# Definition of “Frame or Receiver” and Identification of Firearms

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2021-10058

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** May 21, 2021
- **Citation:** 86 FR 27720

## Text

DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Parts 447, 478, and 479
[Docket No. ATF 2021R-05; AG Order No. 5051-2021]
RIN 1140-AA54
Definition of “Frame or Receiver” and Identification of Firearms

AGENCY:

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

ACTION:

Notice of proposed rulemaking; request for comment.

SUMMARY:

The Department of Justice (“Department”) proposes amending Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) regulations to provide new 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 also proposes 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,” “privately made firearm,” and “readily” for purposes of clarity given advancements in firearms technology. Further, the Department proposes amendments to ATF's regulations on marking and recordkeeping that are necessary to implement these new or amended definitions.

DATES:

Written comments must be postmarked and electronic comments must be submitted on or before August 19, 2021. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after Midnight Eastern Time on the last day of the comment period.

ADDRESSES:

You may submit comments, identified by docket number ATF 2021R-05, by any of the following methods—

•
Federal eRulemaking Portal: www.regulations.gov.
Follow the instructions for submitting comments.

•
Mail:
Andrew Lange, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Ave. NE, Mail Stop 6N-518, Washington, DC 20226;
ATTN: ATF 2021R-05.

•
Fax:
(202) 648-9741.

Instructions:
All submissions received must include the agency name and docket number (ATF 2021R-05) for this notice of proposed rulemaking (“NPRM” or “proposed rule”). All properly completed comments received will be posted without change to the Federal eRulemaking portal,
www.regulations.gov,
including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” heading of the
SUPPLEMENTARY INFORMATION
section of this document.

FOR FURTHER INFORMATION CONTACT:

Andrew Lange, 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, Mail Stop 6N-518, Washington, DC 20226; telephone: (202) 648-7070 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Background

The Attorney General is responsible for enforcing the Gun Control Act of 1968 (“GCA”), as amended, and the National Firearms Act of 1934 (“NFA”), as amended.
1

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). 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
28 U.S.C. 599A(b)(1); 28 CFR 0.130(a)(1)-(2). Accordingly, the Department and ATF have promulgated regulations implementing the GCA and NFA.
See
27 CFR parts 478, 479.

1
NFA provisions still refer to the “Secretary of the Treasury.” 26 U.S.C. ch. 53. However, the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135 (2002), 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 notice of proposed rulemaking refers to the Attorney General throughout.

Prior to passage of the GCA, the Federal Firearms Act of 1938 (“FFA”) regulated all firearm parts. The FFA and implementing regulations defined the term “firearm” to mean “any weapon, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosive and a firearm muffler or firearm silencer,
or any part or parts of such weapon.”
Public Law 75-785, 52 Stat. 1250 (1938); 26 CFR 177.10 (repealed) (emphasis added). The Omnibus Crime Control and Safe Streets Act of 1968 repealed the FFA, replacing it with the GCA. Public Law 90-351, section 907, 82 Stat. 197 (1968). During debate on the GCA and related bills introduced to address firearms trafficking, Congress recognized that regulation of all firearm parts was impractical. Senator Dodd explained that “[t]he present definition of this term includes `any part or parts' of a firearm. It has been impractical to treat each small part of a firearm as if it were a weapon. The revised definition substitutes the words `frame or receiver' for the words `any part or parts.' ”
See
111 Cong. Rec. 5527 (March 22, 1965).
2

2

See also
H.R. Rep. 90-1577, at 4416 (June 21, 1968) (“Under former definitions of `firearm,' any part or parts of such a weapon were included. It was found impractical to have controls over each small part of a firearm. Thus, this definition includes only the major parts of the firearm, that is, the frame or receiver.”); S. Rep. No. 90-1097, at 2200 (April 29, 1968) (same).

A “firearm” is defined by 18 U.S.C. 921(a)(3) 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. 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);
id.
at 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.”
3

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.

3
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);
id.
at 479.102(e); ATF Ruling 2012-1.

A “frame or receiver” is the primary structural component of a firearm to which fire control components are attached.
4

While the GCA does not

define the term “frame or receiver,” to implement the statute, the terms “firearm frame or receiver” and “frame or receiver” were defined in regulations several decades ago as that part of a firearm that 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
5

(implementing GCA, Title II). The intent in promulgating these definitions was to provide guidance as to which portion of a firearm was the frame or receiver for purposes of licensing, serialization, and recordkeeping, thereby ensuring that a necessary component of the weapon could be traced if later involved in a crime.

4

See
Webster's Third New International Dictionary, pp. 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”);
Olson's Encyclopedia of Small Arms,
p.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 (excepting hinged frame guns) 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.”).

5
The definition of “frame or receiver” in § 479.11 differs slightly from the definition in § 478.11 in that it omits an Oxford comma between “bolt or breechblock” and “firing mechanism.”

At the time these definitions were published around 50 years ago, single-framed firearms such as revolvers and break-open shotguns were far more prevalent for civilian use than split/multi-piece 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. Years after these definitions were published, split/multi-piece receiver firearms, such as the AR-15 semiautomatic rifle (upper receiver and lower receiver), Glock semiautomatic pistols (upper slide assembly and lower grip module), and Sig Sauer P320 (M17/18 as adopted by the U.S. military) (upper slide assembly, chassis, and lower grip module), became popular.
6

Additionally, more firearm manufacturers began incorporating a striker-fired mechanism rather than a “hammer” in the firing design. With the rise in popularity of striker-fired Glock semiautomatic pistols in the mid-1980s, other manufacturers began incorporating a striker-fired mechanism, rather than a hammer, in semiautomatic handguns.
7

6

See Once Banned, Now Loved and Loathed: How the AR-15 Became `America's Rifle',
New York Times (Mar. 3, 2018),
https://www.nytimes.com/2018/03/03/us/politics/ar-15-americas-rifle.html
(Once the patent expired in 1977, “it opened the way for dozens of weapons manufacturers to produce their own models, using the same technology. The term AR-15 has become a catchall that includes a variety of weapons that look and operate similarly”); Paul M. Barrett,
Glock: The Rise of America's Gun
21-23 (2013) (“Today the Glock is on the hip of more American police officers than any other handgun.”);
A Star Is Born—U.S. Army Chooses Sig Sauer P320 For Its New Service Pistol,

Forbes.com
(Jan. 20, 2017)
https://www.forbes.com/sites/frankminiter/2017/01/20/a-star-is-born-u-s-army-chooses-sig-sauer-p320-for-its-new-service-pistol/.
While millions of AR-15s/M-16s existed at the time ATF promulgated the definitions, they were manufactured almost exclusively for military use.
See
Internal Colt Memorandum from B. Northrop, Feb. 2, 1973, p.2 (noting that there were 2,752,812 military versus 25,774 civilian (“Sporters”) serialization of AR-15/M-16 rifles then manufactured).

7

A Matter of Purpose: Striker Fire vs. Hammer Fire,
Small Arms Defense Journal (June 8, 2018),
http://www.sadefensejournal.com/wp/a-matter-of-purpose-striker-fire-vs-hammer-fire/
(“Even though Glock wasn't the first to use striker fire on pistols, Glock can be credited for making the striker fire popular in the 1980s when they started using striker fire in their entire line of pistols. As Glock became popular, other manufacturers started using striker fire as well, proliferating it across the firearms manufacturing community on a grand scale.”).

A. ATF's Application of the Definitions To Split Frames or Receivers

Although ATF's regulatory definitions of “frame or receiver” do not expressly capture these types of firearms (
i.e.,
split/multi-piece receivers) that now constitute the majority of firearms in the United States,
8

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.
9 10

8

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% of currently manufactured firearms in the United States include the 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.”).

9
ATF Internal Revenue Service Memoranda #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].”).

10
Regulations implementing the relevant statutes spell the term “machine gun” rather than “machinegun.”
E.g.,
27 CFR 478.11, 479.11. For convenience, this notice of proposed rulemaking uses “machinegun” except when quoting a source to the contrary.

Since it began issuing firearm classifications under the GCA and NFA in private letter rulings and for criminal investigations, ATF has considered a variety of factors when examining firearms, including: (a) Which component the manufacturer intended to be the frame or receiver; (b) which component the firearms industry commonly considers to be the frame or receiver with respect to the same or similar firearms; (c) how the component fits within the overall design of the firearm when assembled; (d) the design and function of the fire control components to be housed, such as the hammer, bolt or breechblock, and firing mechanism; (e) whether the component could permanently, conspicuously, and legibly be identified with a serial number and other markings in a manner not susceptible of being readily obliterated, altered, or removed, in accordance with regulations; (f) whether classifying the particular component is consistent with the legislative intent of the GCA and implementing regulations; and (g) whether classifying the component as the frame or receiver is consistent with ATF's prior classifications.

Even though neither the upper nor the lower portion of a split/multi-piece receiver firearm alone falls within the precise wording of the regulatory definition, ATF has for many years interpreted the regulatory definition using these factors as a guide in determining which portion of a weapon model is a firearm frame or receiver. Indeed, the current definitions were never intended to be, or understood to be, exhaustive; 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, and ATF has long applied these factors in determining which component of those weapons qualifies as the frame or receiver.
11

11

See
footnote 9
supra.

Existing law recognizes that the definition of “frame or receiver” need not be limited to a strict application of the regulation. The prefatory paragraph to the definitional section of 27 CFR 478.11 (Meaning of Terms) states: “[w]hen used in this part and in forms

prescribed under this part, where not otherwise distinctly expressed or manifestly incompatible with the intent thereof, terms shall have the meanings ascribed in this section.”
12

The intent of Congress, as indicated by the plain language and the statutory scheme of the GCA, is to regulate—as a firearm—the frame or receiver of a firearm.
See
111 Cong. Rec. 5527 (March 22, 1965). As stated above, Congress replaced the term “part or parts” in the FFA definition of “firearm” with “frame or receiver,” the major parts of a weapon regulated under the GCA. This includes marking these parts with serial numbers for tracing purposes, recording these parts as “firearms” in required records, and running a National Instant Criminal Background Check System (“NICS”) background check when individuals purchase or acquire them.

12
ATF's predecessor agency, the Alcohol, Tobacco and Firearms Division within the Internal Revenue Service, derived this limitation on the application of definitions from the Internal Revenue Code (“IRC”), 26 U.S.C. 7701(a). Courts interpreting definitions in the IRC have not strictly applied those definitions where they would be manifestly incompatible with the intent of the applicable statute.
See, e.g., Pierre
v.
Commissioner,
133 T.C. 24, 35 (2009) (even though a Limited Liability Company was not among any of the named entities defined in section 7701, it would be manifestly incompatible with the Federal estate and gift tax statutes to exclude them);
Bunnel
v.
Commissioner,
50 T.C. 837, 841 (1968) (literal application of the definition of “taxpayer” in section 7701(a)(14) was avoided where it was manifestly incompatible with the intent of other sections of the IRC);
Davis
v.
Commissioner,
30 T.C. 462, 466-67 (1958) (strict geographical application of the term “United States” in 26 U.S.C. 3797(a)(9) (now 7701(a)(9)) to the territory of American Samoa, rather than in a political sense, would be manifestly incompatible with the intent and purpose of the income tax exemption for persons earning income outside the United States).

In the past few years, however, some courts have treated the regulatory definition as exhaustive 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. While ATF for decades has classified the lower receiver of the AR-15 rifle as a “frame or receiver,” courts recently have read the regulatory definition to mean that the lower portion of the AR-15 is not a “frame or receiver” because it only provides housing for the hammer and firing mechanism, but not the bolt or breechblock.
See United States
v.
Rowold,
429 F. Supp. 3d 469, 475-77 (N.D. Ohio 2019) (“The language of the regulatory definition in § 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.”);
United States
v.
Jimenez,
191 F. Supp. 3d 1038, 1041 (N.D. Cal. 2016) (“[A] receiver must have the housing for three elements: hammer, bolt or breechblock, and firing mechanism.”);
United States
v.
Joseph Roh,
SACR 14-167-JV, Minute Order p. 6 (C.D. Cal. July 27, 2020) (granting defendant's post-trial motion for acquittal for manufacturing AR-15 lower receivers without a license because “[n]o reasonable person would understand that a part constitutes a receiver where it lacks the components specified in regulation”).

These courts' interpretation of ATF's regulations, if broadly followed, 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.
13

Those firearms would include numerous widely available models, such as Glock-type and Sig Sauer P320
14

pistols, that do not utilize a hammer—a named component—in the firing sequence. Such a narrow interpretation of what constitutes a frame or receiver would allow persons to avoid: (a) Obtaining a license to engage in the business of manufacturing or importing upper or lower frames or receivers; (b) identifying upper or lower frames or receivers with a serial number and other traceable markings; (c) maintaining records of upper or lower frames or receivers produced or imported through which they can be traced; and (d) running NICS checks on potential transferees to determine if they are legally prohibited from receiving or possessing firearms when they acquire upper or lower frames or receivers. In turn, this would allow prohibited persons to acquire upper and lower receivers that can quickly be assembled into semiautomatic weapons more easily and without a background check.
15

If no portion of split/multi-piece frames or receivers were subject to any existing regulations, such as marking, recordkeeping, or background checks, law enforcement's ability to trace semiautomatic firearms later used in crime would be severely impeded. This result would thereby 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).
16

13

See
footnote 8,
supra.

14
The United States military services have adopted variants of the Sig Sauer P320 as their official side arm, and are in the process of purchasing up to 500,000 of these striker-fired pistols.
Army Picks Sig Sauer's P320 Handgun to Replace M9 Service Pistol,

Military.com
(Jan. 19, 2017),
https://www.military.com/daily-news/2017/01/19/army-picks-sig-sauer-replace-m9-service-pistol.html; Every U.S. military branch is about to get its hands on the Army's new sidearm of choice,

Taskandpurpose.com
(Nov. 18, 2020),
https://taskandpurpose.com/military-tech/modular-handgun-system-fielding/
(Sig Sauer delivered its 200,000th P320 variant pistol to the military despite the obstacles posed by the novel coronavirus).

15

See Design of AR-15 could derail charges tied to popular
rifle,
APnews.com
(Jan. 13, 2020),
https://apnews.com/article/396bbedbf4963a28bda99e7793ee6366.

16

See
footnote 2,
supra.

B. Privately Made Firearms or “Ghost Guns”

Technological advances have also made it easier for unlicensed persons to make firearms at home from standalone parts or weapon parts kits, or by using 3D printers or personally owned or leased equipment, without any records or a background check. Commonly referred to as “ghost guns,” these 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 disposed.

In recent years, the number of PMFs recovered from crime scenes throughout the country has increased.
17

From January 1, 2016, through December 31, 2020, there were approximately 23,906 suspected PMFs reported to ATF as having been recovered by law enforcement from potential crime scenes, including 325 homicides or attempted homicides, and that were attempted to be traced by ATF, broken down by year as follows:
18

17

See Baltimore police report a 400% increase in untraceable `ghost guns',
The Baltimore Sun (Feb. 18, 2021),
http://www.baltimoresun.com/news/crime/bs-pr-md-ci-cr-ghost-gun-ban-20210218-ae2dortu6ngn5llmfmq6yxtx6m-story.html; Syracuse joins lawsuit against feds amid rise in ghost guns,
WRVO Syracuse (Aug. 27, 2020),
https://www.wrvo.org/post/syracuse-joins-lawsuit-against-feds-amid-rise-ghost-guns#stream/0; Ghost Guns: The build-it-yourself firearms that skirt most federal gun laws and are virtually untraceable,
CBS News (May 10, 2020),
https://www.cbsnews.com/news/ghost-guns-untraceable-weapons-criminal-cases-60-minutes-2020-05-10/; Untraceable ghost guns proliferate as Philadelphia grapples with violence,
The Morning Call (Mar. 18, 2020),
https://www.mcall.com/news/pennsylvania/mc-nws-pa-philadelphia-ghost-guns-20200318-jzyt4thyvvgntproexbleyleay-story.html; Ghost Guns Are Everywhere in California,
The Trace (May 17, 2019),
https://www.thetrace.org/2019/05/ghost-gun-california-crime/; The Rise of Untraceable Ghost Guns,
Wall Street Journal (Jan. 4, 2018),
https://www.wsj.com/articles/the-rise-of-untraceable-ghost-guns-1515061800; How D.C. Is Addressing An Ongoing Spike In Gun Violence,
NPR Washington (Mar. 2, 2020),
https://www.npr.org/local/305/2020/03/02/811194978/how-d-c-is-addressing-an-ongoing-spike-in-gun-violence; Untraceable `Ghost Guns' sold across Central Florida,
WKMG-TV Orlando (Nov. 15, 2016),
https://www.clickorlando.com/getting-results/2016/11/15/untraceable-ghost-guns-sold-across-central-florida/.

18
Source: ATF Office of Strategic Intelligence and Information. These numbers (as of March 4, 2021)

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 number 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 an individual. 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 them that was stolen or otherwise not from at 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.

2016: 1,750

2017: 2,507

2018: 3,776

2019: 7,161

2020: 8,712

It is, therefore, not unexpected that numerous Federal criminal cases have been brought by the Department to counter illegal trafficking in unserialized home-completed and assembled weapons, and possession of such weapons by prohibited persons.
19

19

See, e.g., Kissimmee Man Sentenced To Five Years In Prison For Manufacturing Over 200 “Ghost Guns” Without A License,
D.O.J Office of Public Affairs (June 12, 2018),
https://www.justice.gov/usao-mdfl/pr/kissimmee-man-sentenced-five-years-prison-manufacturing-over-200-ghost-guns-without; Grass Valley Man Sentenced to 5 Years in Prison for Unlawfully Manufacturing Ghost Guns and Selling Them on Dark Web,
DOJ Office of Public Affairs (Sept. 21, 2018),
https://www.justice.gov/usao-edca/pr/grass-valley-man-sentenced-5-years-prison-unlawfully-manufacturing-ghost-guns-and; Rhode Island Man Charged with Building, Selling “Ghost” Machine Gun,
DOJ Office of Public Affairs (Dec. 12, 2018),
https://www.justice.gov/usao-ri/pr/rhode-island-man-charged-building-selling-ghost-machine-gun; Conroe Man Ordered to Prison for Making “Ghost Guns”,
DOJ Office of Public Affairs (Feb. 21, 2019)
https://www.justice.gov/usao-sdtx/pr/conroe-man-ordered-prison-making-ghost-guns; Seven Felons Indicted, Dozens of Firearms Seized as Part of Investigation Targeting Criminal Gun Sales in Orange County,
DOJ Office of Public Affairs (Oct. 10, 2019),
https://www.justice.gov/usao-cdca/pr/seven-felons-indicted-dozens-firearms-seized-part-investigation-targeting-criminal-gun; Man Sentenced to 15 Years for Trafficking “Ghost Guns” and Drugs,
DOJ Office of Public Affairs (Feb. 14, 2020),
https://www.justice.gov/usao-edva/pr/man-sentenced-15-years-trafficking-ghost-guns-and-drugs; Tampa Man Sentenced To Over Five Years For Manufacturing Counterfeit Credit Cards, Fake IDs, And Illegal Firearms,
DOJ Office of Public Affairs (June 26, 2020),
https://www.justice.gov/usao-mdfl/pr/tampa-man-sentenced-over-five-years-manufacturing-counterfeit-credit-cards-fake-ids-and; Alleged Dealer of Ghost Guns and Machinegun Conversion Devices Arraigned,
DOJ Office of Public Affairs (July 15, 2020),
https://www.justice.gov/usao-edva/pr/alleged-dealer-ghost-guns-and-machinegun-conversion-devices-arraigned; Connecticut Man Charged with Firearm Trafficking,
DOJ Office of Public Affairs (Aug. 12, 2020),
https://www.justice.gov/usao-ma/pr/connecticut-man-charged-firearm-trafficking; Operation `Black Phoenix' Leads to Federal Charges Against 25 Who Allegedly Engaged in Illegal Narcotics and Firearms Sales,
DOJ Office of Public Affairs (Sept. 15, 2020),
https://www.justice.gov/usao-cdca/pr/operation-black-phoenix-leads-federal-charges-against-25-who-allegedly-engaged-illegal; D.C. Felon Pleads Guilty in Federal Court in Maryland to Illegal Possession of a “Ghost Gun” Firearm and Ammunition,
DOJ Office of Public Affairs (Sept. 22, 2020),
https://www.justice.gov/usao-md/pr/dc-felon-pleads-gui&lty-federal-court-maryland-illegal-possession-ghost-gun-firearm-and; Ghost Gun and Machine Gun Conversion Device Dealer Pleads Guilty,
DOJ Office of Public Affairs (Sept. 29, 2020),
https://www.justice.gov/usao-edva/pr/ghost-gun-and-machine-gun-conversion-device-dealer-pleads-guilty; Felon sentenced to more than five years in prison for arsenal of `ghost guns' and smuggled silencers,
DOJ Office of Public Affairs (Oct. 9, 2020),
https://www.justice.gov/usao-wdwa/pr/felon-sentenced-more-five-years-prison-arsenal-ghost-guns-and-smuggled-silencers; Montgomery County Man Admits to Unlawfully Selling “Ghost Guns”,
DOJ Office of Public Affairs (Nov. 5, 2020),
https://www.justice.gov/usao-ndny/pr/montgomery-county-man-admits-unlawfully-selling-ghost-guns; Drug Dealer Who Sold “Ghost Guns,” Silencers, and a Machinegun Sentenced to Thirty Years in Federal Prison,
DOJ Office of Public Affairs (Nov. 6, 2020),
https://www.justice.gov/usao-ndia/pr/drug-dealer-who-sold-ghost-guns-silencers-and-machinegun-sentenced-thirty-years-federal; Baltimore Man Sentenced to 21 Years in Federal Prison for Five Bank Robberies, Five Armed Robberies of Liquor Stores, and Related Firearms Charges,
DOJ Office of Public Affairs (Nov. 12, 2020),

https://www.justice.gov/usao-md/pr/baltimore-man-sentenced-21-years-federal-prison-five-bank-robberies-five-armed-robberies; Philadelphia Man Sentenced to 12
1/2
Years for Trafficking Methamphetamine and Weapons, Including `Ghost Guns,' Near Schools,

DOJ Office of Public Affairs (Dec. 30, 2020),
https://www.justice.gov/usao-edpa/pr/philadelphia-man-sentenced-12-12-years-trafficking-methamphetamine-and-weapons; Vineland Boys Gang Member Pleads Guilty to Racketeering Offenses, Including Attempted Murder and Narcotics Trafficking,
DOJ Office of Public Affairs (Jan. 22, 2021),
https://www.justice.gov/usao-cdca/pr/vineland-boys-gang-member-pleads-guilty-racketeering-offenses-including-attempted; Burbank Man Arrested on Federal Complaint Alleging He Sold `Ghost Guns' Out of His Hookah Lounge,
DOJ Office of Public Affairs (Jan. 29, 2021),
https://www.justice.gov/usao-cdca/pr/burbank-man-arrested-federal-complaint-alleging-he-sold-ghost-guns-out-his-hookah; Saratoga County Man Admits to Unlawfully Selling “Ghost Guns” and Methamphetamine Distribution,
DOJ Office of Public Affairs (Feb. 3, 2021),
https://www.justice.gov/usao-ndny/pr/saratoga-county-man-admits-unlawfully-selling-ghost-guns-and-methamphetamine; Orange County Man Sentenced to 10 Years in Federal Prison for Brokering Illegal Sales of `Ghost Guns,' Other Firearms,
DOJ Office of Public Affairs (Feb. 8, 2021),
https://www.justice.gov/usao-cdca/pr/orange-county-man-sentenced-10-years-federal-prison-brokering-illegal-sales-ghost-guns.

The problem of untraceable firearms being acquired and used by violent criminals and terrorists is international in scope. On May 28, 2019, citing intelligence reports by the Department of Homeland Security (“DHS”), the Federal Bureau of Investigation (“FBI”), and the National Counterterrorism Center (“NCTC”), the House Committee on Homeland Security issued a report concluding that “[g]host guns not only pose a challenge on the front end, enabling prohibited buyers to purchase deadly weapons with just a few clicks online, but also on the back end, hamstringing law enforcement's ability to investigate crimes committed with untraceable weapons” and that the “wide availability of ghost guns and the emergence of functional 3D-printed guns are a homeland security threat. Terrorists and other bad actors may seek to exploit the availability of these weapons for dangerous ends.” H.R. Rep. No. 116-88, at 2 (May 28, 2019).
20

Criminal investigations and studies highlight this concern.
21

20
Specifically, 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 19, 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.” H.R. Rep. No. 116-88, at 2.

21

CBP: 3-D-printed full-auto rifle seized at Lukeville crossing, tucsonsentinel.com
(Feb. 8, 2016),
http://www.tucsonsentinel.com/local/report/020816_3d_printed_gun/cbp-3-d-printed-full-auto-rifle-seized-lukeville-crossing/; Firearms using 3D-printed components seized in Sweden,
Armament Research Services (May 19, 2017),
https://armamentresearch.com/3d-printed-firearms-seized-in-sweden/; The TSA Has Found 3D-Printed Guns at Airport Checkpoints 4 Times Since 2016,
Time (Aug. 2, 2018),
https://time.com/5356179/3d-printed-guns-tsa/; Indiana Residents Indicted on Terrorism and Firearms Charges,
DOJ Office of Public Affairs (July 11, 2019),
https://www.justice.gov/opa/pr/indiana-residents-indicted-terrorism-and-firearms-charges; Use of 3D printed guns in German synagogue shooting must act as warning to security services, experts say,

independent.co.uk
(Oct. 11, 2019),
https://www.independent.co.uk/news/world/europe/3d-gun-print-germany-synagogue-shooting-stephan-balliet-neo-nazi-a9152746.html; TSA Confiscated 3D-Printed Guns at Raleigh-Durham International Airport,

nextgov.com
(Mar. 4, 2020),
https://www.nextgov.com/emerging-tech/2020/03/tsa-confiscated-3d-printed-guns-raleigh-durham-international-airport/163533/; Man Sentenced for Attempting to Board International Flight with a Loaded Firearm,
DOJ Office of Public Affairs (Mar. 12, 2021),
https://www.justice.gov/usao-sdca/pr/man-sentenced-attempting-board-international-flight-loaded-firearm; Glock ghost guns up for grabs on the dark web,
Australian National University (Mar. 23, 2021),
https://www.anu.edu.au/news/all-news/glock-ghost-guns-up-for-grabs-on-the-dark-web; Spain dismantles workshop making 3D-printed weapons,
BBC, (Apr. 19, 2021),
https://www.bbc.com/news/world-europe-56798743.

The GCA “insists that the dealer keep certain records, to enable 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. Rep. No. 1577, 90th Cong., 2d Sess., 14 (1968)). “That information helps to fight serious crime.”
Id.
at 182;
see also
Identification Markings Placed on Firearms, 66 FR 40597 (Aug. 3, 2001) (“Firearms tracing is an integral part of

any investigation involving the criminal use of firearms.”);
Blaustein & Reich, Inc.
v.
Buckles,
220 F. Supp. 2d 535, 537 (E.D. Va. 2002) (ATF has a statutory duty pursuant to the GCA to trace firearms to keep them out of the hands of criminals).
22

An accurate firearm description is necessary to trace a firearm and is 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.
23

22

See also
ATF Ruling 2009-5, p.2 (“The unique marks of identification of firearms serve several purposes. First, the marks are used by Federal firearms licensees to effectively track their firearms inventories and maintain all required records. Second, the marks enable law enforcement officers to trace specific firearms used in crimes from the manufacturer or importer to individual purchasers, and to identify particular firearms that have been lost or stolen. Further, marks help prove in certain criminal prosecutions that firearms used in a crime have travelled in interstate or foreign commerce.”).

23

See
18 U.S.C. 923(g)(1)(D); 27 CFR 478.125(f) (disposition records of a Federal firearms licensee's personal collection firearms must contain a complete description of the firearm); House Consideration and Passage of S.2414, 99th Cong., 2d Sess., 132 Cong. Rec. 15229 (June 24, 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. There 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.”).

ATF traces firearms found by law enforcement at a crime scene by first contacting the licensed manufacturer or importer marked on the frame or receiver who maintains permanent records of their manufacture or importation and disposition. Using the information obtained from those required records, ATF then contacts each licensed dealer or other licensee who recorded their receipt and disposition to locate the first unlicensed purchaser to help find the perpetrator or otherwise solve the crime.
24

However, because PMFs do not bear a serial number or other markings of a licensed manufacturer or importer, ATF has found it extremely difficult to complete such traces on behalf of law enforcement to individual unlicensed purchasers. From January 1, 2016, through March 4, 2021, ATF could only complete traces of suspected PMFs recovered by law enforcement to an individual purchaser in approximately 151 out of 23,946 attempts, generally by tracing a serial number engraved on a handgun slide, barrel, or other firearm part not currently defined as a frame or receiver, but recorded by licensees in the absence of other markings.
25

24
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).

25
Source: ATF Office of Strategic Intelligence and Information. These figures were extracted on May 5, 2021, and include traces for both U.S. and international law enforcement agencies.

With the proliferation of PMFs, ATF has also received numerous requests from licensees seeking clarity on how they may be accepted and recorded so that they can track their inventories, process warranty claims, reconcile any missing inventory, respond to trace requests, and report lost or stolen PMFs to police and insurance companies. Federal law and regulations require licensees, before conducting business, to inventory the firearms possessed for such business and record it in a Firearms Acquisition and Disposition Record (“A&D Record”).
26

After commencing business, licensees must record all firearms received and disposed of by the business in the A&D Record to include the following information separated into columns: Manufacturer and/or importer, model, serial no., type, and caliber or gauge.
27

When a firearm is disposed to an unlicensed person, licensees are required to complete a Firearms Transaction Record, ATF Form 4473 (“Form 4473”).
28

Like the A&D Record, this form requires licensees to record the manufacturer and importer, model (if designated), serial number, type, and caliber or gauge of the firearm. Licensees are also required by law to report the theft or loss of firearms on a Federal Firearms Licensee Theft/Loss Report, ATF Form 3310.11, which includes a description of the manufacturer, importer, model, serial number, type, and caliber/gauge of each firearm stolen or lost.
29

And when licensees sell or otherwise dispose of multiple pistols or revolvers within five consecutive business days to the same person, they must report to ATF the type, serial number, manufacturer, model, importer, and caliber on a Report of Multiple Sale or Other Disposition of Pistols and Revolvers, ATF Form 3310.4.
30

26
27 CFR 478.125(e).

27
18 U.S.C. 923(g)(1)(A); 27 CFR 478.125(e), (f).

28
18 U.S.C. 923(g)(1)(A); 27 CFR 478.124.

29
18 U.S.C. 923(g)(6); 27 CFR 478.39a(b).

30
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 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 15 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.

However, because PMFs do not have markings identifying the name of a licensed manufacturer or importer, model, serial number, or caliber/gauge, licensees might only record a “type” of firearm (
e.g.,
pistol, revolver, rifle, or shotgun) in their A&D Records and on ATF Forms 4473. Over time, as more PMFs are accepted into inventory, it will become increasingly difficult, if not impossible, for licensees and ATF (during inspections) to distinguish between those PMFs physically in the firearms inventory and those recorded in required A&D Records, as well as determine which PMFs recorded as disposed on ATF Form 4473, were those recorded as disposed in the A&D Record.
31

Likewise, it will be difficult for licensees and ATF to accurately determine which PMFs were stolen or lost from inventory, and for police to locate stolen PMFs in the business inventories of pawnbrokers,
32

or to return any recovered stolen or lost PMFs to their rightful owners.

31
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).

32
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 section 5-19A-3(1); Alaska Stat. section 08.76.180(a)(4); Ariz. Rev. Stat. section 44-1625(C)(5); Colo. Rev. Stat. section 29-11.9-103(1); Conn. Gen. Stat. section 21-41(c); Del. Code tit. 24, section 2302(a)(1)(b); DC Code section 47-2884.11(d); Fla. Stat. section 538.04(1)(b)(3),(9); Ga. Code section 44-12-132(4); Haw. Rev. Stat. section 445-134.11(c)(10); 205 Ill. Comp. Stat. section 510/5(a); Ind. Code section 28-7-5-19(a)(4); Ky. Rev. Stat. Ann. section 226.040(1)(d)(7); La. Stat. Ann. section 37:1782(16)(a); Mass. Gen. Laws ch. 140 section 79; Mich. Comp. Laws section 446.205(5)(1),(4); Minn. Stat. section 325J.04(Sub.1)(1); Miss. Code Ann. section 75-67-305(1)(a)(iii),(ix); Mo. Rev. Stat. section 367.040(6)(b); Neb. Rev. Stat. section 69-204(3); N.M. Stat. section 56-12-9(A)(3); N.C. Gen. Stat. section 66-391(b)(1); Ohio Rev. Code section 4727.07; Okla. Stat. tit. 59 section 1509(D)(h); S.C. Code Ann. section 40-39-80(B)(1)(l)(iii),(ix); Tenn. Code Ann. section 45-6-209(b)(1)(C),(H); Tex. Fin. Code section 371.157(4); Utah Code section 13-32a-104(1)(h)(i)(A); Va. Code Ann. section 54.1-4009(A)(1); Wash. Rev. Code section 19.60.020(1)(e); W. Va. Code section 47-26-2(b)(1); Wis. Stat. section 134.71(8)(c)(2).

Not only does the inability to distinguish between unmarked firearms

make it extremely difficult for law enforcement to trace PMFs involved in crime, it also makes it more difficult for Federal, State, and local law enforcement to identify and prosecute illegal firearms traffickers who are often tied to violent criminals and armed narcotics traffickers.
33

The ATF Form 4473 is the primary evidence used to prosecute straw purchasers who buy firearms from a Federal firearms licensee on behalf of prohibited persons, such as felons, and other persons who could use them to commit a violent crime. 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 Federal firearms licensee 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.
34

But as unmarked and difficult-to-trace PMFs proliferate throughout the marketplace, it is likely to become increasingly difficult to prove that firearms acquired under false pretenses on a Form 4473 were the ones found in the hands of the true purchaser—and thus more difficult to prosecute straw purchasers for making false statements.
35

This assumes, of course, that the PMF involved in the crime could even be traced to the Federal firearms licensee, or that the correct Form 4473 could be located. 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.
36

33

See United States
v.
Marzzarella,
614 F.3d 85, 100 (3rd 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.”);
Following the Gun, Enforcing Federal Laws Against Firearms Traffickers,
ATF Publication, pp.1, 26 (June 2000) (serial number obliteration is a clear indicator of firearms trafficking to, among other criminals, armed narcotics traffickers).

34

See, e.g., Abramski
v.
United States,
573 U.S. 169 (2014);
Marshall
v.
Commonwealth,
822 S.E.2d 389 (Va. App. 2019);
Commonwealth
v.
Baxter,
956 A.2d 465 (Pa. Super 2008).

35

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 (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).

36
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);
id.
at 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);
id.
at 922(u) (stealing a firearm that has been shipped or transported in interstate or foreign commerce from the person or premises of an FFL);
id.
at 924(l) (stealing a firearm which is moving in or has moved in interstate commerce); and
id.
at 924(m) (stealing a firearm from a licensee).

Although clarifying the definition of “frame or receiver” in this rule would help the firearms industry and the public understand which part of a complete weapon is the regulated “frame or receiver,” and more commercially manufactured frames or receivers are likely to be marked by licensed manufacturers as a result, PMFs are increasingly being made or 3D printed at home without any identifying marks, recordkeeping, or background checks. In turn, these firearms are progressively finding their way to licensees who may wish to acquire them so they can advertise and market them broadly, or who may repair, customize, or accept them as security in pawn for a loan. Rulemaking is therefore necessary to ensure that PMFs are not unlawfully manufactured for sale to licensees who may wish to acquire them for resale, or accept them as security in pawn for a loan, as this would undermine the important public safety goals of the GCA to reduce violent crime, which includes assisting State and local law enforcement in their efforts to control the traffic of firearms within their borders.
37

Indeed, several States and municipalities have banned or severely restricted unserialized or 3D printed firearms.
38

37

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);
id.
at 922(t)(2),(4) (NICS background check denied if receipt of firearm by transferee would violate State law);
id.
at 923(d)(1)(F) (requiring license applicants to certify compliance with the requirements of State and local law applicable to the conduct of business).

38

See
Cal. Pen. Code. section 29180 (prohibiting ownership of firearms that do not bear a serial number or other mark of identification provided by the State); Conn. Gen. Stat. section 29-36a(a) (prohibiting manufacture of firearms without permanently affixing serial numbers issued by the State); DC Code section 7-2504.08(a) (prohibiting licensees from selling firearms without serial numbers); Haw. Rev. Stat. section 134-10.2 (prohibiting unlicensed persons from producing 3D printed or parts kit firearms without a serial number); Mass. Gen. Laws 269 section 11E (prohibiting manufacture or delivery of unserialized firearms to licensed dealer); N.J. Stat. Ann. section 2C:39-3(n) (prohibiting possession of firearms manufactured or assembled without serial number); N.Y. Penal Law sections 265.50, 265.55 (prohibiting manufacture/possession of undetectable firearms); R.I. Gen. Laws section 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. section 18.2-308.5 (prohibiting possession of undetectable firearms); Wash. Rev. Code section 9.41.190 (prohibiting the manufacture with intent to sell of undetectable and untraceable firearms);
see also Philadelphia Becomes First City To Ban 3D-Printed Gun Manufacturing,

Reason.com
(Nov. 22, 2013),
https://reason.com/2013/11/22/philadelphia-becomes-first-city-to-ban-3/; County Council Unanimously Approves Ghost Gun Bill
, Mocoshow.com (April 6, 2021), https://mocoshow.com/blog/county-council-unanimously-approves-ghost-gun-bill/?fbclid=IwAR1KCyFal3AId31WKCTLanR-uEUj_-dW_T32lND5gfKmle_-nvIbZyT052.

II. Proposed Rule

Due to judicial developments as well as continued technological advancements in firearms manufacturing, maintaining the current definitions negatively affects both public safety and the regulated firearms industry. For these reasons, the Department proposes amending ATF's regulations to clarify the definition of “firearm” and to provide a more comprehensive definition of “frame or receiver” so that those definitions more accurately reflect firearm configurations not explicitly captured under the existing definitions in 27 CFR 478.11 and 479.11. Further, this NPRM proposes new terms and definitions to take into account technological developments and modern terminology in the firearms industry, as well as amendments to the marking and recordkeeping requirements that would be necessary to implement these definitions. However, nothing in this rule would restrict persons not otherwise prohibited from possessing firearms from making their own firearms at home without markings solely for personal use (not for sale or distribution) in accordance with Federal, State, and local law. Also, while licensed manufacturers who sell or distribute firearms to law enforcement agencies would be subject to this rule, law enforcement agencies (not engaged in the business of manufacturing firearms for sale or distribution) would be excluded from this rule, including associated amendments to the marking and recordkeeping requirements necessary to implement its definitions.

A. Definition of “Firearm”

Under the GCA and implementing regulations, the term “firearm” includes:

“(A) any weapon (including a starter gun) which
will or is designed to
or
may readily be converted
to expel a projectile by the action of an explosive.” 18 U.S.C. 921(a)(3); 27 CFR 478.11 (emphasis added). Although weapon parts kits in their unassembled, incomplete, and/or unfinished state or configuration generally will not expel a projectile by the action of an explosive at the time of sale or distribution, weapon parts kits that are “designed to”
39

or “may readily be converted”
40

to expel a projectile by the action of an explosive are “firearms” under the GCA.
41

39

See
H.R. Rep. 90-1577, at 4416 (June 21, 1968) (“This provision makes it clear that so-called unserviceable firearms come within the definition.”); S. Rep. No. 90-1097, at 2200 (April 29, 1968) (same). 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 (8th Cir. 2017) (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 (7th Cir. 2013) (damaged pistol with corroded, missing and broken components);
United States
v.
Rivera,
415 F.3d 284, 285-87 (2nd Cir. 2005) (pistol with a broken firing pin and flattened firing-pin channel);
United States.
v.
Brown,
117 F.3d 353 (7th Cir. 1997) (no firing pin);
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) (pistol with broken firing pin);
United States
v.
Yannott,
42 F.3d 999, 1005 (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).
But see 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).

40

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 section 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, 1073 n.2 (9th Cir. 2006) (upholding district court's finding that .50 caliber rifle kits with incomplete receivers were “firearms” under 921(a)(3)(A) because they could easily be converted to expel a projectile);
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).

41
The plain language of the definition of “firearm” in 18 U.S.C. 921(a)(3)(A) states that a weapon need not function so long as it is designed to, or may readily be converted to, expel a projectile. Even though they generally cannot function to expel a projectile when sold, weapon parts kits are still “weapons”—real combat instruments, such as pistols, revolvers, rifles, or shotguns—in an unassembled, unfinished, and/or incomplete state or configuration. There is no minimum utility or lethality requirement in the GCA or NFA for an item to be considered a “weapon.”
Cf. United States
v.
Thompson/Center Arms,
504 U.S. 505, 513, n.6 (1992) (a rifle was “made” under the NFA when a pistol was packaged together with a disassembled rifle parts kit);
United States
v.
Hunter,
843 F. Supp. 235, 256 (E.D. Mich. 1994) (“If Defendants believe that machinegun conversion kits are not in and of themselves `weapons' under § 921(a)(3), they forget that that section clearly envisions machineguns as weapons.”);
United States
v.
Drasen,
845 F.2d 731, 736-37 (7th Cir. 1988) (rejecting argument that a collection of rifle parts cannot be a “weapon”).

In recent years, individuals have been purchasing firearm parts kits with incomplete frames or receivers, commonly called “80% receivers,”
42

either directly from manufacturers of the kits or retailers, without background checks or recordkeeping. Some of these parts kits contain most or all of the components (finished or unfinished) necessary to complete a functional weapon within a short period of time. Some of them include jigs, templates, instructions, drill bits, and tools that allow the purchaser to complete the weapon to a functional state with minimal effort, expertise, or equipment. Weapon parts kits such as these are “firearms” under the GCA because they are
designed to
or
may readily be converted
to expel a projectile by the action of an explosive.
43

Manufacturers of such parts kits must be licensed, abide by the marking and recordkeeping requirements, and pay Federal Firearms Excise Tax on their sales price.
44

Any Federal firearms licensee that sells such kits to unlicensed individuals would need to complete ATF Forms 4473, conduct NICS background checks, and abide by the recordkeeping requirements applicable to fully completed and assembled firearms.
45

Therefore, to reflect existing case law, this proposed rule would add a sentence at the end of the definition of “firearm” in 27 CFR 478.11 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.”

42
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 in 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.

43

See
footnotes 39 and 40,
supra.

44
The Internal Revenue Code of 1954, 26 U.S.C. 4181, imposes on the manufacturer, producer, or importer an excise tax of 10% (pistols and revolver) or 11% (other firearms) on the sales price of firearms manufactured, produced, or imported, including complete, but unfinished, weapon parts kits.
See
Rev. Rul. 62-169 (IRS RRU), 1962-2 C.B. 245 (kits which contain all of the necessary component parts for the assembly of shotguns are complete firearms in knockdown condition even though, in assembling the shotguns the purchaser must `final-shape,' sand, and finish the fore-arm and the stock);
cf.
Rev. Rul. 61-189 (IRS RRU), 1961-2 C.B. 185 (kits containing unassembled components and tools to complete artificial flies for fisherman were sporting goods subject to excise tax);
Hine
v.
United States,
113 F. Supp. 340, 343 (Ct. Cl. 1953) (“True enough, [these fishing rod kits] might be called `blanks' by those engaged in the trade, but what could they be called or to what practical use could they be put other than `fishing rods?' Plaintiff says that it would be extremely difficult if not impossible to case with a `blank' rod and this is true, but we can conceive of no other practical use for them except as fishing rods. . . . Having reached the stage of manufacture or development where they became recognizable as one of the sporting goods described in Section 3406(a)(1) the rods upon being sold were subject to tax even though there remained one or more finishing operations to be performed.”) (citations omitted).

45
Additionally, persons who engage in the business of selling or distributing such weapon parts kits cannot avoid licensing, marking, recordkeeping, or excise taxation by selling or shipping the parts in more than one box or shipment to the same person, or by conspiring with another person to do so.
See, e.g., United States
v.
Evans,
928 F.2d 858 (9th Cir. 1991) (conspiracy to cause and aid and abet the possession of unregistered machineguns where one defendant sold parts kits containing all component parts of Sten machineguns except receiver tubes, and the other sold customers blank receiver tubes along with detailed instructions on how to complete them); Internal Revenue Service Technical Advice Memorandum 8709002, 1986 WL 372494, at 4 (Nov. 13, 1986) (for purposes of imposing Firearms Excise Tax it is irrelevant whether the components of a revolver in an unassembled knockdown condition are sold separately to the same purchaser in various related transactions, rather than sold as a complete kit in a single transaction).

Nonetheless, this amendment is not intended to affect the classification of a weapon, including a weapon parts kit, in which each frame or receiver (as defined in this proposed rule) of such weapon is properly destroyed in accordance with ATF standards. Because such weapons have been completely destroyed or permanently redesigned not to expel a projectile by the action of an explosive, and cannot readily be converted to do so, ATF would not consider them as either “designed to” or “readily assembled, completed, converted, or restored to expel a projectile by the action of an explosive.” To make this clear, this proposed rule would add another sentence to the end of the definition of “firearm” in 27 CFR 478.11 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.” (see Section II.B.5 of the preamble)

B. Definition of “Frame or Receiver”

The proposed new regulatory definition of “frame or receiver” would be a multi-part definition added to 27

CFR 478.11 and 479.11 (referencing section 478.11). First, there would be a general definition of “frame or receiver” with non-exclusive examples that illustrate the definition. This would be followed by supplements that further explain the meaning of the term “frame or receiver” for certain firearm designs and configurations, as follows: (a) Firearm muffler or silencer frame or receiver; (b) split or modular frame or receiver, also followed by examples of the frames or receivers for common firearm designs that are distinguishable because of differences in firing cycle, method of operation, or physical design characteristics; (c) partially complete, disassembled, or inoperable frame or receiver; and (d) destroyed frame or receiver. Although the new definition would more broadly define the term “frame or receiver” than the current definition, it is not intended to alter any prior determinations by ATF of what it considers the frame or receiver of a particular split/modular weapon. ATF would also continue to consider the same factors when classifying firearms (see Section I.A of the preamble).

1. General Definition of “Frame or Receiver”

ATF proposes to replace the respective regulatory definitions of “firearm frame or receiver” and “frame or receiver” in 27 CFR 478.11 and 479.11 because they too narrowly limit the definition of receiver with respect to most current firearms and have led to erroneous district court decisions. Indeed, most firearms currently in circulation in the United States do not have a specific part that expressly falls within the current “frame or receiver” regulatory definitions. Most concerning is that the interpretation of these definitions by some courts, relying on the current regulations, would make it easier to obtain the majority of existing firearms, including some of the most advanced semiautomatic weapons, without complying with the requirements of the GCA, and make it far more difficult to trace those firearms after a crime. Should the current definition remain in place and courts continue to interpret it such that no part or parts of most firearms are defined as the frame or receiver, these unserialized parts, easily purchased and assembled to create functioning firearms, would be untraceable, thereby putting the public at risk. While a “frame or receiver” is clearly within the statutory definition of what constitutes a “firearm” under the GCA, 18 U.S.C. 921(a)(3)(B), clarifying that this term includes how most modern-day firearms operate would help ensure that the regulatory definition of “frame or receiver” will not be misinterpreted by the courts, the firearms industry, or the public at large to mean that most firearms in circulation have no part identifiable as a frame or receiver.

As a threshold matter, the new definition makes clear that a “frame or receiver” must be visible to the exterior when the complete weapon is assembled so that licensees can quickly record the identifying markings, and law enforcement officers who recover the weapon can easily see the identifying markings for tracing purposes. Nonetheless, as explained in Section II.B.3 of the preamble, an internal frame or chassis at least partially exposed to the exterior to allow identification may be determined by ATF to be the frame or receiver of a split or modular frame or receiver.

Next, the new definition more broadly describes a “frame or receiver” as one that provides housing or a structure designed to hold or integrate any fire control component. Unlike the prior definitions of “frame or receiver” that were rigidly tied to three specific fire control components (
i.e.,
those necessary for the firearm to initiate or complete the firing sequence), the new regulatory definition is intended to be general enough to encompass changes in technology and parts terminology. With respect to the fire control components housed by the frame or receiver, the definition would include, 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 definition is not limited to those particular fire control components.
46

There may be future changes in firearms technology or terminology resulting in housings or holding structures for new or different components that initiate, complete, or continue the firing sequence of weapons that expel a projectile by the action of an explosive. For further clarity, the definition would then give four nonexclusive examples with illustrations of common single-framed firearms: (1) Hinged or single frame revolver (structure to hold the trigger, hammer, and cylinder); (2) bolt-action rifle (structure to hold the bolt and firing pin, and attach the trigger mechanism); (3) break action, lever action, or pump action rifle or shotgun (housing for the bolt and firing pin, or a structure designed to integrate the breechblock); and (4) semiautomatic firearm or machinegun with a single receiver housing all fire control components (housing for the hammer, bolt, trigger mechanism, and firing pin,
e.g.,
AK-type firearms).

46
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.

Finally, the definition would make clear to persons who may acquire or possess a part now defined as a “frame or receiver” that is identified with a serial number that they 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.

2. Firearm Muffler or Silencer Frame or Receiver

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);
id.
at 5845(a)(7). Because under the NFA each individual part of a firearm muffler or silencer is a “firearm”
47

that must be registered in the National Firearms Registration and Transfer Record (“NFRTR”), the regulations currently assume that every part defined as a silencer must be marked in order to be registered, and expressly require that they be marked whenever sold, shipped, or otherwise disposed even though they may be installed by a qualified licensee within a complete muffler or silencer device.
48

47
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;
id.
at 479.11. This rule defines the term “complete muffler or silencer device” not to say that individual silencer parts are not considered a 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 or fabricating a muffler or silencer device.

48

See
27 CFR 479.101(b); 478.92(a)(4)(iii); 479.102(f)(1).

However, this result has caused confusion and concern among many silencer manufacturers because some silencer parts defined as “silencers,” such as baffles, are difficult to mark, and make little sense to mark for tracing purposes when the outer tube or

housing of the complete device is marked and registered. Not only is it difficult for manufacturers to apply identifying markings, there is also the administrative difficulty in timely filing and processing numerous ATF Forms 2, Notice of Firearms Manufactured or Imported upon manufacture of each part, and ATF Forms 3, Application for Tax-Exempt Transfer of Firearm and Registration to Special Occupational Taxpayer upon sale or other disposition of each part to another qualified licensee.

For these reasons, ATF is proposing a number of amendments to clarify how and when firearm muffler or silencer parts must be marked and registered in the NFRTR. Among other changes (see Section II.H.9 of the preamble, below), this rule defines the term “frame or receiver” as it applies to a “firearm muffler or silencer frame or receiver” and adds the term “complete muffler or silencer device” (see Section II.D of the preamble). Under the NPRM, the term “frame or receiver” means, “in the case of a firearm muffler or firearm silencer, a part of the firearm that, when the complete device is assembled, is visible from the exterior and provides housing or a structure, such as an outer tube or modular piece, designed to hold or integrate one or more essential internal components of the device, including any of the following: baffles, baffling material, or expansion chamber.” These new definitions would clarify for manufacturers and makers of complete muffler or silencer devices that they need only mark each part (or specific part(s) previously determined by the Director) of the device defined as a “frame or receiver” under this rule. However, individual muffler or silencer parts must be marked if they are disposed of separately from a complete device unless transferred by qualified manufacturers to other qualified licensees for the manufacture or repair of complete devices (see Section II.H.9 of the preamble).
49

49
This rule is consistent with ATF enforcement policy.
See
footnote 72
infra.

ATF anticipates that, under this supplemental definition, the outer tube of a complete muffler or silencer device would be considered the frame or receiver with respect to most commercial silencer designs currently on the market. This is because the outer tube would be the only housing for essential internal components (
e.g.,
baffles or baffling material) of the complete device. Marking the outer tube, as distinguished from a smaller non-housing component like an end cap that can be damaged upon expulsion of projectiles, best preserves the ability of law enforcement to trace the silencer device if used in crime, and is consistent with recommendations ATF has received from the firearms industry.
50

50
In 2016, ATF issued an Advance Notice of Proposed Rulemaking in response to a petition for rulemaking from a firearms industry trade association recommending that regulations be amended to require that a silencer be marked on the outer tube (as opposed to other locations), unless a variance is granted by the Director on a case-by-case basis for good cause.
See
81 FR 26764 (May 4, 2016).

Nonetheless, like the definition of “frame or receiver” for projectile weapons, this sub-definition would be flexible enough to encompass changes in technology and parts terminology. This is because any housing or structure designed to hold or integrate an essential internal component of the muffler or silencer device would meet the definition. While the proposed definition gives examples of internal components that manufacturers must consider as essential,
e.g.,
baffles, baffling material, or expansion chamber, it is not limited to those particular components.
51

51

See
footnote 46,
supra.

3. Split or Modular Frame or Receiver

This second supplement explains that ATF may determine “in the case of a firearm with more than one part that provides housing or a structure designed to hold or integrate one or more fire control or essential components” whether one or more specific part(s) of a weapon is the frame or receiver, which may include an internal frame or chassis at least partially exposed to the exterior to allow identification. It then sets forth the factors ATF considers in making this determination: “(a) Which component the manufacturer intended to be the frame or receiver; (b) which component the firearms industry commonly considers to be the frame or receiver with respect to the same or similar firearms; (c) how the component fits within the overall design of the firearm when assembled; (d) the design and function of the fire control components to be housed or integrated; (e) whether the component may permanently, conspicuously, and legibly be identified with a serial number and other markings in a manner not susceptible of being readily obliterated, altered, or removed; (f) whether classifying the particular component is consistent with the legislative intent of the Act and this part; and (g) whether classifying the component as the frame or receiver is consistent with the Director's prior classifications.” No single factor is controlling. It would further make clear 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.”

This supplement to the general definition addresses one of the core problems of the current definition of “firearm frame or receiver;” namely, that a majority of firearms now use a split or modular design in which more than one part houses a different fire control component and/or incorporates a striker instead of a hammer. It would make clear 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. For this reason, manufacturers may wish to submit samples to ATF for classification of one or more particular components as the frame or receiver so that they need only mark a specific part or parts of a weapon, rather than all qualifying parts (see Section II.H.10 of the preamble) or obtain a marking variance (see Section II.H.6 of the preamble). However, this supplemental definition would also make clear that ATF would not classify an internal frame or chassis as a “frame or receiver” unless it is at least partially exposed to the exterior to allow identification so that licensees accepting them into inventory can quickly record the identifying markings, and law enforcement officers who recover the weapon can easily see the identifying markings for tracing purposes.
52

52
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 (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.”).

One important goal of this rule is to ensure that it does not affect existing ATF classifications of firearms that specify a single component as the frame or receiver. Application of the rule, as proposed, would not alter these prior

ATF classifications. To provide more clarity, this supplement to the definition would include a nonexclusive list of common weapons with a split/multi-piece frame or receiver configuration for which ATF has previously determined a specific part to be the frame or receiver. If a manufacturer produces or an importer imports a firearm falling within one of these designs as they exist as of the date of publication of a final rule, it can refer to this list to know which part is the frame or receiver. The manufacturer or importer can then mark without needing to ask ATF for a classification. The nonexclusive list identifies the frame or receiver for the following firearms: (i) Colt 1911-type, Beretta/Browning/FN Herstal/Heckler & Koch/Ruger/Sig Sauer/Smith & Wesson/Taurus hammer fired semiautomatic pistols; (ii) Glock-type striker fired semiautomatic pistols; (iii) Sig Sauer P320-type semiautomatic pistols; (iv) certain locking block rail system semiautomatic pistols; (v) AR-15-type and Beretta AR-70-type firearms; (vi) Steyr AUG-type firearms; (vii) Thompson M1A1-type machineguns and semiautomatic variants, and L1A1, FN FAL, FN FNC, MP 38, MP 40, and SIG 550 type firearms, and HK-type machineguns and semiautomatic variants; (viii) Vickers/Maxim, Browning 1919, and M2-type machineguns, and box-type machineguns and semiautomatic variants thereof; and (ix) Sten, Sterling, and Kel-tec Sub-2000-type firearms. However, if there is a present or future split or modular design for a firearm that is not comparable to an existing classification, then the definition of “frame or receiver” would advise that more than one part is the frame or receiver subject to marking and other requirements, unless a specific classification or marking variance is obtained from ATF, as described above.

4. Partially Complete, Disassembled, or Inoperable Frame or Receiver

This third supplement would define “frame or receiver” to include “in the case of a frame or receiver that is partially complete, disassembled, or inoperable, 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.” To determine this status, “the Director may consider any available instructions, guides, templates, jigs, equipment, tools, or marketing materials.” For clarification, “partially complete” for purposes of this definition “means a forging, casting, printing, extrusion, machined body, or similar article that has reached a stage in manufacture where it is clearly identifiable as an unfinished component part of a weapon.”

This supplement addresses another core challenge of the existing, definition of firearm “frame or receiver;” namely, that it does not address the question when an object becomes a frame or receiver. While the GCA and implementing regulations define a “firearm” to include the “frame or receiver,” neither delineates when a frame or receiver is created. The crucial inquiry, then, is the point at which an unregulated piece of metal, plastic, or other material becomes a regulated item under Federal law. ATF has long held that a piece of metal, plastic, or other material becomes a frame or receiver when it has reached a critical stage of manufacture. This is the point at which a substantial step has been taken, or a critical line crossed, so that the item in question may be so classified under the law. This “critical stage of manufacture” is when the article becomes sufficiently complete to function as a frame or receiver, or may readily be completed, assembled, converted, or restored to accept the parts it is intended to house or hold.
53

53
ATF Letter to Private Counsel #907010 (Mar. 20, 2015).

Clarifying this issue is needed to deter the increased sale or distribution of unlicensed and unregulated partially complete or unassembled frames or receivers often sold within parts kits that can readily be completed or assembled to a functional state.
54

Many kits that include unfinished frame or receivers have been sold by nonlicensees who were not required to run a background check or maintain transaction records. Accordingly, prohibited persons have easily obtained them.
55

Moreover, without any markings, they are nearly impossible to trace. Although this addition is intended to capture when an item becomes a frame or receiver that is regulated irrespective of the type of technology used to complete the assembly, frame or receiver molds that can accept metal or polymer, unformed blocks of metal, and other articles only in a primordial state would not—without more—be considered a “partially complete” frame or receiver. However, when a frame or receiver is broken or has been disassembled into pieces that can readily be made into a frame or receiver, or is a partially complete frame or receiver forging, casting, or additive printing
56

that has reached a stage in manufacture where it can readily be made into a functional frame or receiver, that article would be a “frame or receiver” under the GCA.

54
The Polymer 80 assembly, for example, may be completed in under thirty minutes.
See, e.g., Silverback Reviews, Polymer 80 Lower Completion/Parts Kit Install,
YouTube (Aug. 19, 2019),
https://www.youtube.com/watch?v=ThzFOIYZgIg
(21-minute video of completion of a Polymer 80 lower parts kit with no slide). Indeed, the internet is replete with people with no experience completing these firearms.
See
HandleBandle,
DIY: How to Build a Gun at Home (That Shoots) Part 1,
YouTube (Oct. 7, 2018),
https://www.youtube.com/watch?v=nO-8Pns9aq4;
HandleBandle,
Polymer 80 with No Experience Tips (Build Part 2),
YouTube (Oct. 7, 2018),
https://www.youtube.com/watch?v=a0JM5v45vsg;
HandleBandle, Legally Building a Gun in My Living Room (5D Tactical Glock Kit), YouTube (Oct. 18, 2018),
https://www.youtube.com/watch?v=5SaNLrhnnuA.

55

See Bridgeport Felon Sentenced to More Than 5 Years in Federal Prison for Possessing Firearms,
Justice.gov (Jan. 7, 2021),
https://www.justice.gov/usao-ct/pr/bridgeport-felon-sentenced-more-5-years-federal-prison-possessing-firearms; Winthrop man had homemade `ghost' guns and 3,000 rounds of ammunition, prosecutors say,

Boston.com
(Aug. 5, 2020),
https://www.boston.com/news/crime/2020/08/05/winthrop-man-had-homemade-ghost-guns-prosecutors-say; `Ghost Gun' used in shooting that killed two outside Snyder County restaurant,
Penn Live (Jul. 14, 2020),
https://www.pennlive.com/crime/2020/07/ghost-gun-used-in-shooting-that-killed-two-outside-snyder-county-restaurant.html; The gunman in the Saugus High School shooting used a `ghost gun,'
sheriff says, CNN (Nov. 21, 2019),
https://www.cnn.com/2019/11/21/us/saugus-shooting-ghost-gun/index.html; How the felon killed at Walmart got his handgun, DA says,

LehighValleyLive.com
(March 28, 2018),
https://www.lehighvalleylive.com/news/2018/05/how_the_felon_killed_at_walmar.html; `Ghost guns': Loophole allows felons to legally buy gun parts
online,
KIRO7.com
,
https://www.kiro7.com/news/local/ghost-guns-federal-loophole-allows-felons-to-legally-buy-gun-parts-online-build-assault-weapons/703695149/.

56
ATF does not believe the production of 3D printed frames or receivers is substantial at this time when compared with commercially produced firearms. For the most part, individuals currently make PMFs from parts kits produced commercially, not by using 3D printers. However, the cost, capabilities, and availability of 3D printers are quickly improving.

5. Destroyed Frame or Receiver

This fourth supplement would exclude from the definition of “frame or receiver” any frame or receiver that is destroyed. The supplement describes what it means to be a “destroyed” frame or receiver: 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. This new definition then would set forth nonexclusive acceptable methods of destruction, which have been provided by ATF in past guidance.
57

57

See How to Properly Destroy Firearms, ATF.gov, https://www.atf.gov/firearms/how-properly-destroy-firearms;
ATF Rul. 2003-1 (destruction of Browning M1919 type receivers); ATF Rul.2003-2 (FN FAL type receivers); ATF Rul. 2003-3 (H&K G3 type receivers); ATF Rul. 2003-4 (Sten type receivers).

C. Definition of “Readily”

To provide guidance on how the term “readily” is used to classify firearms, including frame or receiver parts kits or weapon parts kits sold with incomplete or unassembled frames or receivers, the NPRM adds this term to 27 CFR 478.11 and 479.11 and defined as “a process that is fairly or reasonably efficient, quick, and easy, but not necessarily the most efficient, speedy, or easy process.” It would further list factors relevant in making this determining to include: (a) Time,
i.e.,
how long it takes to finish the process; (b) ease,
i.e.,
how difficult it is to do so; (c) expertise,
i.e.,
what knowledge and skills are required; (d) equipment,
i.e.,
what tools are required; (e) availability,
i.e.,
whether additional parts are required, and how easily they can be obtained; (f) expense,
i.e.,
how much it costs; (g) scope,
i.e.,
the extent to which the subject of the process must be changed to finish it; and (h) feasibility,
i.e.,
whether the process would damage or destroy the subject of the process, or cause it to malfunction. This definition and factors considered in determining whether a weapon, including a weapon parts kit, or unfinished or damaged frame or receiver may readily be assembled, completed, converted, or restored to function are based on case law interpreting the terms “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).
58

Thus, defining the term “readily” is necessary to provide further clarity in determining when incomplete weapons or configurations of parts become a “firearm” regulated under the GCA and NFA.

58

See 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);
United States
v.
TRW Rifle 7.62x51mm Caliber,
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.
Mullins,
446 F.3d 750, 756 (8th Cir. 2006) (a 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.
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.
16,179 Molso Italian .22 Caliber Winler 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);
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);
compare with 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).

D. Definitions of “Complete Weapon” and “Complete Muffler or Silencer Device”

This proposed rule would add definitions for “complete weapon” and “complete muffler or silencer device” to 27 CFR 478.11 and 479.11. A “complete weapon” would be defined as “a firearm other than a firearm muffler or firearm silencer that contains all component parts necessary to function as designed whether or not assembled or operable.” Likewise, a “complete muffler or silencer device” would be defined as “a firearm muffler or firearm silencer that contains all of the component parts necessary to function as designed whether or not assembled or operable.” These definitions are needed to explain when a frame or receiver of a firearm, including a firearm muffler or silencer, as the case may be, must be marked.

E. Definition of “Privately Made Firearm”

The NPRM proposes adding a definition of “privately made firearm” to 27 CFR 478.11 to mean “[a] firearm, including a frame or receiver, assembled or otherwise produced by a person other than a licensed manufacturer, and without a serial number or other identifying markings placed by a licensed manufacturer at the time the firearm was produced.” The term would not include a firearm identified and registered in the NFRTR pursuant to chapter 53, title 26, United States Code, or any firearm made before October 22, 1968 (unless remanufactured after that date). This proposed definition explains that PMFs are those firearms that were made by nonlicensees without the markings required by this part, and excludes those already marked and registered in the NFRTR, and any firearm made before enactment of the GCA which, unlike the repealed law it replaced, required all firearms to be marked under federal law.
59

The term “made” is incorporated within the term “privately made firearm” rather than “manufacture” to distinguish between firearms manufactured (or “made”) by private individuals without a license and those manufactured by persons licensed to engage in the business of manufacturing firearms.
60

59
The Federal Firearms Act of 1938 (repealed), the predecessor to the GCA, made it unlawful for a person to receive a firearm that had the manufacturer's serial number removed, obliterated or altered. 15 U.S.C. 902(i). 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 (rescinded).

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Both the GCA and NFA define the term “manufacturer” as any person “engaged in the business of manufacturing firearms,” and the GCA further defines the term “licensed manufacturer” as “any such person licensed under the provisions of this chapter.” 18 U.S.C. 921(a)(10); 26 U.S.C. 5845(m). The NFA further defines the term “make,” and the various derivatives of that word, to include “manufacturing (other than by one qualified to engage in the business under this chapter), putting together, altering, any combination of these, or otherwise producing a firearm.” 26 U.S.C. 5845(i).

F. Definition of “Importer's or Manufacturer's Serial Number”

The proposed rule would define the term “importer's or manufacturer's serial number” in 27 CFR 478.11 as: “[t]he identification number, licensee name, licensee city or state, or license number placed by a licensee on a firearm frame or receiver in accordance with this part. The term shall include any such identification on a privately made firearm, or an ATF issued serial number.” Because “privately made firearms” are manufactured by someone other than a licensed manufacturer, the serial number that incorporates the abbreviated Federal firearms license (“FFL”) number placed by a licensee on a PMF under this rule is the “importer's or manufacturer's serial number.” This definition would help ensure that the serial numbers and other markings necessary to ensure tracing, including those placed by a licensee on a “privately made firearm” or marked with an ATF-issued serial number,
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to include imported firearms, are considered the “importer's or manufacturer's serial number” protected by 18 U.S.C. 922(k), which prohibits their removal, obliteration, or alteration.
62

61
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.

62
In addition to Federal law, 18 U.S.C. 922(k) and 26 U.S.C. 5861(g), (h), (i), almost every state prohibits the removal, alteration, or obliteration of a firearm's serial number or possession of a firearm with a serial number that has been removed,

altered, or obliterated.
See
Ala. Code section 13A-11-64; Alaska Stat. section 11.61.200; Ariz. Rev. Stat. section 13-3102; Ark. Code section 5-73-107; Cal. Penal Code section 23900; Colo. Rev. Stat. section 18-12-103; Conn. Gen. Stat. section 29-36; Del. Code tit. 11 section 1459; Fla. Stat. Ann. section 790.27; Ga. Code. Ann. section 16-9-70; Haw. Rev. Stat. section 134-10; Idaho Code Ann. section 18-2410; 720 Ill. Comp. Stat. section 5/24-5; Ind. Code section 35-47-2-18; Kan. Stat. Ann. section 21-6306; Ky. Rev. Stat. section 527.050; La. Stat. Ann. section 40:1788; Me. Stat. tit. 17-A section 705(E); Md. Code Pub. Safety section 5-142; Mass. Gen. Laws 269 section 11C; Mich. Comp. Laws section 750.230; Minnesota Stat. section 609.667; Mo. Rev. Stat. section 571.050; Mont. Code Ann. section 45-6-326; Neb. Rev. Stat. sections 28-1207, 28-1208; Nev. Rev. Stat. section 202.277; N.H. Rev. Stat. Ann. section 637:7-a; N.J. Stat. Ann. section 2C:39-3(d); N.Y. Penal Law section 265.02(3); N.C. Gen. Stat. section 14-160.2; N.D. Cent. Code section 62.1-03-05; Ohio Rev. Code section 2923.201; Okla. Stat. tit. 21 section 1550(B); Or. Rev. Stat. section 166.450; 18 Pa. Cons. Stat. sections 6110.2, 6117; R.I. Gen. Laws section 11-47-24; S.C. Code. Ann. section 16-23-30(C) (handguns); S.D. Codified Laws 22-14-5; Tenn. Code Ann. section 39-14-134; Tex. Penal Code section 31.11; Utah Code section 76-10-521 (handguns); Va. Code Ann. section 18.2-311.1; Wash. Rev. Code section 9.41.140; W. Va. Code section 18.2-311.1; Wis. Stat. section 943.37(3).

G. Definition of “Gunsmith”
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The term “gunsmith” is not used in the GCA; however, the Firearm Owners' Protection Act, Public Law 99-308, 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);
id.
at (a)(21)(D); 132 Cong. Rec. 9603-04 (May 6, 1986) (statement of Sen. McClure).

To provide greater access to professional marking, this proposed rule would clarify that the meaning of the term “gunsmith” includes persons who engage in the business of identifying firearms for nonlicensees so that gunsmiths may become licensed as dealer-gunsmiths solely to provide professional PMF marking services. Specifically, this proposed rule would amend the definition of “engaged in the business” as it applies to a “gunsmith” in 27 CFR 478.11 to clarify the meaning of that term as someone “who, as a service performed on existing firearms not for sale or distribution by a licensee, devotes time, attention, and labor to repairing or customizing firearms, making or fitting special barrels, stocks, or trigger mechanisms to firearms, or identifying firearms in accordance with this chapter, as a regular course of trade or business with the principal objective of livelihood or profit, but such term shall not include a person who occasionally repairs or customizes firearms, or occasionally makes or fits special barrels, stocks, or trigger mechanisms to firearms.”

This amendment would make clear that businesses that 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, may be licensed as dealer-gunsmiths rather than as manufacturers.
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Under this rule, PMFs would first need to be recorded by the dealer-gunsmith as an acquisition in the licensee's A&D Records upon receipt from the private owner (whether or not the licensee keeps the PMF overnight), and once marked, the licensee would update the acquisition entry with the identifying information, and then record its return as a disposition to the private owner. This would ensure that the PMF, if ever found by police at a crime scene, can be traced. However, no ATF Form 4473 or NICS background check would be required upon return of the marked firearm to the person from whom it was received, pursuant to 27 CFR 478.124(a).

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By clarifying the definition of gunsmith to mean a service routinely performed on existing firearms that are not for sale or distribution by a licensee, this rule would supersede ATF Ruling 2010-10, which allows gunsmiths under specified conditions to engage in certain manufacturing activities for licensed manufacturers. This would 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).

H. Marking Requirements for Firearms

1. Information Required To Be Marked on the Frame(s) or Receiver(s)

To properly implement the new definitions, this proposed rule would 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 be more than one part of a complete weapon, or complete muffler or silencer device, that is the frame or receiver (
i.e.,
when ATF has not identified specific part(s) as the frame or receiver). After publication of a final rule, each frame or receiver of a new firearm design or configuration manufactured or imported after the date of publication of the final rule would need 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 must be the same number, but must not duplicate any serial number(s) placed by the licensee on any other firearm.

The additional information required to be marked on each frame or receiver (
i.e.,
name, city and state, or name and abbreviated serial number) would only apply to new designs or configurations of firearms manufactured or imported after publication of the rule. Licensed manufacturers and importers may continue to identify the additional information on firearms (other than PMFs) of the same design and configuration as they existed before [effective date of the rule] under the prior content rules, and any rules necessary to ensure such identification will remain effective for that purpose. This provision is intended to reduce production costs incurred by licensees.

Requiring Federal firearms licensees to mark in this manner on each part defined as a frame or receiver would make it possible for ATF to trace the firearm if the manufacturer's or importer's name, city, or state is marked on the slide or barrel, and the original components are later separated. At the same time, it would give an option for manufacturers and importers to avoid marking their city and state as currently required at §§ 478.92(a)(1)(ii)(D), (E) and 479.102(a)(1)(iv) and (v), or obtain a marking variance from this requirement, by allowing them to mark their abbreviated license number as a prefix to the serial number as an alternative because this information can be obtained by looking up the licensee's information. Except for silencer parts transferred by manufacturers to other qualified manufacturers and dealers for completion or repair of devices (see Section II.H.9 of the preamble), there would be no change 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);
id.
at 5845(a), (b). However, for frames or receivers, and individual machinegun conversion or silencer parts defined as “firearms” that are disposed of separately, the model designation and caliber or gauge may be omitted if it is unknown at the time the part is identified.

2. Size and Depth of Markings

This proposed rule would not change the existing requirements for size and depth of markings in 27 CFR 478.92(a)(1) and 479.102(a), but for sake of clarity, consolidates them into a standalone paragraph along with the existing method of measuring the size and depth of markings set forth in 27 CFR 478.92(a)(5) and 479.102(b).

3. Period of Time To Identify Firearms

Neither the GCA nor the NFA explain at what point in the manufacturing process the required markings must be placed. In this regard, the proposed rule would make a distinction between the manufacture or making of a complete weapon or complete muffler or silencer device, and each part, including a replacement part, defined as a frame or receiver, machinegun, or firearm muffler or firearm silencer that is not a component part of a complete weapon or device at the time it is sold, shipped, or otherwise disposed. Complete weapons or complete muffler or silencer devices, as defined in this 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 (see Section II.H.9 of the preamble), 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 language would codify ATF Ruling 2012-1, and this ruling would become obsolete upon publication of the rule. As explained in that ruling, whether the end product is to become a complete weapon or device, or a frame or receiver to be disposed of separately, firearms that are actively awaiting materials, parts, or equipment repair to be completed are still considered to be actively in the manufacturing process.

4. Marking of Privately Made Firearms

Because privately made firearms do not have the identifying markings required of commercially manufactured firearms, this rule proposes to amend 27 CFR 478.92 to require FFLs to mark, or supervise the marking of, the same serial number on each frame or receiver (as defined in this rule) of a weapon that begins with the FFL's abbreviated license number (first three and last five digits) as a prefix followed by a hyphen on any “privately made firearm” (as defined) that the licensee acquired (
e.g.,
“12345678-[number]”). Unless previously identified by another licensee, PMFs acquired by licensees on or after the effective date of the rule would need 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.
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For PMFs acquired by licensees before the effective date of the rule, licensees would be required to mark or cause them to be marked by another licensee either within 60 days from that date, or before the date of final disposition (including to a personal collection), whichever is sooner. With respect to polymer firearms, including those that are produced using additive manufacturing (also known as “3D printing”), the method of marking would typically require the licensee to embed (or use pre-existing) metal serial number plates within the plastic to ensure they cannot be worn away during normal use.
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Incorporation of this metal plate along with other metal components would also help ensure that the polymer firearm does not violate the Undetectable Firearms Act, 18 U.S.C. 922(p), which prohibits the manufacture and possession of firearms that are not as detectable as the “Security Exemplar” that contains 3.7 ounces of material type 17-4 PH stainless steel.
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65
Under this rule, licensed collectors would only need to mark PMFs they receive or otherwise acquire that are defined as “curios or relics.”
See
27 CFR 478.11 (definitions of “firearm” and “curios or relics”).

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When the size and depth of markings regulations were first promulgated, ATF recognized that “all markings can be removed by someone who wishes to make a deliberate effort to remove the markings. Realistically, we need to be concerned about markings that could be worn away during normal use or markings that could survive normal refinishing processes,
e.g.,
blueing, plating, etc. . . . As such, ATF has required manufacturers and importers who use polymer plastic frames to mark serial numbers in a steel plate embedded within the plastic.” 66 FR 40599 (Aug. 3, 2001).

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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.”
See
26 U.S.C. 5845(e).

PMFs currently in inventory that a licensee chooses not to mark may also be destroyed or voluntarily turned in to law enforcement within the 60-day period. Also, this proposed rule would not require Federal firearms licensees to accept any PMFs, or to mark them themselves. Licensees would be able to refuse to accept PMFs, or arrange for private individuals to have them marked by another licensee before accepting them, provided they are properly marked in accordance with this proposed rule. To provide greater access to professional marking, as stated previously, this rule would clarify that the meaning of the term “gunsmith” includes persons who engage in the business of identifying firearms for nonlicensees so that gunsmiths may become licensed as dealer-gunsmiths solely to provide professional PMF marking services.

Consistent with the language and purpose of the GCA, this proposed provision is necessary to allow ATF to trace all firearms acquired and disposed of by licensees, prevent illicit firearms trafficking, and provide guidance to FFLs and the public with respect to PMF transactions with the licensed community. This provision is crucial in light of advances in technology that allow unlicensed persons easily 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 and will continue to make their way to the primary market in firearms throughout the licensed community.
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At the same time, consistent with the intent of the GCA,
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nothing in this rule would restrict persons not otherwise prohibited from possessing firearms from making their own firearms at home without markings solely for personal use (not for sale or distribution) in accordance with Federal, State, and local law.
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Persons should consult the laws and officials in their own States and localities to determine the lawfulness of PMFs.

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Under Federal law, for example, certain firearm transactions must be conducted through Federal firearms licensees.
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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See
Public Law 90-351, sec. 901(b), 82 Stat. 227.

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This rule is also consistent with the Second Amendment. As the Supreme Court stated in
District of Columbia
v.
Heller,
554 U.S. 570, 626-27 & n.26 (2008), “presumptively lawful regulatory measures” include those “imposing conditions and qualifications on the commercial sale of arms.”
See also United States
v.
Marzzarella,
614 F.3d 85, 99 (3d Cir. 2010) (concluding that even if strict scrutiny were to apply, 18 U.S.C. 922(k) (prohibiting possession of firearms with obliterated serial numbers) would be upheld under the Second Amendment because “serial number tracing serves a governmental interest in enabling law enforcement to gather vital information from recovered firearms. Because it assists law enforcement in this manner, we find its preservation is not only a substantial but a compelling interest.”).

5. Meaning of Marking Terms

An additional amendment to 27 CFR 478.92 and 478.102 would 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 with normal handling of the firearm and unobstructed by other markings when the complete weapon is assembled.” This would codify 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

This proposed rule would not alter the Director's ability to authorize other means of identification, or a “marking variance,” for any part defined as a firearm (including a machinegun or silencer) upon receipt of a letter application or an Application for Alternate Means of Identification of Firearms (Marking Variance), ATF Form 3311.4, showing that such other identification is reasonable and does not hinder the effective administration of the regulations. The amendment would also allow ATF to grant a variance from the period in which to mark firearms.

7. Destructive Device Period of Identification

Similar to other firearms, because the proposed rule would now specify the seven-day grace period in which to mark all completed firearms, including destructive devices, this rule would also allow ATF to grant a variance from this period. The marking requirements for destructive devices are otherwise unchanged.

8. Adoption of Identifying Markings

This rule proposes to authorize licensed manufacturers and importers to adopt an existing serial number, caliber/gauge, model, or other markings already identified on a firearm provided they legibly and conspicuously place, or cause to be placed, on each part (or part(s) previously determined by the Director) defined as a frame or receiver either: Their 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, which is the first three and last five digits followed by a hyphen, and then 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 would supersede ATF Ruling 2013-3 as it applies to licensed manufacturers and importers, but the ruling would remain effective for makers of NFA firearms. This change would help avoid 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 reimported.

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, and between qualified licensees 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 law enforcement benefit, this proposed rule would 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 is complete with the part, the manufacturer would be required to identify and register the device in the manner and within the period specified in this rule for a complete device. Likewise, the proposed rule would 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, this rule would amend the definition of “transfer” to clarify that the 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. This change would be consistent with the definition of “transfer” in 26 U.S.C. 5845(j) because a temporary conveyance for these purposes is not a sale or other disposition.
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These proposed rules are intended to reduce the practical and administrative problems of marking and registering silencer parts by the regulated industry, and avoid a potential resource burden on ATF to process numerous tax-exempt registration applications with little public safety benefit.
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The definition of “transfer” in the NFA only includes “selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of” a firearm.
See 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.”).

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These changes are consistent with ATF enforcement policy.
See NFA Handbook,
ATF E-Publication 5320.8 (April 2009), pp. 46, 60 sections 7.4.6; 9.5.1. 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 al

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2021-10058. Public record. Not legal advice.