Secure Gun Storage and Definition of “Antique Firearm”

DEPARTMENT OF JUSTICE

Bureau of Alcohol, Tobacco, Firearms, and Explosives

27 CFR Part 478

[Docket No. ATF 24P; AG Order No. 5304-2021]

RIN 1140-AA10

Secure Gun Storage and Definition of “Antique Firearm”

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

The Department of Justice is amending the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) to codify into regulation certain provisions of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999. This rule amends ATF's regulations to account for the existing statutory requirement that applicants for Federal firearms dealer licenses certify that secure gun storage or safety devices will be available at any place where firearms are sold under the license to nonlicensed individuals. This certification is already included in the Application for Federal Firearms License, ATF Form 7/7CR (“Form 7/7CR”). The regulation also requires applicants for manufacturer or importer licenses to complete the certification if the licensee will have premises where firearms are sold to nonlicensees. Moreover, the regulation requires that the secure gun storage or safety devices be compatible with the firearms offered for sale by the licensee. Finally, it conforms the regulatory definitions of certain terms to the statutory language, including the definition of “antique firearm,” which is amended to include certain modern muzzle loading firearms.

DATES:

This rule is effective February 3, 2022.

FOR FURTHER INFORMATION CONTACT:

Vivian Chu, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S. Department of Justice, 99 New York Avenue NE, Washington, DC 20226; telephone: (202) 648-7070.

SUPPLEMENTARY INFORMATION:

I. Background

On October 21, 1998, Public Law 105-277 (112 Stat. 2681), the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (“the Act”), was enacted. Among other things, the Act amended the Gun Control Act of 1968, Public Law 90-618 (82 Stat. 1213) (“GCA”) (codified as amended at 18 U.S.C. chapter 44). Some of the GCA amendments made by the Act are as follows:

1

1

The Child Safety Lock Act of 2005 (“CSLA”), enacted as part of the Protection of Lawful Commerce in Arms Act, Public Law 109-92 (119 Stat. 2095), amended the GCA by adding a new subsection, 18 U.S.C. 922(z). This subsection requires licensed importers, manufacturers, and dealers to provide secure gun storage or safety devices whenever they sell, deliver, or transfer any handgun to a nonlicensed person.

See

18 U.S.C. 922(z)(1). The CSLA was implemented primarily in a final rule issued shortly before the NPRM was issued for this rule.

See

Federal Firearms License Proceedings—Hearings, 81 FR 32,230 (May 23, 2016) (amending 27 CFR 478.73, which provides that a notice of suspension or revocation of a license, or the imposition of a civil penalty, may be issued whenever the ATF Director has reason to believe that any licensee has violated § 922(z)(1) by selling, delivering, or transferring any handgun to any person other than a licensee, unless the transferee was provided with a secure gun storage or safety device for that handgun). Although the requirements of the CSLA and the regulation at issue in this rulemaking are in some respects similar, the two requirements are distinct: The CSLA requires that licensed importers, manufacturers, and dealers actually provide a secure gun storage or safety device to any nonlicensee that receives a handgun, whereas the regulation at issue in this rulemaking applies more broadly to the sale of “firearms” (not just handguns) to nonlicensees, but requires only that secure gun storage or safety devices be made available (not actually provided).

(1) Secure Gun Storage.

The Act amended section 923(d)(1) of title 18, United States Code, to require that, with certain exceptions, applicants for Federal firearms dealer licenses certify the availability of secure gun storage or safety devices at any place where firearms are sold under the license to nonlicensees. 18 U.S.C. 923(d)(1)(G). The certification requirement does not apply where a secure gun storage or safety device is temporarily unavailable because of theft, casualty loss, consumer sales, backorders from a manufacturer, or any other similar reason beyond the control of the licensee.

Id.

In addition, the Act amended 18 U.S.C. 923(e) to provide that the Attorney General may revoke, after notice and opportunity for hearing, the license of any Federal firearms licensee that fails to have secure gun storage or safety devices available at any place where firearms are sold under the license to nonlicensees, subject to the same exceptions noted above.

The Act defined the term “secure gun storage or safety device” in 18 U.S.C. 921(a)(34) to mean: (1) A device that, when installed on a firearm, is designed to prevent the firearm from being operated without first deactivating the device; (2) a device incorporated into the design of the firearm that is designed to prevent the operation of the firearm by anyone not having access to the device; or (3) a safe, gun safe, gun case, lock box, or other device that is designed to be or can be used to store a firearm and that is designed to be unlocked only by means of a key, a combination, or other similar means.

The provisions of the Act relating to secure gun storage became effective April 19, 1999.

(2) Definition of Antique Firearm.

The Act amended the definition of “antique firearm” in the GCA to include certain modern muzzle loading firearms. Specifically, section 115 of the Act amended the definition of “antique firearm” in 18 U.S.C. 921(a)(16) to include a weapon that is a muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol; that is designed to use black powder or a black powder substitute; and that cannot use fixed ammunition. The term expressly does not include any weapon that incorporates a firearm frame or receiver; any firearm converted into a muzzle loading weapon; or any muzzle loading weapon that can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof. 18 U.S.C. 921(a)(16)(C).

The provisions of the Act relating to antique firearms became effective upon the date of enactment, October 21, 1998.

(3) Miscellaneous Amendments.

Prior to amendment by the Act, the term “rifle” was defined in the GCA to mean “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed metallic cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger.” 18 U.S.C. 921(a)(7) (1994). The Act amended the definition of “rifle” by replacing the words “the explosive in a fixed metallic cartridge” with “an explosive.”

See

18 U.S.C. 921(a)(7) (2018).

Additionally, prior to amendment by the Act, the term “shotgun” was defined in the GCA to mean “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger.” 18 U.S.C. 921(a)(5) (1994). The Act amended the definition of “shotgun” by replacing the words “the explosive in a fixed shotgun shell” with “an explosive.”

See

18 U.S.C. 921(a)(5) (2018).

The provisions of the Act relating to the miscellaneous amendments also became effective upon the date of enactment, October 21, 1998.

II. Proposed Rule

On May 26, 2016, the Department of Justice (“the Department”) published in the

Federal Register

a notice of proposed rulemaking (“NPRM”) to codify into regulation certain provisions of the Act. Commerce in Firearms and Explosives; Secure Gun Storage, Amended Definition of Antique Firearm, and Miscellaneous Amendments, 81 FR 33448 (May 26, 2016). The rule proposed amending ATF's regulations to account for the existing statutory requirement that applicants for Federal firearms dealer licenses certify that secure gun storage or safety devices will be available at any place where firearms are sold under the license to nonlicensed individuals. This certification is already included in ATF Form 7/7CR. The NPRM also proposed requiring applicants for Federal firearms manufacturer or importer licenses to complete the certification if the licensee will have premises where firearms are sold to nonlicensees.

Next, the Department proposed to amend 27 CFR 478.11 by adding a definition for the term “secure gun storage or safety device” that tracks the language in the statute, as well as a new section 27 CFR 478.104 that specifies the terms of the certification requirement. Moreover, the proposed regulation required that the secure gun storage or safety device be compatible with the firearms offered for sale by the licensee. 81 FR at 33449. Therefore, applicants under the proposed rule would be required to certify the availability of compatible secure gun storage or safety devices at any place where firearms were sold under the license to nonlicensees.

The NPRM proposed applying the certification requirement to applicants for Federal firearms importer or manufacturer licenses if the licensee has

premises where firearms are sold to nonlicensees. Federal regulations provide that a licensed importer or a licensed manufacturer may engage in business on the licensed premises as a dealer in the same type of firearms authorized by the license to be imported or manufactured. 27 CFR 478.41(b). Accordingly, under the proposed rule, an applicant for a Federal firearms importer or manufacturer license that engaged in business on the licensed premises as a dealer of firearms to nonlicensees was required to complete the certification.

One provision of the Act provides that, “[n]otwithstanding any other provision of law, evidence regarding compliance or noncompliance [with the secure gun storage or safety device requirement] shall not be admissible as evidence in any proceeding of any court, agency, board, or other entity.” Public Law 105-277, sec. 119, reprinted in 18 U.S.C. 923 note. In the proposed rule, ATF explained that this section applies to civil liability actions against dealers and other similar actions, and not to proceedings associated with license denials or revocations (or appeals in Federal court from decisions in such proceedings) involving noncompliance with the secure gun storage or safety device requirement of the GCA. 81 FR at 33449. The proposed rule amended 27 CFR 478.73 to clarify that a notice of revocation of a Federal firearms license may be issued whenever the ATF Director has reason to believe that a licensee fails to have secure gun storage or safety devices available at any place in which firearms are sold under the license to persons who are not licensees (except in any case in which a secure gun storage or safety device is temporarily unavailable because of theft, casualty loss, consumer sales, backorders from a manufacturer, or any other similar reason beyond the control of the licensee).

Id.

at 33453.

Finally, the Department proposed to amend 27 CFR 478.11 to reflect the definitions of the terms “antique firearm,” “rifle,” and “shotgun” set forth in the Act.

Id.

Comments on the notice of proposed rulemaking were to be submitted to ATF on or before August 24, 2016.

III. Comment Analysis and Department Response

In response to the NPRM, with respect to an industry that includes approximately 59,909 federally licensed firearms dealers (including pawnbrokers), 12,673 licensed firearms manufacturers, and 1,054 licensed firearms importers, ATF received only four comments. This small number of responses indicates that a broad majority of the firearms industry accepts codification of behavior that has been statutorily required for more than 20 years.

A. Comments on Impact on Manufacturers and Importers

1. Comments Received

One commenter argued that the proposed rule imposes the certification requirement on all manufacturers and importers that sell firearms to the public, despite the fact that the statute requires only that dealers in firearms meet the certification requirement. Further, according to the commenter, forcing manufacturers and importers to have secure gun storage available and perhaps even to “use” such secure gun storage could create a burdensome and expensive requirement. Requiring firearms, many of which might not even be finished, to be stored under lock and key every night would, in the opinion of the commenter, be difficult, time consuming, and cost-prohibitive. Therefore, according to the commenter, the proposed rule violated Federal law by creating new requirements for licensees.

2. Department Response

The Department disagrees with the comment that ATF does not have the statutory authority to require licensed manufacturers and importers to certify that secure gun storage or safety devices will be available at any place in which firearms are sold to nonlicensees. Under 18 U.S.C. 923(a), the license application must be in such form and contain the information necessary to determine eligibility for licensing as the Attorney General may prescribe by regulation. Similarly, under 18 U.S.C. 926(a), the Attorney General has the authority to promulgate any rules that are necessary to implement the provisions of the GCA. “Because § 926 authorizes the [Attorney General] to promulgate those regulations which are `necessary,' it almost inevitably confers some measure of discretion to determine what regulations are in fact `necessary.' ”

Nat'l Rifle Ass'n

v.

Brady,

914 F.2d 475, 479 (4th Cir. 1990).

Although the language of section 923(d)(1)(G) refers only to applications for license as a dealer, section 923(e), as amended by the Act, more broadly provides that the Attorney General may, after notice and an opportunity for a hearing, “revoke

any

license issued under this section if

the holder of such license

. . . fails to have secure gun storage or safety devices available at any place in which firearms are sold under the license to persons who are not licensees.” (Emphasis added.) Section 923(e) thus applies to all licensees that sell firearms to nonlicensees—not just dealer licensees. Hence, because licensed manufacturers and importers may sell their firearms directly to nonlicensees,

see

27 CFR 478.41(b), ATF has the authority to revoke the licenses of manufacturers or importers if they fail to have secure gun storage or safety devices available for retail transactions. Requiring manufacturers and importers to certify that secure gun storage or safety devices will be available at any place in which firearms are sold to nonlicensees helps ensure that manufacturers and importers are aware of the implicit requirement in section 923(e) that these licensees must make such storage or devices available. This certification has been required of all license applicants except collectors on ATF Form 7/7CR (5300.12/5310.16) for years.

Finally, neither the NPRM nor the final rule requires manufacturers or importers to use secure gun storage or safety devices on their inventory; rather, they need only make such storage or devices available.

B. Comments on Compatibility of Devices

1. Comments Received

One commenter noted that 18 U.S.C. 923 does not explicitly require that secure gun storage or safety devices maintained by Federal firearms dealers be compatible or even be used, only that they be available; therefore, according to the commenter, the proposed rule cannot require it. Further, the commenter noted that ATF has no authority to revoke the license of a dealer that does not lock up its firearms.

2. Department Response

The commenter misinterpreted the proposed rule's application. The proposed rule did not, as the commenter suggested, require federally licensed dealers to use compatible devices on their inventory, nor did the rule require them to lock up and store their firearms inventory. Rather, the NPRM proposed implementing 18 U.S.C. 923(d)(1)(G) by requiring applicants for dealer licenses, or those licensed manufacturers and importers that will also deal firearms to nonlicensed individuals as permitted in 27 CFR 478.41(b), to certify only that compatible secure gun storage or safety devices are available at any place where firearms are sold under the license to nonlicensed individuals.

The Department believes the compatibility language in the rule is

consistent with the text of the statute because it clarifies that the secure gun storage or safety devices made available must be compatible with the firearms offered for sale by the licensee.

Courts have explained that “the administration and enforcement of a statute call upon the agency charged with its execution to interpret it.”

Continental Airlines, Inc.

v.

Dep't of Transportation,

843 F.2d 1444, 1449 (D.C. Cir. 1988). When a court is called upon to review an agency's construction of a statute it administers, the court looks to the framework set forth in

Chevron U.S.A., Inc.

v.

Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984). The first step of

Chevron

review is to ask “whether Congress has directly spoken to the precise question at issue.”

Id.

842. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue . . . the question for the court is whether the agency's answer is based on a permissible construction of the statute.”

Id.

at 842-43 (footnote omitted). Although the Act defines “secure gun storage or safety device,” that definition does not specify whether or with which sorts of firearms the secure gun storage and safety devices must be compatible. The Department believes that this rule comports with the best reading of the statute and permissibly clarifies that such storage and devices must be compatible with the firearms sold at the licensed premises. This specification in the regulation resolves any ambiguity in the statute and fulfills its purpose because customers purchasing firearms should be able to leave the premises with a secure gun storage or safety device that is compatible with the type of firearm they purchased. A contrary rule, under which licensees could comply with the statute by making available exclusively devices that are incompatible with the firearms they sell, would unreasonably thwart Congress's evident purpose in the Act.

See City of Chicago

v.

U.S. Dep't of Treasury, Bureau of Alcohol, Tobacco & Firearms,

423 F.3d 777, 781 (7th Cir. 2005) (statutes should not be read in a way that “would thwart Congress' intention”).

C. Comments on Noncompliance Evidence in License Denial or Revocation Procedures

1. Comments Received

In the NPRM, ATF referenced a provision in the Act that states that “evidence regarding compliance or noncompliance [with the secure gun storage or safety device requirement] shall not be admissible as evidence in any proceeding of any court, agency, board, or other entity.”

See

Public Law 105-277, sec. 119. ATF explained that, based on basic tenets of statutory construction, it reads the evidentiary limitation as applying only “to civil liability actions against dealers and other similar actions, and not to proceedings associated with license denials or revocations (or appeals in Federal court from decisions in such proceedings) involving noncompliance with the secure gun storage or safety device requirement” of the Act. 81 FR at 33449.

Three commenters asserted that this provision of the Act prohibits the use of a dealer's compliance or noncompliance with the secure gun storage or safety device requirement in any administrative proceedings to deny or revoke a Federal firearms license. Two commenters also argued that ATF's interpretation substitutes its judgment for that of Congress, and, by effectively amending legislation, violates the “Separation of Powers Doctrine.” These commenters stated that ATF does not have the power to change or ignore statutes. They argued that words have meaning, and that ATF cannot construe statutes to permit something the plain text prohibits or create an exception for ATF's administrative hearings where one does not exist in the law.

2. Department Response

The Department respectfully disagrees. There are at least two canons of statutory interpretation that inform the Department's reading of the evidence provision the commenters relied on. The first relevant canon provides that, “[w]henever a power is given by statute, everything necessary to make it effectual or requisite to attain the end is implied.”

Luis

v.

United States,

136 S. Ct. 1093, 1097 (2016) (Thomas, J., concurring) (quoting 1 J. Kent, Commentaries on American Law 464 (13th ed. 1884)). The second relevant canon provides that a “court will not merely look to a particular clause in which general words may be used, but will take in connection with it the whole statute . . . and the objects and policy of the law.”

Stafford

v.

Briggs,

444 U.S. 527, 535 (1980) (quoting

Brown

v.

Duchesne,

19 How. 183, 194 (1857)). The evidence provision cannot be read in isolation. Rather, it must be read within the context of the rest of the statute, including the specific grant of authority for the Attorney General to revoke the license of a licensee that does not comply with the Act. Moreover, the Act specifically provides that none of its amendments “shall be construed . . . as creating a cause of action against any firearms dealer or any other person for any civil liability.” 18 U.S.C. 923 note. That prohibition on civil liability implies that Congress expected compliance with the secure gun storage or safety device requirement to be enforced not by private individuals in civil actions, but by the Attorney General in administrative proceedings, in accordance with the specific authority granted to the Attorney General to do so in 18 U.S.C. 923(e). The Attorney General could not fulfill this role if, as asserted by the commenters, evidence of noncompliance could not be used in administrative proceedings related to that noncompliance, thus indicating that the evidence provision in the Act does not apply to administrative proceedings regarding compliance with the secure gun storage or safety device requirement.

Cf. United States

v.

Tohono O'Odham Nation,

563 U.S. 307, 315 (2011) (“Courts should not render statutes nugatory through construction.”).

The Department's interpretation of the evidence provision is further supported by the legislative history. The secure gun storage provisions that were enacted were initially sponsored by Senator Larry Craig as part of S.10, the Violent and Repeat Juvenile Offender Act of 1997, for which a Senate report was produced by the Senate Committee on the Judiciary.

2

The Committee's report stated that “[t]he penalty for willful violation . . . is revocation of the dealer's license,

after notice and opportunity for hearing is given

pursuant to current law.”

3

Thus, the Committee evidently expected that noncompliance with the secure gun storage and safety device provisions would be enforced through administrative proceedings, including a hearing. It would accordingly be nonsensical to bar the Attorney General from using evidence of such noncompliance in the same proceedings. Congress, in other words, would not have written the specific amendments giving the Attorney General the ability to revoke or deny a license based on noncompliance if

evidence of noncompliance could not be considered at the hearing ATF is required to conduct under the law. Accordingly—in light of the context in which the evidence provision appears, the legislative history underlying the secure gun storage or safety device requirement, and the authority granted in section 923(e)—the Department's position that the evidence provision does not apply to ATF's enforcement hearings or actions is the best interpretation of the law, and is certainly a permissible interpretation of the provision.

See Chevron,

467 U.S. at 843.

2

S. Rep. No. 105-108, at 108 (1997).

3

Id.

(emphasis added).

Furthermore, Congress expressly authorized the Attorney General to deny or revoke a license if the licensee or applicant fails to have or certify that it has secure gun storage or safety devices available at any place in which firearms are sold under the license to persons who are not licensees (with the same exceptions noted above). 18 U.S.C. 923(d), (e). To exercise this authority, the Attorney General is required to provide notice to an applicant or licensee and, upon request of the aggrieved party, is authorized to conduct an administrative hearing to make a final determination. 18 U.S.C. 923(e), (f); 27 CFR 771.40-44. The agency's final decision is appealable to a Federal court. 18 U.S.C. 923(f)(3). ATF

4

can also institute criminal proceedings against a licensee for violations of the GCA or the regulations. 18 U.S.C. 923(f)(4). The express statutory grant of authority in section 923 to deny or revoke a license based on evidence of noncompliance supersedes the general language the commenters relied on.

See RadLAX Gateway Hotel, LLC

v.

Amalgamated Bank,

566 U.S. 639, 645 (2012) (citing

HCSC-Laundry

v.

United States,

450 U.S. 1, 6 (1981) (per curiam), for the proposition that the specific governs the general, “particularly when the two [statutes] are interrelated and closely positioned, both in fact being parts of [the same statutory scheme]”);

Busic

v.

United States,

446 U.S. 398, 406 (1980).

4

The Attorney General is responsible for enforcing the GCA, as amended. This responsibility includes the authority to promulgate regulations necessary to enforce the provisions of the GCA.

See

18 U.S.C. 926(a). The Attorney General has delegated the responsibility for administering and enforcing the GCA to the ATF Director, subject to the direction of the Attorney General and Deputy Attorney General.

See

28 CFR 0.130(a)(1)-(2).

D. Comments on Definitions of “Rifle” and “Shotgun”

1. Comments Received

Comments relating to the definitions of “rifle” and “shotgun” stated that, to prevent confusion between a modern rifle or shotgun and a muzzleloader or antique firearm, and to preclude future Federal “over reach” to classify muzzle loading arms as rifles, the definitions should specifically exclude muzzle loading arms using black powder or black powder substitutes. Additionally, one commenter stated that “explosive” is not the correct word for the propellant in a modern firearm and suggested amending the term “explosive” in the definitions of “rifle” and “shotgun” to reference smokeless solid propellants that deflagrate rather than detonate, thereby clarifying that metallic cartridge firearms using smokeless propellants do not fall under the definitions of “rifle” or “shotgun” due to their lack of use of an explosive that detonates.

2. Department Response

The Department respectfully declines to revise the definitions of “rifle” and “shotgun” to refer to smokeless solid propellants, rather than an “explosive,” because doing so would not be consistent with the statutory definitions set forth in the Act. The current statutory definition for “antique firearm” excludes certain muzzle loading firearms using black powder or black powder substitutes from the definition of “firearm,” thus making the inclusion of additional language to exclude them unnecessary. This final rule updates the existing regulations to reflect the current language of the statute.

Further, the Department does not agree with the suggested clarification of the term “explosive” in the definitions of “rifle” and “shotgun.” The use of the phrase “by action of an explosive” within the definitions of “rifle” and “shotgun” is appropriate, as it is descriptive of a process and not a classification of the propellant powder. The provisions of the Act relating to antique firearms and definitions of the terms “rifle” and “shotgun” became effective on the day of enactment, October 21, 1998. This final rule updates the existing regulations to reflect the current language of the statute.

IV. Final Rule

This final rule implements the amendments to the regulations in 27 CFR part 478 that were specified in the NPRM published on May 26, 2016 (81 FR 33448) without change.

V. Statutory and Executive Order Review

A. Executive Orders 12866 and 13563

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of maintaining flexibility.

The Office of Management and Budget (“OMB”) has determined that, although this final rule is not economically significant, it is a “significant regulatory action” under section 3(f)(4) of Executive Order 12866 because this final rule raises novel legal or policy issues arising out of legal mandates. Accordingly, the rule has been reviewed by OMB.

This rule requires that Federal firearms licensees (“FFLs”) make available secure gun storage or safety devices to non-FFLs that purchase firearms. Furthermore, this rule requires that all FFLs must certify that they have secure gun storage or safety devices available if they sell firearms to non-FFLs. This section describes the affected population, costs, and benefits for this rule. In determining the costs and benefits of this rule, ATF has followed OMB guidance for conducting regulatory analyses.

See

OMB, Memorandum to the Heads of Executive Agencies and Establishments,

Re: Regulatory Analysis,

Circular A-4 (Sept. 17, 2003) (“Circular A-4”). According to that guidance, regulations such as this one that largely restate self-enforcing statutory requirements should be analyzed against a baseline that pre-dates the enactment of the relevant statute. Thus, although ATF has implemented and enforced the Act in the years since its passage even in the absence of the regulation at issue in this rulemaking, the costs and benefits of doing so have been attributed to this regulation for the purpose of this analysis.

Table 1 provides the summary of the expected effects that this rule will have on the public. For more details regarding this analysis, please refer to the standalone regulatory analysis (“RA”) located on the docket.

Table 1—Summary of Affected Population, Costs, and Benefits

Category

Final rule

Applicability

• All FFLs.

• Type 1 FFL—Dealer in firearms other than destructive devices.

• Type 2 FFL—Pawnbroker in firearms other than destructive devices.

Affected Population

• 130,525 FFLs.

• 52,795 Type 1 FFLs.

• 7,114 Type 2 FFLs.

Total Costs to Industry, Public, and Government (7% Discount Rate)

$853,187 at 7% annualized.

Savings (7% Discount Rate)

N/A.

Benefits (7% Discount Rate)

N/A.

Benefits non-monetized

• Inhibits unauthorized access to privately owned firearms by individuals such as children, who might suffer accidental injuries.

• Inhibits access to privately owned firearms by criminals, who might use them for illicit activities.

1. Need for Federal Regulation

Agencies take regulatory action for various reasons. One reason is to carry out Congress's policy decisions, as expressed in statutes. Here, this rulemaking aims to comply with the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 relating to secure gun storage. Another reason underpinning regulatory action is the failure of the market to compensate for negative externalities caused by commercial activity. A negative externality can be the byproduct of a transaction between two parties that is not accounted for in the transaction. This final rule addresses a negative externality. The negative externality of the sale of firearms is that the firearms might not be stored properly and could be accessed by children who could cause accidents with the firearms or accessed by criminals who would use them for illicit activities. This rule provides nonlicensed firearm owners with the option to have devices that enable them to store their firearms so as to inhibit children or criminals from accessing their firearms.

2. Affected Population

This rulemaking affects two populations. The first population is the number of FFLs required to certify on Form 7/7CR that secure gun storage or safety devices will be available at any place in which firearms are sold under the license to persons who are not licensees. The second population is the number of FFLs that need to acquire secure gun storage or safety devices to make available at their place of business.

Entities directly affected by the requirement to certify the availability of secure gun storage or safety devices are all FFLs. Although this rule primarily affects FFLs that sell firearms to nonlicensed persons, this rule affects all FFLs in that all FFL applicants must indicate on the Form 7/7CR application whether the applicants have gun storage or safety devices available for nonlicensees or whether this requirement is not applicable because they are seeking a Type 3 license for collectors.

Because the Act was enacted shortly before 1999, and because ATF has required certification since 1999, ATF estimated the affected population to be all FFLs from 1999 to present. However, FFLs have to certify the availability of secure gun storage or safety devices only when they apply as new FFLs or every three years when they renew their Federal firearms license. Tables 2 and 3 show the numbers of new applications and renewals by FFL type and year. For more information on the methodology used to determine the numbers of new FFLs by Type, please refer to the standalone RA.

Table 2—New and Renewal Applications of Type 1, 2, 3, 6, and 7 Federal Firearms Licensees

Year

01—Dealer

in firearms

02—Pawnbroker

in firearms

03—Collector of

curios and relics

06—Manufacturer

of ammunition for firearms

07—Manufacturer

of firearms

1999

24,977

3,516

19,919

787

574

2000

24,829

3,583

19,919

777

652

2001

24,788

3,572

19,919

757

715

2002

24,660

3,615

19,919

727

800

2003

24,553

3,639

19,919

723

874

2004

24,547

3,579

19,919

711

938

2005

24,494

3,553

19,919

683

1,034

2006

24,406

3,503

19,919

679

1,143

2007

24,266

3,434

19,919

690

1,315

2008

24,148

3,345

19,919

708

1,482

2009

23,763

3,337

19,919

759

1,782

2010

23,284

3,368

19,919

859

2,097

2011

20,956

3,046

22,338

816

2,343

2012

21,259

3,105

21,622

855

3,104

2013

22,274

3,221

13,134

966

3,748

2014

22,049

3,235

6,767

1,033

3,966

2015

20,876

3,029

18,671

967

3,901

2016

22,104

3,146

19,322

957

4,317

2017

21,896

3,043

18,876

873

4,622

2018

20,479

2,799

17,643

776

4,603

2019

20,034

2,726

17,478

709

4,848

2020

22,710

3,060

20,150

777

6,076

*

Note:

Numbers may not add for Type 1 FFLs due to adjustments to ensure the numbers of applications in Tables 2 and 3 match total FFLs in this table.

Table 3—New and Renewal Applications of Type 8, 9, 10, and 11 Federal Firearms Licensees

Year

08—Importer of firearms

09—Dealer in

destructive

devices

10—Manufacturer

of destructive

devices

11—Importer of

destructive

devices

Total new

applications

and renewals

1999

265

4

44

26

50,112

2000

275

4

46

26

50,111

2001

283

5

45

28

50,112

2002

303

7

52

31

50,114

2003

307

7

56

35

50,113

2004

315

7

60

37

50,113

2005

317

7

66

40

50,113

2006

327

8

81

47

50,113

2007

338

11

86

52

50,111

2008

344

15

94

57

50,112

2009

365

17

107

64

50,113

2010

375

20

119

71

50,112

2011

349

18

112

69

50,047

2012

355

22

109

71

50,502

2013

411

24

113

76

43,967

2014

451

26

114

80

37,721

2015

428

25

117

82

48,096

2016

429

27

130

86

50,518

2017

430

30

138

90

49,998

2018

413

36

138

88

46,975

2019

413

48

146

94

46,496

2020

489

55

182

116

53,615

*

Note:

Numbers may not add for Type 1 FFLs due to adjustments to ensure the number of applications in Tables 2 and 3 match total FFLs in this table.

The second population directly affected by this rule primarily consists of Type 1 and 2 FFLs that sell firearms to the public. These FFLs must acquire secure gun storage or safety devices to be made available to firearm purchasers in their place of business. Based on the year the Act was enacted, ATF assumed that all Type 1 and 2 FFLs in 1999 had to acquire secure gun storage or safety devices to make available to any potential nonlicensee customers. From 2000 onwards, only new FFLs would need to acquire some form of gun storage or safety devices to make available to their customers. Although this rule affects all FFLs that sell firearms to nonlicensed individuals, no cost was attributed to Type 9, 10, and 11 licensees because they primarily deal, manufacture, and import destructive devices used by domestic and foreign governments rather than selling firearms at the retail level to nonlicensed individuals. Similarly, although Type 7 and 8 licensees are manufacturers and importers that may sell firearms to nonlicensed persons, most of these licensees, even prior to enactment of the Act, have voluntarily included secure gun storage or safety devices for their firearms, and hence would not have needed to separately acquire such storage or devices to make them available to nonlicensees.

5

Of those Type 7 and 8 FFLs that do not provide secure gun storage or safety devices, ATF assumed these licensees primarily sell firearms wholesale to Type 1 FFLs and do not sell to nonlicensed persons.

5

See Hearing before the Subcomm. on the Constitution of the S. Comm. on the Judiciary,

117th Cong. (2021), 2021 WL 2138600 (discussing the success of Project ChildSafe, through which “manufacturers have voluntarily included a locking device in every box sold since the late 1980's” (testimony of Joseph Bartozzi, President and CEO, National Shooting Sports Foundation)); S. Rep. No. 105-108, at 201-02 (“The arguments raised against safety locks ring hollow, especially in light of the recent announcement by eight[] of the Nation's largest handgun manufacturers that they will voluntarily comply with the heart of Senator Kohl's amendment by packaging a child safety lock with every handgun they sell.”).

Based on congressional testimony and subject matter experts' (“SMEs”) experience, most firearm manufacturers now include locks with new purchases of firearms, and, as noted above, have been doing so since before the enactment of the Act.

6

ATF, however, is not certain of the exact date when manufacturers and importers began voluntarily providing locks and, in the interest of not underestimating the costs attributable to this rule, ATF assumed that all Type 1 FFLs in 1999 would need to acquire secure gun storage or safety devices to make available to their customers. ATF then estimated that, as manufacturers and importers continued to provide locks with their firearms, and as this practice became more common, a decreasing number of FFLs needed to acquire secure gun storage or safety devices each year until year 2003. After 2003, ATF maintained a constant rate of 20 percent of FFLs that do not receive safety devices with the firearms they sell to account for any manufacturers and importers that, even today, do not provide safety devices with their firearms. In addition, Type 2 FFLs are pawnshops that acquire previously owned firearms. ATF does not know

whether the firearms acquired by Type 2 FFLs have secure locks or not. Therefore, ATF assumed that all new Type 2 FFLs need to acquire secure gun storage or safety devices to satisfy the requirements of the Act.

6

See supra

note 5.

Because Type 2 FFLs primarily deal with secondhand firearms and not new purchases, ATF assumed that, in 1999, all Type 2 FFLs acquired secure gun storage or safety devices and, from 2000 onward, only new Type 2 FFLs needed to acquire a means of securing firearms. Therefore, ATF assumed that pawnbrokers from 2000 to 2020 consisted only of new Type 2 FFLs.

Table 4 provides the estimated number of Type 1 and 2 FFLs that needed to acquire secure gun storage or safety devices and make them available at their place of business for potential nonlicensed customers. For more detailed information on obtaining the population of FFLs needing to acquire secure gun storage or safety devices to make available, please refer to the standalone RA.

Table 4—FFL Types 1 and 2 That Needed To Purchase Secure Gun Storage or Safety Devices

Year

New type 1 FFL

Rate of FFLs that do not receive locks from

manufacturers

(%)

Type 1 FFL

Type 2 FFL

needing

1999

71,290

100

71,290

10,035

2000

8,677

80

6,942

1,252

2001

8,663

60

5,198

1,248

2002

8,618

40

3,447

1,263

2003

8,581

20

1,716

1,272

2004

8,579

20

1,716

1,251

2005

8,560

20

1,712

1,242

2006

8,529

20

1,706

1,224

2007

8,481

20

1,696

1,200

2008

8,439

20

1,688

1,169

2009

8,305

20

1,661

1,166

2010

8,137

20

1,627

1,177

2011

7,768

20

1,554

854

2012

9,034

20

1,807

971

2013

10,177

20

2,035

1,063

2014

7,874

20

1,575

823

2015

7,088

20

1,418

730

2016

7,552

20

1,510

762

2017

6,599

20

1,320

645

2018

6,314

20

1,263

603

2019

5,667

20

1,133

532

2020

8,442

20

1,688

772

3. Costs

This analysis considers the rule's direct (or industry) costs, indirect costs, and government costs. Industry costs are the costs to FFLs that need to certify the availability of secure gun storage or safety devices and the costs to FFLs that need to acquire secure gun storage or safety devices to make available to the public. Indirect costs are those costs associated with organizations and manufacturers providing gun locks or safety devices. Government costs are enforcement costs to ensure that the affected FFLs have been and are continuing to comply with the statute.

In determining direct, industry costs, ATF used the average wage rate associated with certain job titles listed on Form 7/7CR by FFL type. ATF used a loaded wage rate of 1.42 to include fringe benefits such as insurance as part of the overall compensation.

7

Because FFLs are segmented by industry type, ATF used a sample from each industry type to determine an average wage rate by each FFL type. For FFLs completing Form 7CR, ATF assigned a leisure wage rate of $16.52 because FFLs that complete Form 7CR are Type 3 FFLs—

i.e.,

collectors who do not apply for a license as part of an occupation.

8

Although Type 3 FFL collectors are not required to make available secure gun storage or safety devices, they are still required to answer the question about availability on Form 7CR by marking “N/A.” Therefore, costs for that action were counted as an industry cost of this rule. For more information on the wages used for each sample, please refer the standalone RA. Table 5 provides the average loaded wage rate by FFL type.

7

Bureau of Labor Statistics, Series Report,

https://data.bls.gov/cgi-bin/srgate.

Data was generated for 2020 using series CMU2010000000000D, CMU2010000000000P and CMU2020000000000D, CMU2020000000000P. Average total compensation was $35.87. Average cost per hour worked was $25.18. Loaded wage rate 1.42 = $35.87/$25.18.

8

As explained more fully in the accompanying RA, the leisure wage rate was estimated using the calculation described in the Department of Transportation's guidance on the valuation of travel time.

See

Dep't of Transportation, Revised Departmental Guidance on Valuation of Travel Time in Economic Analysis 19 (Sept. 27, 2016),

https://www.transportation.gov/sites/dot.gov/files/docs/2016%20Revised%20Value%20of%20Travel%20Time%20Guidance.pdf.

Table 5—Average Loaded Wage Rate by FFL Type

Types 1 and 2

$82.06

Type 3

16.52

Type 6

58.91

Type 7

62.93

Type 8

76.13

Type 9

103.44

Type 10

87.86

Type 11

109.30

The time needed for an FFL to certify on Form 7/7CR that it has secure gun storage or safety devices (or to mark “N/A”) was estimated at 0.1 minute (0.0017 hours). ATF started with the average loaded wage rate by type of license, multiplied the wage rate by the estimated number of new and renewal FFLs per type from Tables 2 and 3, and multiplied that result by the hour burden to determine the annual cost to certify. Tables 6 and 7 provide the annual costs to certify by FFL type from 1999 to the present.

Table 6—Cost To Certify by FFL Types 1, 2, 3, 6, 7, and 8

Year

Types 1 and 2

Type 3

Type 6

Type 7

Type 8

1999

$3,897

$548

$77

$60

$34

2000

3,886

548

76

68

35

2001

3,879

548

74

75

36

2002

3,867

548

71

84

38

2003

3,856

548

71

92

39

2004

3,847

548

70

98

40

2005

3,836

548

67

108

40

2006

3,817

548

67

120

41

2007

3,788

548

68

138

43

2008

3,760

548

70

155

44

2009

3,706

548

75

187

46

2010

3,645

548

84

220

48

2011

3,283

615

80

246

44

2012

3,332

595

84

326

45

2013

3,487

362

95

393

52

2014

3,458

186

101

416

57

2015

3,269

514

95

409

54

2016

3,453

532

94

453

54

2017

3,411

520

86

485

55

2018

3,184

486

76

483

52

2019

3,113

481

70

508

52

2020

3,524

555

76

637

62

Table 7—Cost To Certify by FFL Types 9, 10, and 11

Year

Type 9

Type 10

Type 11

Total

1999

$1

$6

$5

$4,564

2000

1

7

5

4,562

2001

1

7

5

4,561

2002

1

8

6

4,560

2003

1

8

6

4,558

2004

1

9

7

4,556

2005

1

10

7

4,554

2006

1

12

9

4,551

2007

2

13

9

4,545

2008

3

14

10

4,540

2009

3

16

12

4,529

2010

3

17

13

4,515

2011

3

16

13

4,300

2012

4

16

13

4,415

2013

4

17

14

4,423

2014

4

17

15

4,255

2015

4

17

15

4,378

2016

5

19

16

4,626

2017

5

20

16

4,597

2018

6

20

16

4,323

2019

8

21

17

4,271

2020

9

27

21

4,912

For purposes of this analysis, ATF estimated that Type 1 and 2 FFLs that must comply with the Act would have purchased at least two safety devices at an average price of $7.39 per safety device and tape ($2.36) to notate the owner of the gun. Combined, the average price to make available secure gun storage or safety devices for customers is $17.14 per store. For sources of costs to make available secure gun storage or safety devices, refer to section 3.1.2 of the standalone RA.

For an annual direct, industry cost of certifying and making available secure gun storage or safety devices, refer to Table 8. That table provides the annual cost of certifying and making available secure gun storage or safety devices from 1999 to 2020.

Table 8—Year by Year Direct, Industry Cost

Year

Undiscounted

industry costs

Discounted cost

7%

3%

1999

$1,398,539

$6,196,088

$2,679,745

2000

147,582

611,072

274,546

2001

117,089

453,096

211,475

2002

86,808

313,942

152,218

2003

56,753

191,821

96,618

2004

56,368

178,057

93,168

2005

56,157

165,784

90,115

2006

55,727

153,753

86,821

2007

55,132

142,161

83,393

2008

54,445

131,204

79,954

2009

53,922

121,442

76,879

2010

53,517

112,645

74,080

2011

45,572

89,646

61,244

2012

52,034

95,663

67,893

2013

57,778

99,274

73,192

2014

45,742

73,451

56,256

2015

41,188

61,813

49,181

2016

43,561

61,097

50,499

2017

38,282

50,179

43,086

2018

36,298

44,466

39,664

2019

32,817

37,572

34,815

2020

47,075

50,370

48,487

Total

2,632,384

9,434,596

4,523,330

Annualized

852,942

283,827

In addition to direct, industry costs for Type 1 and 2 FFLs to make available secure gun storage or safety devices, the government incurred costs to enforce secure gun storage and safety device requirements on FFLs. Based on ATF's database, ATF found two violations in 2019 and six violations in 2020, making the average number of violations four. Based on input from SMEs, ATF determined that Industry Operations Investigators (“IOI”) undertaking inspections related to the secure gun storage and safety device requirement range from a GS-9 to GS-13, making the average IOI a GS-10, step 5. The hourly wage rate for a GS-10, step 5 is $27.56.

9

In order to account for fringe benefits, ATF attributed a load rate of 1.41, making the loaded, hourly wage rate for an IOI $38.86.

10

11

The SMEs estimated that it would take an average of 20 minutes (0.33 hours) to have a conversation with the FFL in question and compile a report or warning regarding the violation, making the government cost $26 in 2019 and $78 in 2020. Because ATF does not have any information regarding inspections for previous years, ATF used the average of four violations per year as the government cost for enforcement between the years 1999 and 2018. The average cost of enforcement was estimated to be $52.

9

Office of Personnel Management, SALARY TABLE 2021-GS (Jan. 2021),

https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2021/GS_h.pdf.

10

Federal benefits account for 41 percent of total compensation. Congressional Budget Office, Comparing the Compensation of Federal and Private-Sector Employees, 2011 to 2015, at 14 (Apr. 2017),

https://www.cbo.gov/system/files/115th-congress-2017-2018/reports/52637-federalprivatepay.pdf.

11

$38.86 loaded wage rate = $27.56 hourly wage rate * 1.41 load rate.

ATF accounts for indirect costs of this rule although they are not considered part of the total cost of the rule. Other organizations, such as Project ChildSafe, provide gun locks free to the public, which ends up being a savings for the populations affected by this rule. Because these costs are voluntarily incurred, they are considered indirect costs. Based on information provided by Project ChildSafe, which primarily obtains its funding through other sources, this organization has provided approximately 38 million gun locks to the public and provides approximately 1.8 million gun lock kits annually.

12

Furthermore, Project ChildSafe estimates that manufacturers have included approximately 70 million locks with a purchase of a firearm, which they estimate is valued at $140 million.

13

These are indirect costs that ATF does not consider as part of the total costs of this final rule.

12

Project ChildSafe, Project ChildSafe by the Numbers,

https://www.projectchildsafe.org/sites/default/files/NSSF_PCS_Infographic_PCSByTheNumbers_Jan2019_0.pdf

(last accessed Dec. 17, 2021).

13

Id.

Other indirect costs include firearm manufacturers who voluntarily include safety devices with each purchase of a new firearm. While manufacturers are not required to provide gun locks with their firearms due to this rule, it is possible that manufacturers have incorporated the cost of these gun locks into the final purchasing price of the firearm and is therefore already accounted for. It is for these reasons that ATF does not consider these indirect costs as costs attributed to this rule.

ATF accounted for the direct, industry costs of this rule along with the government enforcement costs attributed to this rule. Table 9 provides the total costs for this rule.

Table 9—Total Direct, Industry and Government Costs of This Rule

Year

Undiscounted total costs

Discounted cost

7%

3%

1999

$1,398,590

$6,196,318

$2,679,844

2000

147,634

611,287

274,642

2001

117,140

453,296

211,569

2002

86,859

314,130

152,309

2003

56,805

191,996

96,706

2004

56,420

178,221

93,254

2005

56,209

165,937

90,198

2006

55,779

153,896

86,902

2007

55,184

142,294

83,471

2008

54,497

131,329

80,030

2009

53,973

121,558

76,953

2010

53,569

112,754

74,152

2011

45,623

89,748

61,314

2012

52,086

95,758

67,960

2013

57,830

99,363

73,257

2014

45,793

73,534

56,320

2015

41,240

61,890

49,243

2016

43,613

61,170

50,559

2017

38,333

50,247

43,145

2018

36,350

44,530

39,720

2019

32,843

37,602

34,843

2020

47,153

50,454

48,567

Total

2,633,524

9,437,311

4,524,959

Annualized

853,187

283,929

Overall, ATF estimated that, in accordance with the standards for regulatory analysis described in OMB Circular A-4, the total cost attributable to this rule from 1999 to 2020 was $2.6 million undiscounted, or annualized at $853,187 and $283,929 at 7 percent and 3 percent, respectively.

4. Benefits

The benefit of this rule is making available secure gun storage or safety devices for owners of firearms who otherwise do not have such storage or safety devices available to them. Making secure gun storage or safety devices available inhibits unauthorized access to privately owned firearms for individuals such as children, who might accidently discharge them, and inhibits access by criminals, who might use them for illicit activities.

B. Executive Order 13132

This rule will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132 (Federalism), the Attorney General has determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

C. Executive Order 12988

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform).

D. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 601-12, the Attorney General certifies that this final rule will not have a significant economic impact on a substantial number of small entities. The Department has considered whether this final rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of fewer than 50,000.

ATF has determined that, in order for the costs associated with this rule to impact a small entity's revenue by even one percent, the entity would need to make $1,728 or less in annual revenue. For the costs to have a 10 percent effect on revenue, a small entity would need to make $173 or less in revenue. ATF has determined that it is unlikely that a small entity would make such minimal amounts in revenue and continue to operate. Therefore, the Attorney General certifies under 5 U.S.C. 605(b) that this final rule would not have a significant economic impact on a substantial number of small entities.

E. Unfunded Mandates Reform Act of 1995

This rule will not result in the aggregate expenditure by State, local, and Tribal governments, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

F. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (“PRA”), 44 U.S.C. 3501-21, agencies are required to submit for OMB review and approval any reporting requirements inherent in a rule. The collection of information contained in this final rule is a collection of information that has been reviewed and approved by OMB in accordance with the requirements of the PRA, and it has been assigned an OMB Control Number.

Title:

Application for Federal Firearms License—ATF Form 7 (5310.12)/7CR (5310.16).

OMB Control Number:

1140-0018.

Summary of the Collection of Information:

This collection of information is used by the public when applying for a Federal firearms license

(“FFL”); this form is used to apply for all FFL types.

Need for Information:

The information requested on the form is used to determine the eligibility of the applicant to obtain an FFL, and the identity and eligibility of Responsible Persons.

Proposed Use of Information:

The information contained will be used to determine the applicant's eligibility to receive a license.

Description of the Respondents:

All Federal firearms licensees.

Number of Respondents:

47,088.

Frequency of Response:

Once every 3 years.

Burden of Response:

For this rule, 0.0017 hours. Total 1 hour.

Estimate of Total Annual Burden:

For this rule, 80 hours. Total burden 47,088 hours.

G. Congressional Review Act

Pursuant to the Congressional Review Act, 5 U.S.C. 801-08, OMB's Office of Information and Regulatory Affairs designated this rule as not a “major rule,” as defined by 5 U.S.C. 804(2). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or a significant adverse effect on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

Disclosure

Copies of this rule and the comments received in response to the proposed rule will be available for public inspection through the Federal eRulemaking portal,

www.regulations.gov

(search for RIN 1140-AA10), or by appointment during normal business hours at the ATF Reading Room, Room 1E-062, 99 New York Avenue NE, Washington, DC 20226; telephone: (202) 648-8740.

List of Subjects in 27 CFR Part 478

Administrative practice and procedure, Arms and munitions, Exports, Freight, Imports, Intergovernmental relations, Law enforcement officers, Military personnel, Penalties, Reporting and recordkeeping requirements, Research, Seizures and forfeitures, Transportation.

Authority and Issuance

Accordingly, for the reasons discussed in the preamble, 27 CFR part 478 is amended as follows:

PART 478—COMMERCE IN FIREARMS AND AMMUNITION

1. The authority citation for part 478 is revised to read as follows:

Authority:

5 U.S.C. 552(a); 18 U.S.C. 847, 921-931; 44 U.S.C. 3504(h).

2. Amend § 478.11 as follows:

a. Revise the definition of “Antique firearm”;

b. Remove the words “the explosive in a fixed metallic cartridge” in the definition of “Rifle” and add in their place “an explosive”;

c, Add a definition for “Secure gun storage or safety device” in alphabetical order; and

d. Remove the words “the explosive in a fixed shotgun shell” in the definition of “Shotgun” and add in their place “an explosive”.

The revision and addition read as follows:

§ 478.11

Meaning of terms.

Antique firearm.

(1) Any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898;

(2) Any replica of any firearm described in paragraph (a) of this definition if such replica:

(i) Is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition; or

(ii) Uses rimfire or conventional centerfire fixed ammunition that is no longer manufactured in the United States and that is not readily available in the ordinary channels of commercial trade; or

(3) Any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol that is designed to use black powder, or a black powder substitute, and that cannot use fixed ammunition. For purposes of this paragraph (3), the term “antique firearm” does not include any weapon that incorporates a firearm frame or receiver, any firearm that is converted into a muzzle loading weapon, or any muzzle loading weapon that can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.

Secure gun storage or safety device.

(1) A device that, when installed on a firearm, is designed to prevent the firearm from being operated without first deactivating the device;

(2) A device incorporated into the design of the firearm that is designed to prevent the operation of the firearm by anyone not having access to the device; or

(3) A safe, gun safe, gun case, lock box, or other device that is designed to be or can be used to store a firearm and that is designed to be unlocked only by means of a key, a combination, or other similar means.

3. Amend § 478.73 by adding a sentence after the first sentence in paragraph (a) to read as follows:

§ 478.73

Notice of revocation, suspension, or imposition of civil fine.

(a) * * * In addition, a notice of revocation of the license, on ATF Form 4500, may be issued whenever the Director has reason to believe that a licensee fails to have secure gun storage or safety devices available at any place in which firearms are sold under the license to persons who are not licensees (except in any case in which a secure gun storage or safety device is temporarily unavailable because of theft, casualty loss, consumer sales, backorders from a manufacturer, or any other similar reason beyond the control of the licensee). * * *

4. Add § 478.104 to subpart F to read as follows:

§ 478.104

Secure gun storage or safety device.

(a) Any person who applies to be a licensed firearms dealer must certify on ATF Form 7 (5310.12), Application for Federal Firearms License, that compatible secure gun storage or safety devices will be available at any place where firearms are sold under the license to nonlicensed individuals (subject to the exception that in any case in which a secure gun storage or safety device is temporarily unavailable because of theft, casualty, loss, consumer sales, backorders from a manufacturer, or any other similar reason beyond the control of the licensee, the dealer shall not be considered in violation of the requirement to make available such a device).

(b) Any person who applies to be a licensed firearms importer or a licensed manufacturer and will be engaged in business on the licensed premises as a dealer in the same type of firearms authorized by the license to be imported or manufactured must make the certification required under paragraph (a) of this section.

(c) Each licensee described in this section must have compatible secure gun storage or safety devices available at any place in which firearms are sold under the license to persons who are not licensees. However, such licensee shall

not be considered to be in violation of this requirement if a secure gun storage or safety device is temporarily unavailable because of theft, casualty loss, consumer sales, backorders from a manufacturer, or any other similar reason beyond the control of the licensee.

Dated: December 23, 2021.

Merrick B. Garland,

Attorney General.

[FR Doc. 2021-28398 Filed 1-3-22; 8:45 am]

BILLING CODE 4410-FY-P