allows the industry to sell
thousands of weapons with no serial numbers or background checks. One
commenter emphasized the proposed multi-factor analysis for ``readily''
provides ATF with the necessary flexibility to adapt to innovations in
firearms technology and likely prevents these parts kits manufacturers
from developing products aimed at complying with a narrow construction
of ATF regulations while skirting the spirit and intent of the GCA.
Department Response
The Department acknowledges the commenters' support for the
proposed rule. This rule interprets the plain language of the GCA to
update its regulations and clarify when a license is required, which
part of a firearm must be marked, and what records must be maintained
by licensees. The rule clarifies that the regulatory definitions of
``firearm'' and ``frame or receiver'' include weapon and frame or
receiver kits with partially complete frames or receivers, which are
therefore subject to regulatory controls under the GCA or NFA. Sellers
of such parts kits are required to be licensed, and the frames or
receivers of those firearms must be marked with a serial number and
other identifying information. ATF anticipates that, as technology
develops, this rule will help to ensure that persons who commercially
produce partially complete frames or receivers that can efficiently,
quickly, and easily be completed are licensed and conduct background
checks when sold to unlicensed individuals. This will help prevent
prohibited persons from acquiring such frames and receivers.
4. Regulates ``Privately Made Firearms'' Like Other Firearms
Comments Received
Numerous commenters stated that PMFs should be regulated the same
as any other firearm to ensure that manufacturers of weapon parts kits
are licensed, adhere to recordkeeping requirements, and perform
background checks on the purchasers of their products. Many commenters,
including lawmakers from States such as Maryland, Massachusetts, and
New York, stated that although some States that have enacted, or are
working to pass, legislation regulating the possession or making of
unserialized firearms, these laws cannot work in a vacuum and that
there are limits to what any one State can do. Less restrictive gun
laws in neighboring States, they argued, undermine States with tighter
restrictions. Unserialized firearms and unfinished frames and receivers
will continue to flow into their communities. Federal regulation, they
argued, is therefore needed to close the loophole; otherwise, law
enforcement and State efforts to prevent gun violence and enforce their
own laws will be severely undermined. For example, the County of Santa
Clara District Attorney wrote that the lack of adequate serialization
and recordkeeping of PMFs has made it difficult for law enforcement to
apprehend individuals involved in ongoing criminal activity or firearms
traffickers who supply criminals with weapons. Similarly, another
prosecutors' organization stated that prosecutors rely on gun markings
to generate leads and identify patterns, and the lack of serial numbers
on PMFs undermines prosecutors' ability to effectively investigate and
prosecute gun crime.
Lastly, some commenters stated that ATF should reject the
inaccurate claims that the NPRM would make criminals out of law-abiding
gun owners, stating that the rule would not reach or restrict private
individuals legally allowed to possess a firearm who previously
purchased nearly complete frames or receivers or ghost gun kits. These
individuals, they argued, will be no more exposed to criminal liability
than they are currently. They concluded that the NPRM will cut off the
supply of ghost guns to traffickers and prohibited persons at its
source and not burden law-abiding, good faith actors.
Department Response
The Department acknowledges commenters' support for the proposed
rule, and notes that one of the primary purposes of the GCA is to
assist State and local jurisdictions to control the traffic of firearms
within their own borders through the exercise of their police
power.\63\ Under the rule as proposed and finalized, when licensees
receive privately made or DIY firearms in the course of their licensed
business or activity, they will need to mark or cause those firearms to
be marked. This allows PMFs to be traceable by State and local law
enforcement whenever they, like commercially produced firearms, are
introduced into the regulated marketplace. At the same time, neither
the GCA nor the proposed or final rule prohibits unlicensed
[[Page 24670]]
individuals from marking (non-NFA) firearms they make for their
personal use, or when they occasionally acquire them for a personal
collection, or sell or transfer them from a personal collection to
unlicensed in-State residents consistent with Federal, State, and local
law. There are also no recordkeeping requirements imposed by the GCA or
the proposed or final rule upon unlicensed persons who make their own
firearms, but only upon licensees who choose to take PMFs into
inventory. In sum, this rule does not impose any new requirements on
law-abiding gun owners.
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\63\ See Public Law 90-351, sec. 901(a)(1), 82 Stat. 225.
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5. Suggested Changes to the Text
Some commenters in support of the rule offered several suggestions
on the text of the final rule while others asked that ATF take certain
information into consideration. Notably, the combined comment submitted
by 22 State Attorneys General in support of the proposed definitions
offered seven suggestions for the final rule. The commenters'
suggestions are addressed in the following paragraphs.
a. Definition of ``Firearm'' and Weapon Parts Kits
Comments Received
Some commenters urged ATF to clarify the relationship between a
weapon parts kit and a partially complete frame or receiver. Although
the proposed rule includes a ``weapon parts kit'' within the definition
of ``firearm'' and separately defines a ``partially complete,
disassembled, or inoperable frame or receiver,'' the commenters stated
that a partially complete frame is often sold as part of a weapon parts
kit. Therefore, the commenters suggested that ATF clarify whether a
parts kit must include a partially complete frame or receiver in order
to satisfy the definition of ``firearm.''
Other commenters asked ATF to consider how to effectively regulate
the domestic distribution of Computer Aided Manufacturing (``CAM'') and
Computer Aided Design (``CAD'') files and other software and technology
used to produce firearms. They explained that these types of files are
just like weapon parts kits and can be used to ``readily'' assemble a
working firearm. The commenters stated that the Department of Commerce
currently regulates only the international distribution and export of
CAM or CAD files for the production of firearms where such files are
``ready for insertion into a computer numerically controlled machine
tool, additive manufacturing equipment, or any other equipment that
makes use of'' the files ``to produce the firearm frame or receiver or
complete firearm.'' 15 CFR 734.7(c). They suggested that there are
opportunities for ATF to work alone or with other Departments, such as
Commerce, to address the lack of regulation of the domestic
distribution of CAM and CAD files and other software and technology
used to produce firearms.
Department Response
The Department agrees with commenters that the NPRM supplement
entitled ``Partially Complete, Disassembled, or Inoperable Frame or
Receiver'' should make clear that it includes a ``frame or receiver
parts kit'' with a partially complete, disassembled, or nonfunctional
(replacing ``inoperable'' in the final rule to describe the item more
accurately) \64\ frame or receiver. The final rule incorporates that
addition. However, a weapon parts kit need not have a partially
complete frame or receiver, as defined in this rule, to satisfy the
definition of ``firearm'' under section 921(a)(3)(A).\65\ For example,
a weapon parts kit that contains pieces of a multi-piece frame or
receiver, as defined in this rule, may still meet the definition of
``firearm'' under section 921(a)(3)(A) if the kit ``is designed to or
may readily be completed, assembled, restored, or otherwise converted
to expel a projectile by the action of an explosive.''
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\64\ See footnote 122, infra.
\65\ The existence of a frame or receiver is not a precondition
to classifying a weapon as a firearm under section 921(a)(3)(A), as
section 921(a)(3) defines a ``firearm'' in the disjunctive with each
subpart separated by the disjunctive participle ``or.'' See Black's
Law Dictionary 1095 (6th ed.1990) (defining the term ``or'' to mean
``[a] disjunctive participle used to express an alternative or to
give a choice of one among two or more things''); Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts sec.
12, at 116 (2012) (``Under the conjunctive/disjunctive canon, and
combines items while or creates alternatives . . . . With a
conjunctive list, all . . . things are required--while with the
disjunctive list, at least one of the [things] is required, but any
one . . . satisfies the requirement.''). Thus, while the term
``firearm'' in section 921(a)(3)(B) includes the frame or receiver
of a weapon described in section 921(a)(3)(A), section 921(a)(3)(A)
does not require a weapon to have a ``frame or receiver,'' as each
subpart qualifies, on its own, as a ``firearm'' for purposes of the
GCA. Otherwise, section 921(a)(3)(A) would be superfluous.
---------------------------------------------------------------------------
Regarding computer files, this rule as proposed and finalized does
not regulate the domestic distribution of CAM or CAD computer files.
This rule implements the GCA, which does not regulate the information
used to manufacture firearms. However, it would violate federal law to
aid and abet (18 U.S.C. 2) or conspire (18 U.S.C. 371) with others to
manufacture firearms without a license (18 U.S.C. 922(a)(1)), which
could include someone providing specially designed computer
instructions for machines, such as Computer Numeric Control (CNC)
machines or 3D printers, knowing that the purchaser is engaged in the
business of producing firearms for sale or distribution without a
license.
b. General Definition of ``Frame or Receiver''
Comments Received
Some commenters in support of the proposed rule were concerned with
the language ``when the complete weapon is assembled'' in the general
definition of ``frame or receiver,'' which was proposed to be defined,
in part, as a ``part of a firearm that, when the complete weapon is
assembled, is visible from the exterior and provides housing or a
structure designed to hold one or more fire control components''
(emphasis added). The commenters stated that the italicized language
makes the definition susceptible to being read to say that the part of
a weapon that is the ``frame or receiver'' only becomes so when the
complete weapon is assembled. To avoid that possible misreading, the
commenters suggested the sentence should indicate it is a part of a
complete weapon that is visible from the exterior when the complete
weapon is assembled and provides housing designed to hold or integrate
one or more fire control components.
Additionally, commenters also suggested the proposed definition of
``frame or receiver,'' which refers to ``[a] part of a firearm,'' be
changed to ``[a] part of a complete weapon,'' given that under both the
GCA and regulatory definition, a ``firearm'' could mean just the
``frame or receiver'' of a weapon. Similarly, commenters suggested that
``complete weapon'' also be used instead of ``firearm'' where ATF
proposes to define ``fire control component'' as ``a component
necessary for the firearm to initiate, complete, or continue the firing
sequence.'' They suggested using ``complete weapon'' in other instances
where the supplemental definition, like split or modular frame or
receiver, uses the term ``firearm'' in the definition.
Department Response
The Department agrees that the phrase ``when the complete weapon is
assembled, is visible'' in the proposed definition of ``frame or
receiver'' could be misinterpreted to mean that the weapon or device
must be assembled for a part to be defined as a frame or receiver. For
this reason, and because
[[Page 24671]]
the definition of ``conspicuous'' in the marking requirements makes
clear that markings must be capable of being easily seen with the naked
eye during normal handling of the firearm and unobstructed by other
markings when the complete weapon or complete muffler or silencer
device is assembled (i.e., visible),\66\ the phrase ``when the complete
weapon is assembled, is visible'' has been removed from the definition
of ``frame or receiver'' in the final rule because it is unnecessary.
Regarding the suggestion to substitute ``complete weapon'' for
``firearm,'' the Department does not believe that change is necessary
because the final rule now makes clear the terms under ``frame or
receiver'' will be defined in relation to the type of weapon, not to
``firearms'' generally.
---------------------------------------------------------------------------
\66\ Markings must also be clearly visible from the exterior
because they may be needed to prove that a criminal defendant had
knowledge that the serial number was obliterated or altered. See,
e.g., Lewis v. United States, No. 3:12-0522, 2012 WL 5198090, at *4
(M.D. Tenn. Oct. 19, 2012) (serial number obliterated on the
``visible exterior'' of a revolver); State v. Shirley, No. 107449,
2019 WL 2156402, at *2 (Ct. App. Ohio May 16, 2019) (same); cf.
United States v. Sands, 948 F.3d 709, 719 (6th Cir. 2020) (serial
number is not altered or obliterated so long as it is ``visible to
the naked eye''); United States v. St. Hilaire, 960 F.3d 61, 66 (2d
Cir. 2020) (``This `naked eye test' best comports with the ordinary
meaning of `altered'; it is readily applied in the field and in the
courtroom; it facilitates identification of a particular weapon; it
makes more efficient the larger project of removing stolen guns from
circulation; it operates against mutilation that impedes
identification as well as mutilation that frustrates it; and it
discourages the use of untraceable weapons without penalizing
accidental damage or half-hearted efforts.'').
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c. Supplement ``Split or Modular Frame or Receiver''
Comments Received
Some commenters indicated that it appears an item may qualify under
the supplement entitled ``split or modular frame or receiver'' only if
the Director makes that determination based on certain factors. The
commenters suggested that the definition would be enhanced if it also
provided a standard that may be generally used to determine whether
something is a ``split or modular frame or receiver,'' as well as
additional factors that may inform how that standard is applied. In
this way, the regulations would define ``a split or modular frame or
receiver'' much as the proposed rule suggests defining ``readily.'' The
commenters recommended inserting ``each of those parts shall be a frame
or receiver unless'' before ``the Director may determine'' and then
changing ``may determine'' to ``determines.'' Commenters also suggested
making clear that the courts and the public, in addition to the
Director, may rely on the identified factors to determine whether
something is a ``partially complete, disassembled, or inoperable frame
or receiver'' for that definition.
Department Response
With respect to the definitional supplement ``split or modular
frame or receiver,'' the Department disagrees that this provision as
proposed was meant to be read as providing that a part may only qualify
as a ``split or modular frame or receiver'' if the Director makes that
determination based on the enumerated factors. This supplement was
intended to inform the licensed industry and the public that if there
is more than one part of a firearm falling within the proposed
definition of ``frame or receiver'' (i.e., more than one housing or
structure for a fire control component), then ATF would use those
factors when determining which specific part(s) of a split or modular
weapon or device was the frame or receiver of that weapon or device. As
with past ATF classifications, there would likely be only one such
component specified in future designs.
In light of these and numerous other comments seeking more clarity
as to how the definition of ``frame or receiver'' applies with respect
to split and modular firearms, the Department is adopting three subsets
of the proposed definition of ``frame or receiver''--one that applies
to handguns; one for rifles, shotguns, and projectile weapons other
than handguns; and one for firearm mufflers and silencers. The
Department agrees with numerous commenters that the proposed supplement
to the definition entitled ``split or modular frame or receiver'' is
difficult for persons to apply when the term ``frame or receiver'' was
defined to include more than any housing for any fire control
component. Because the final rule focuses on only a single component of
a firearm based on the recommendations of commenters, there is no
longer a need for a separate supplement entitled ``split or modular
frame or receiver'' and it has not been adopted in the final rule.
However, while defining the term ``frame or receiver'' to focus on
a single component and removing the supplement entitled ``split or
modular frame or receiver'' provides clarity as to which part of a
``split'' frame or receiver (i.e., with upper and lower housings for
the bolt, breechblock, and trigger mechanism) is regulated, it does not
provide clarity with respect to multi-piece frames or receivers that
are designed to be disassembled into multiple modular subparts, more
than one of which may house or provide a structure for the applicable
fire control component specified in this rule (e.g., left and right
halves of a frame or receiver). While these types of frames or
receivers are relatively uncommon, ATF has seen an increase in multi-
piece designs of frames or receivers. To address these new designs, the
term ``multi-piece frame or receiver'' has been added to the final rule
to mean a frame or receiver that may be disassembled into multiple
modular subparts. To avoid confusion between multi-piece receivers that
may be disassembled into modular subparts, and modular handguns with an
internal removable chassis like the Sig P250/320 and Beretta APX
Striker,\67\ the definition expressly excludes the internal frame of a
pistol that is a complete removable chassis that provides housing for
the energized component, unless the chassis itself may be disassembled.
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\67\ An internal removable chassis system (as found in the Sig
P250/320 and Beretta APX Striker) that houses all components of a
traditional pistol frame, to include incorporating the slide rails
and housing for both the trigger and sear/hammer, is a complete
pistol frame without the polymer grip.
---------------------------------------------------------------------------
This rule clarifies for licensees which portion of a modular multi-
piece frame or receiver they will need to identify with a serial number
and additional identifying information. Pursuant to its authority under
18 U.S.C. 923(i) and 26 U.S.C. 5842(a), ATF is prescribing in this rule
the manner in which licensed manufacturers and importers (and makers of
NFA firearms) must identify multi-piece frames or receivers, as
follows: (1) The outermost housing or structure designed to house,
hold, or contain either the primary energized component of a handgun,
the breech blocking or sealing component of a projectile weapon other
than a handgun, or the internal sound reduction component of a firearm
muffler or firearm silencer, as the case may be, is the subpart of a
multi-piece frame or receiver that must be marked with the identifying
information; (2) if more than one modular subpart is similarly designed
to house, hold, or contain such a primary component (e.g., left and
right halves), each of those subparts must be identified with the same
serial number and associated licensee information not duplicated on any
other frame or receiver; and (3) the marked subpart(s) of a multi-piece
frame or receiver must be presumed, absent an official determination by
the Director or other reliable evidence to the contrary, to be part of
the frame or receiver of a weapon.
The final rule provides that, once a modular subpart of a multi-
piece frame
[[Page 24672]]
or receiver has been marked and then aggregated (assembled or
unassembled) with the other frame or receiver subparts, the marked part
cannot be removed and replaced unless: (1) The subpart replacement is
not a firearm under 26 U.S.C. 5845; (2) the subpart replacement is
identified by the licensed manufacturer of the original subpart with
the same serial number and associated licensee information in the
manner prescribed by the rule; and (3) the original subpart is
destroyed under the firearm licensee's control or direct supervision
prior to such placement. These conditions are necessary because
removing and replacing the identified component of a multi-piece frame
or receiver would place the possessor in violation of 18 U.S.C. 922(k)
(and, if an NFA firearm, 26 U.S.C. 5861(g) and (h)), which prohibits
the possession of any firearm with the manufacturer's or importer's
serial number removed. If a modular subpart of a multi-piece frame or
receiver is sold separately, the rule requires that it be identified
with an individual serial number. This is to ensure that the frame or
receiver of the resulting weapon has traceable marks of identification.
These clarifications with respect to the markings of a multi-piece
frame or receiver are necessary for the final rule; otherwise, multi-
piece frames or receivers could be sold or distributed piecemeal in
individual subparts and replaced by the end user without any traceable
marks of identification.
Finally, to ensure that industry members and others can rely on
ATF's prior classifications, most prior ATF classifications and
variants thereof, including those for externally powered weapons, have
been grandfathered into the definition of ``frame or receiver'' along
with examples and diagrams of those weapons, such as AR-15/M-16 variant
firearms. The only exception is for classifications that a partially
complete, disassembled, or nonfunctional frame or receiver, including a
parts kit, was not, or did not include, a firearm ``frame or receiver''
as defined prior to this rule. Any such classifications, to include
weapon or frame or receiver parts kits, would need to be resubmitted
for evaluation. Further, if persons remain unclear as to which specific
portion of a weapon or device falls within the definition of ``frame or
receiver,'' then they may still voluntarily submit a request to ATF as
otherwise provided in this rule.
d. Definition of ``Privately Made Firearm''
Comments Received
Some commenters suggested that ATF should explain that ``made,'' as
used in the definition of ``privately made firearm,'' does not imply
that firearms cannot be ``manufactured'' by private parties for
purposes of other firearms laws. They stated that the proposed rule
opted for ``privately made firearm'' instead of ``privately
manufactured firearms'' to distinguish between what an FFL does
(manufacture) and what a nonlicensee does (make). These commenters
asserted that the NFA's definition of ``make'' demonstrates that the
distinction between ``make'' and ``manufacture'' is not consistent
throughout Federal law. Therefore, the commenters requested that ATF
should clarify that its use of ``made'' in this regulation does not
limit the meaning of either ``made'' or ``manufacture'' as used in this
and other Federal laws and regulations.
Department Response
The Department agrees that the term ``made'' in the definition of
``privately made firearm'' was not meant to restrict the use of the
terms ``made'' or ``manufacture'' with respect to the GCA or other
firearms laws. As the preamble in the NPRM explained, the term ``made''
was incorporated into that definition merely to distinguish those
firearms that were manufactured by licensees from those manufactured by
unlicensed persons. See 26 U.S.C. 5845(i) (``The term `make', and the
various derivatives of such word, shall include manufacturing (other
than by one qualified to engage in such business under this chapter),
putting together, altering, any combination of these, or otherwise
producing a firearm.''). This rule is not intended to limit the meaning
of ``made'' or ``manufacture'' in the GCA or any other Federal law, or
with respect to State or local firearms laws.\68\
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\68\ See 18 U.S.C. 927 (GCA does not preempt State or local law
unless there is a direct and positive conflict with Federal law such
that they cannot be reconciled or consistently stand together).
---------------------------------------------------------------------------
e. Marking of ``Privately Made Firearms''
Comments Received
Some supportive commenters suggested that the final rule should
clarify that any identifying marks must be placed on the metal insert
of an otherwise undetectable PMF, not on any polymer or other nonmetal
part or component, to ensure the marks are not worn away during normal
use. The commenters believed this is what the preamble suggested,
although the text of the proposed regulations did not do so explicitly.
The California Department of Justice stated that ATF should
consider extending the PMF serialization requirement to owners as well
as firearms licensees so as to foreclose the possibility that any PMFs
will remain untraceable. This commenter stated that ATF could require
owners of PMFs to register those weapons after a reasonable time frame,
such as 60 days after the effective date of the regulation, which would
ensure all PMFs are safely tracked by law enforcement.
Department Response
The Department agrees that the final rule should make clear that
one of the acceptable methods of marking a PMF, or a commercially
produced firearm, is to permanently embed a serialized metal plate into
polymer or other nonmetal material. The final rule adds this as an
acceptable example in addition to recognizing any other method approved
by the Director. This can be accomplished by casting, molding, or
another manufacturing method, such as 3D overprinting.\69\
---------------------------------------------------------------------------
\69\ See generally Hayley Everett, Lehvoss Group Leads Innovate
UK Project for Overprinting High-Performance
Polymers,<a href="http://3DPrintingIndustry.com">3DPrintingIndustry.com</a> (Aug. 25, 2021), available at
<a href="https://3dprintingindustry.com/news/lehvoss-group-leads-innovate-uk-project-for-overprinting-high-performance-polymers-195071/">https://3dprintingindustry.com/news/lehvoss-group-leads-innovate-uk-project-for-overprinting-high-performance-polymers-195071/</a> (last
visited Mar. 23, 2022) (``Overprinting is a technique for designing
multi-material parts when different materials are needed in various
components of a part. Typically, a print is started and then paused
midway whereby components can be embedded into the 3D print job.
Then, the print process is resumed and allowed to 3D print over the
components that have been embedded.''); MMF #5: A Guide to Embedding
Components in 3D Printed Parts, <a href="http://Markforged.com">Markforged.com</a>, available at <a href="https://markforged.com/resources/blog/embedding-components-in-3d-printed-parts">https://markforged.com/resources/blog/embedding-components-in-3d-printed-parts</a> (last visited Mar. 23, 2022); How to Insert Internal
Components with Markforged Composite 3D Printing, <a href="http://Hawkridgesys.com">Hawkridgesys.com</a>
(June 9, 2020), available at <a href="https://hawkridgesys.com/blog/how-to-insert-internal-components-with-markforged-composite-3d-printing">https://hawkridgesys.com/blog/how-to-insert-internal-components-with-markforged-composite-3d-printing</a>
(last visited Mar. 23, 2022).
---------------------------------------------------------------------------
The Department, however, disagrees that serialization should be
limited to a particular method. The current regulations and this rule
already require that identification marks be placed in a manner not
susceptible of being readily obliterated, altered, or removed. While
the commenters raised the point that the serial number with the Federal
firearms licensee's abbreviated license number prefix would normally be
placed on a metal insert to meet this requirement, the Department
believes that other permanent methods and hardened materials for
marking may be developed in the future as technology progresses.
[[Page 24673]]
Additionally, the GCA, 18 U.S.C. 922(p), only requires that firearms be
as detectable as the ``Security Exemplar'' that contains 3.7 ounces of
material type 17-4 PH stainless steel. This detectable material is
likely to be metal, but it could be another substance. So long as the
identification marks cannot readily be removed, obliterated, or
altered, no additional marking requirement is necessary.\70\ However,
if the serial number or other markings may readily be removed,
obliterated, or altered when placed using a particular method or
material, then the licensee cannot adopt that serialization process to
meet the identification requirements.
---------------------------------------------------------------------------
\70\ See 26 U.S.C. 5842(a) (serial number ``may not be readily
removed, obliterated, or altered'').
---------------------------------------------------------------------------
In response to the comment that the rule should extend the
serialization requirement for PMFs to individual owners, unlike the
NFA, the GCA does not impose a marking or recordkeeping requirement on
unlicensed persons who are not engaged in a business or activity
requiring a license. Nonetheless, under the GCA, 18 U.S.C. 927, State
and local jurisdictions are free to enact their own requirements and
restrictions on PMFs provided they do not directly and positively
conflict with Federal law.
f. Marking of a ``Firearm Muffler or Silencer''
Comments Received
At least one commenter welcomed the change under which silencers
would only need to be marked on the designated frame or receiver of a
silencer, and that minor components of silencers would not need to be
engraved or registered when transferred between Special Occupation
Taxpayers (``SOTs'') for repair. This provision, the commenter stated
approvingly, conforms policy to longstanding practice.
Department Response
The Department acknowledges commenters' support for the proposal
not to require firearm mufflers or silencer parts other than the frame
or receiver of a silencer to be marked or registered when transferred
between qualified SOTs for repair. This rule finalizes that proposal
with minor clarifying changes. The Department notes that this change
would not adversely impact public safety because the frame or receiver
of the complete firearm muffler or silencer devices being repaired are
registered in the NFRTR and recorded as a disposition whenever an
actual device is transferred.
g. Firearms Designed and Configured Before Effective Date of Rule
Comments Received
The group Everytown for Gun Safety Support Fund stated that ATF
needs to make clear that its prior classifications of ``nearly-
complete'' frames and receivers are no longer valid, as some sellers of
these items display these classification letters on their websites to
promote their products. The commenter said that this clarification was
necessary to ensure these sellers do not continue to exploit outdated
letters as legal cover for selling firearms illegally.
Department Response
The Department agrees with this comment. Certain prior ATF
classifications of a ``partially complete, disassembled, or
nonfunctional frame or receiver'' will not be grandfathered upon
issuance of this final rule. In the past, ATF encountered situations in
which incomplete frames or receivers were sent to ATF for
classification without any of the other parts, jigs, templates, or
materials that are sold or distributed with the item or kit. ATF then
issued a classification that an unfinished item or kit was not a
``frame or receiver'' without the benefit of, or considering, such
parts, jigs, templates, or information. In addition to not
grandfathering these particular classifications, this rule finalizes
the proposed process that any person seeking a voluntary classification
must submit any associated templates, jigs, molds, equipment, or tools
that are made available by the seller or distributor of the item or
kit, to the purchaser or recipient of the item or kit, and any
instructions, guides, or marketing materials if they will be made
available by the seller or distributor with the item or kit. This is to
ensure that a proper classification can be made under the new
definitions. ATF will reconsider those firearm classifications, and any
prior classificati
[…truncated; see source link]Indexed from Federal Register on April 26, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.