Definition of “Frame or Receiver” and Identification of Firearms

Federal RegisterApr 26, 2022

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DEPARTMENT OF JUSTICE

Bureau of Alcohol, Tobacco, Firearms, and Explosives

27 CFR Parts 447, 478, and 479

[Docket No. 2021R-05F; AG Order No. 5374-2022]

RIN 1140-AA54

Definition of “Frame or Receiver” and Identification of Firearms

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

The Department of Justice (“Department”) is amending Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) regulations to remove and replace the regulatory definitions of “firearm frame or receiver” and “frame or receiver” because the current regulations fail to capture the full meaning of those terms. The Department is also amending ATF's definitions of “firearm” and “gunsmith” to clarify the meaning of those terms, and to provide definitions of terms such as “complete weapon,” “complete muffler or silencer device,” “multi-piece frame or receiver,” “privately made firearm,” and “readily” for purposes of clarity given advancements in firearms technology. Further, the Department is amending ATF's regulations on marking and recordkeeping that are necessary to implement these new or amended definitions.

DATES:

This rule is effective August 24, 2022.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Summary of the Regulatory Action

B. Summary of Costs and Benefits

II. Background

A. ATF's Application of the Definitions to Split Frames and Receivers

B. Privately Made Firearms

C. Advanced Notice of Proposed Rulemaking on Identification Markings Placed on Firearm Silencers and Firearm Mufflers

III. Notice of Proposed Rulemaking

A. Definition of “Firearm”

B. Definition of “Frame or Receiver”

C. Definition of “Readily”

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

E. Definition of “Privately Made Firearm”

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

G. Definition of “Gunsmith”

H. Marking Requirements for Firearms

I. Recordkeeping

J. Record Retention

IV. Analysis of Comments and Department Responses for the Proposed Rule

A. Issues Raised in Support of the Rule

B. Issues Raised in Opposition to the Rule

V. Final Rule

A. Definition of “Firearm”

B. Definition of “Frame or Receiver”

C. Definition of “Readily”

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

E. Definition of “Privately Made Firearm”

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

G. Definition of “Gunsmith”

H. Marking Requirements for Firearms

I. Recordkeeping

J. Record Retention

K. Effect on Prior ATF Rulings and Procedures

L. Severability

VI. Statutory and Executive Order Review

A. Executive Orders 12866 and 13563

B. Executive Order 13132

C. Executive Order 12988

D. Regulatory Flexibility Act

E. Small Business Regulatory Enforcement Fairness Act of 1996

F. Congressional Review Act

G. Unfunded Mandates Reform Act of 1995

H. Paperwork Reduction Act of 1995

I. Executive Summary

A. Summary of the Regulatory Action

There are no statutory definitions for the terms “frame” or “receiver” in the Gun Control Act of 1968 (“GCA”) or the National Firearms Act of 1934 (“NFA”). To implement these statutes, the terms “firearm frame or receiver” and “frame or receiver” were defined in regulations to mean “[t]hat part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” 27 CFR 478.11 (implementing GCA, Title I); 27 CFR 479.11

(implementing GCA, Title II). These definitions were meant to provide direction as to which portion of a weapon is the frame or receiver for purposes of licensing, serialization, and recordkeeping, thereby ensuring that a component necessary for the functioning of the weapon could be traced if later involved in a crime.

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

However, a restrictive application of these definitions would not describe the frame or receiver of most firearms currently in circulation in the United States. Most modern weapon designs, including semiautomatic rifles and pistols with detachable magazines, have a split or multi-piece receiver where the relevant fire control components are housed by more than one part of the weapon (

e.g.,

the upper receiver and lower receiver of an AR-15 rifle), or incorporate a striker to fire the weapon, rather than a hammer.

In the past few years, some courts have treated the regulatory definition of “firearm frame or receiver” as inflexible when applied to the lower portion of the AR-15-type rifle, one of the most popular firearms in the United States. If broadly followed, that result could mean that as many as 90 percent of all firearms (

i.e.,

with split frames or receivers, or striker-fired) in the United States would not have any frame or receiver subject to regulation. Furthermore, technological advances have also made it easier for companies to sell firearm parts kits, standalone frame or receiver parts, and easy-to-complete frames or receivers to unlicensed persons, without maintaining any records or conducting a background check. These parts kits, standalone frame or receiver parts, or partially complete frames or receivers enable individuals to make firearms quickly and easily. Such privately made firearms (“PMFs”), when made for personal use, are not required by the GCA to have a serial number placed on the frame or receiver, making it difficult for law enforcement to determine where, by whom, or when they were manufactured, and to whom they were sold or otherwise transferred. Because of the difficulty with tracing illegally sold or distributed PMFs, those firearms are also commonly referred to as “ghost guns.”

For these many reasons, ATF is promulgating a rule that would bring clarity to the definition of “frame or receiver” by providing an updated, more comprehensive definition. On May 21, 2021, the Department published a Notice of Proposed Rulemaking (“NPRM”) in the

Federal Register

, 86 FR 27720, proposing to redefine the term “frame or receiver” as that which provides housing or a structure to hold or integrate one or more fire control components. In light of the comments received, this final rule revises the proposed definition of “frame or receiver” so that a “frame” is applicable to a handgun, and variants thereof, and a “receiver” is applicable to a rifle, shotgun, or projectile weapon other than a handgun, and variants thereof. Moreover, “frame or receiver” will be defined to describe only a single part

that provides housing or a structure for one specific, primary fire control component of weapons that expel a projectile, or one specific, primary internal sound reduction component of firearm mufflers or silencers. The final rule also defines the meaning of “variants” and “variants thereof.” The final rule provides detailed examples along with pictures identifying the frame or receiver of a variety of common models under the updated definition. The final rule also exempts from the new definitions and marking requirements existing split frame or receiver designs in which a part was previously classified by ATF as the firearm “frame or receiver” and provides examples and pictures of select exempted frames or receivers, such as AR-15/M-16 variant firearms. The only exception to “grandfathering” will be for partially complete, disassembled, or nonfunctional frames or receivers, including weapon or frame or receiver parts kits, that ATF did not classify as firearm “frames or receivers” as defined prior to this rule.

The final rule also specifies, with more clarity and examples than the NPRM, how these terms apply to multi-piece frames or receivers (

i.e.,

those that may be disassembled into multiple modular subparts), to firearm mufflers and silencers, to partially complete, disassembled, or nonfunctional frames or receivers, including frame or receiver parts kits, and to frames or receivers that are destroyed. The final rule also provides detailed examples of when such items are considered readily completed, assembled, restored, or otherwise “converted” to function as a frame or receiver. At the same time, the final rule makes clear that articles that have not yet reached a stage of manufacture where they are clearly identifiable as an unfinished component of a frame or receiver (

e.g.,

unformed blocks of metal, liquid polymers, or other raw materials) are not frames or receivers.

Consistent with the GCA, and to ensure proper licensing, marking, recordkeeping, and background checks with respect to certain weapon parts kits, the final rule adopts the proposed clarification of the term “firearm” to include weapon (

e.g.,

pistol, revolver, rifle, or shotgun) parts kits that are designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive. This rule also finalizes, with minor changes, the proposed definition of “privately made firearm.” It amends the regulations to require that all firearms privately manufactured or “made” by nonlicensees without identifying markings that are taken into inventory by licensees be identified (or marked) and recorded so that they may be traced by law enforcement through their records if they are later involved in crime. As with the NPRM, the final rule does not mandate unlicensed persons to mark their own PMFs for personal use, or when they occasionally acquire them for a personal collection or sell or transfer them from a personal collection to unlicensed in-State residents consistent with Federal, State, and local law.

In addition, the rule finalizes the proposed amendments to the term “gunsmith” to include persons who engage in the business of identifying firearms for nonlicensees, thus ensuring greater access to professional marking services for PMFs. The final rule clarifies the gunsmithing rules proposed in the NPRM by stating the following: (1) Licensed firearms dealers (in addition to licensed manufacturers and importers) may conduct same-day adjustments or repairs of all firearms, including PMFs, without taking them into inventory, provided they are returned to the person from whom they were received; (2) nonlicensees may mark PMFs for a licensee under the licensee's direct supervision; and (3) licensees may adopt an existing unique identification number previously placed on a PMF by a nonlicensee under certain conditions.

In response to comments, the final rule permits licensed manufacturers to adopt the serial number and other identifying markings previously placed on a firearm without a variance from ATF, provided the firearm has not been sold, shipped, or otherwise disposed of to a person who is not a licensed manufacturer, superseding ATF Ruling 2009-5. The rule permits licensed manufacturers to perform gunsmithing services on existing, marked firearms without marking or obtaining a marking variance, superseding ATF Ruling 2010-10. It also finalizes, with some modifications, the proposed definition of the term “importer's or manufacturer's serial number” to help ensure that the serial number and associated identifying markings required to be placed on a firearm, including those placed on a PMF or an ATF-issued serial number,

are considered the “importer's or manufacturer's serial number” protected by 18 U.S.C. 922(k), which prohibits possession or receipt of a firearm that has had the importer's or manufacturer's serial number removed, obliterated, or altered.

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.

The final rule adopts, with minor clarifying changes, the proposed clarifications to the marking and recordkeeping requirements for licensees. First, the rule finalizes the definitions for “complete weapon” and “complete muffler or silencer device,” and adds a new definition for “multi-piece frame or receiver” under the new definition of “frame or receiver.” The rule also specifies a reasonable time period in which a complete weapon or a complete muffler or silencer device, or the frame or receiver of a weapon or device (including a modular subpart of a multi-piece frame or receiver), must be marked with a serial number and other identifying information and recorded. Second, the rule finalizes the proposed updates to the information required to be marked on the frame or receiver, clarifies the meaning of the marking terms “identify,” “legibly,” and “conspicuously,” and authorizes firearms licensees to adopt identifying markings in the manufacturing process. Third, the rule finalizes the proposal to require all licensees to consolidate their records of manufacture, acquisition, and disposition of firearms, and to eliminate duplicate recordkeeping entries. Fourth, with respect to parts defined as firearm mufflers or silencers, which are difficult to mark and record, this rule finalizes with minor clarifying changes the proposed amendments that allow for them to be transferred between licensees qualified under the NFA for purposes of further manufacture or repair of complete devices without immediately marking and registering them in the National Firearms Registration and Transfer Record (“NFRTR”). Fifth, the rule finalizes with minor clarifying changes the proposed amendments that set forth the process by which persons may voluntarily seek a determination from ATF on whether an item or kit they wish to manufacture or possess is a firearm or armor piercing ammunition subject to marking, recordkeeping, and other applicable Federal laws and regulations. These amendments to the regulations will help ensure that firearms can be traced efficiently and effectively by law enforcement through the records of licensees, and help prevent the acquisition of easy-to-complete firearms by prohibited persons and terrorists.

Lastly, the rule finalizes with minor changes the proposed requirement that all licensees retain their records until the business or licensed activity is discontinued, either on paper or in an

electronic format approved by the Director of ATF (“Director”), at the business or collection premises readily accessible for inspection. This includes authorization of licensees to store their “closed out” paper records and forms older than 20 years at a separate warehouse, which would be considered part of the business or collection premises for this purpose and subject to inspection. These provisions will enhance public safety by ensuring that acquisition and disposition records of all active licensees are not destroyed after 20 years and will remain available to law enforcement for tracing purposes.

B. Summary of Costs and Benefits

The final rule clarifies which firearms are subject to regulation under the GCA and NFA and associated licensing, marking, and recordkeeping requirements. The rule requires persons who engage in the business of dealing in weapon and frame or receiver parts kits defined as firearms to be licensed, mark the frames or receivers within such kits with serial numbers and other marks of identification, and maintain records of their acquisition and disposition. The provisions of these statutes and implementing regulations are designed to increase public safety by, among other things, preventing prohibited persons from acquiring firearms and allowing law enforcement to trace firearms involved in crime.

To minimize disruption and cost to the licensed firearms industry as much as possible, and in keeping with the public safety goals of the rule, this rule grandfathers existing complete frame or receiver designs previously determined by the Director to be the firearm “frame or receiver” of a given weapon. It does not grandfather partially complete, disassembled, or nonfunctional frames or receivers, including weapon or frame or receiver parts kits, that ATF did not classify as firearm “frames or receivers” as previously defined. ATF estimates that the 7 percent annualized cost of this rule is $14.3 million.

II. Background

The Attorney General is responsible for enforcing the Gun Control Act of 1968, as amended, and the National Firearms Act of 1934, as amended.

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

26 U.S.C. 7801(a)(2); 28 U.S.C. 599A(b)(1), (c)(1); 28 CFR 0.130(a)(1)-(2); T.D. Order No. 221(2)(a), (d), 37 FR 11696-97 (June 10, 1972). Accordingly, the Department and ATF have promulgated regulations to implement the GCA and NFA.

See

27 CFR parts 478, 479.

NFA provisions still refer to the “Secretary of the Treasury.”

See generally

26 U.S.C. ch. 53. However, the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, transferred the functions of ATF from the Department of the Treasury to the Department of Justice, under the general authority of the Attorney General. 26 U.S.C. 7801(a)(2); 28 U.S.C. 599A(c)(1). Thus, for ease of reference, this final rule refers to the Attorney General throughout.

see also J&G Sales Ltd.

Truscott,

473 F.3d 1043, 1045-46 (9th Cir. 2007) (describing the tracing process).

See

18 U.S.C. 923(c); 27 CFR 478.125a(a)(4) (licensed manufacturers, importers, and dealers must record in a bound volume a complete description of firearms disposed of from their personal collections); 18 U.S.C. 923(g)(1)(A), (D); 27 CFR 478.125(e), (f) (licensed dealer and collector disposition records must contain a complete description of the firearm); 132 Cong. Rec. 15229 (1986) (Statement of Rep. Hughes) (“In order for the law enforcement Firearm Tracing Program to operate, some minimal level of recordkeeping is required [for sales from dealers' personal collections]. Otherwise, we will not have tracing capability. This provision simply requires that a bound volume be maintained by the dealer of the sales of firearms which would include a complete description of the firearm, including its manufacturer, model number, and its serial number and the verified name, address, and date of birth of the purchaser. This is only a minimal inconvenience for the dealer, yet obtaining and recording this information is critical to avoid serious damage to the Firearm Tracing Program.”).

Because PMFs lack serial numbers and other markings from a licensed manufacturer, ATF has found it extremely difficult to successfully complete traces of PMFs. Out of the approximately 45,240 submitted traces of suspected PMFs mentioned above, ATF could only successfully complete approximately 445 of those attempted traces to an individual unlicensed purchaser.

Successful traces of PMFs have been completed in these rare instances primarily because licensees who acquired PMFs sometimes recorded a serial number that had been voluntarily engraved by the manufacturer on a commercially produced handgun slide, barrel, or another firearm part, which are not required by the GCA to be marked.

Source: ATF Office of Strategic Intelligence and Information. These numbers (as of January 21, 2022) include traces for both U.S. and international law enforcement agencies.

In the NPRM, the Department noted that, with the rapid emergence of PMFs in recent years, licensees have sought clarity from ATF on how PMFs may be accepted and recorded. 86 FR at 27724-25. Licensees engaged in the business of dealing in firearms are subject to various recording and reporting requirements, including completion of a Firearms Acquisition and Disposition Record (“A&D Record”) to record their firearms inventory,

a Firearms Transaction Record, ATF Form 4473 (“Form 4473”), for disposition of a firearm to an unlicensed person,

a Federal Firearms Licensee Theft/Loss Report, ATF Form 3310.11, upon discovery of the theft or loss of firearms,

and a Report of Multiple Sale or Other Disposition of Pistols and Revolvers, ATF Form 3310.4, to document sales or other dispositions of multiple pistols or revolvers within five consecutive business days to the same person.

These forms require licensees to record the manufacturer and importer (if any), model (if designated), serial number, type, and caliber or gauge of the firearm.

27 CFR 478.125(e).

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

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

18 U.S.C. 923(g)(3)(A); 27 CFR 478.126a. Pursuant to 18 U.S.C. 923(g)(5)(A), licensed dealers along the Southwest U.S. border are also required by demand letter to report to ATF multiple sales of certain rifles during five consecutive business days to the same person on ATF Form 3310.12, including the rifle's serial number, manufacturer, importer, model, and caliber. Also under that statute, licensed dealers with 25 or more trace requests with a “time-to-crime” of three years or less must report to ATF the acquisition date, model, caliber or gauge, and the serial number of a secondhand firearm transferred by the dealer.

As applied to PMFs, licensees acquiring them might only record a “type” of firearm (

e.g.,

pistol, revolver, rifle, or shotgun) in their A&D records and on Forms 4473. With such limited information, it will become increasingly difficult, if not impossible, for licensees and ATF (during inspections) to match accurately and reliably the PMFs in the firearms inventory with those recorded in required A&D records, or to determine whether the PMFs recorded as disposed on Forms 4473 are those recorded as disposed in the A&D records.

Likewise, licensees and ATF

will have difficulty accurately determining which PMFs were stolen or lost from inventory. It will also be difficult for police to locate stolen PMFs in the business inventories of pawnbrokers, for example,

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

United States

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).

Most states require pawnbrokers to record or report any serial number and other identifying markings on pawned merchandise so that police can determine their origin.

See

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

Assuming a PMF can be successfully traced to a Federal firearms licensee (“FFL”) or that a correct Form 4473 can be located, the NPRM explained that the ATF Form 4473 is the primary evidence used to prosecute straw purchasers who buy firearms from FFLs typically on behalf of prohibited persons, such as felons or illegal firearms traffickers, and other persons who could use the firearms to commit violent crimes.

The form is typically the key evidence that the straw purchaser who bought the firearm (and who can pass a background check) made a false statement to the FFL concerning the identity of the actual purchaser when acquiring that firearm, in violation of 18 U.S.C. 922(a)(6) and 924(a)(1)(A), or State law.

But as unmarked and difficult-to-trace PMFs are transacted throughout the commercial marketplace, law enforcement will have difficulties prosecuting straw purchasers for making false statements because it will be harder to prove that the firearms acquired under false pretenses on a Form 4473 were the ones found in the hands of the true purchaser.

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.

See United States

Marzzarella,

614 F.3d 85, 100 (3d Cir. 2010) (“The direct tracing of the chain of custody of firearms involved in crimes is one useful means by which serial numbers assist law enforcement. But serial number tracing also provides agencies with vital criminology statistics—including a detailed picture of the geographical source areas for firearms trafficking and “time-to-crime” statistics which measure the time between a firearm's initial retail sale and its recovery in a crime—as well as allowing for the identification of individual dealers involved in the trafficking of firearms and the matching of ballistics data with recovered firearms” (footnotes omitted).);

Following the Gun: Enforcing Federal Laws Against Firearms Traffickers,

ATF at 1, 26 (2000) (serial number obliteration is a clear indicator of firearms trafficking to, among other criminals, armed narcotics traffickers).

See, e.g., Abramski

United States,

573 U.S. 169, 192 (2014);

Marshall

Virginia,

822 SE2d 389, 392-93 (Va. Ct. App. 2019);

Shirley

Glass,

297 Kan. 888 (2013);

Pennsylvania

Baxter,

956 A.2d 465, 472 (Pa. Super. Ct. 2008).

See, e.g., United States

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

McCurdy,

634 F. Supp. 2d 118, 121-22, 126 (D. Me. 2009) (denial of a motion for a new trial discussing whether the firearm sold as documented on the ATF Form 4473 and the firearm introduced at trial were the same).

The lack of firearm description information in theft/loss reports makes it difficult for ATF to match recovered firearms with those reported as lost or stolen, thereby hindering ATF's efforts to enforce the numerous provisions of the GCA that prohibit thefts.

See

18 U.S.C. 922(i) (transporting or shipping stolen firearms in interstate or foreign commerce); 18 U.S.C. 922(j) (receiving, possessing, concealing, storing, bartering, selling, disposing, or pledging or accepting as security for a loan any stolen firearm which has moved in interstate or foreign commerce); 18 U.S.C. 922(u) (stealing a firearm that has been shipped or transported in interstate or foreign commerce from the person or premises of an FFL); 18 U.S.C. 924(

) (stealing a firearm which is moving in or has moved in interstate commerce); 18 U.S.C. 924(m) (stealing a firearm from a licensee).

C. Advanced Notice of Proposed Rulemaking on Identification Markings Placed on Firearm Silencers and Firearm Mufflers

The NPRM noted that on May 4, 2016, the Department published an advance notice of proposed rulemaking (“ANPRM”) in the

Federal Register

. 86 FR 27728 n.50 (citing 81 FR 26764). The ANPRM was issued in response to a petition filed on behalf of the National Firearms Act Trade and Collectors Association (“NFATCA”), a trade group representing the firearms and import community. The petitioner requested that the relevant regulations be amended to require that a silencer be marked on the outer tube as opposed to other locations, such as an end cap that might be damaged when a projectile passes through it, unless a variance is granted by the Director on a case-by-case basis for good cause. ATF found that the petitioner raised valid concerns.

Under the GCA, licensed manufacturers and importers must identify the frame or receiver of each firearm, including a firearm muffler or silencer, with a serial number in accordance with regulations. 18 U.S.C. 921(a)(3)(C), 923(i). The NFA requires firearm manufacturers, importers, and makers to identify each firearm, including a firearm muffler or silencer, with a serial number and such other identification as may be prescribed by regulations. 26 U.S.C. 5842(a), 5845(a)(7). Because the NFA defines each individual part of a firearm muffler or silencer as a “firearm”

that must be registered in the NFRTR, the regulations currently assume that every part defined as a silencer must be marked in order to be registered, and expressly require that each part be marked whenever sold, shipped, or otherwise disposed of even though it may have been installed by a qualified licensee within a complete muffler or silencer device.

A firearm “muffler or silencer” is defined to include “any combination of parts” designed and intended for the use in assembling or fabricating a firearm silencer or muffler and “any part intended only for use in such assembly or fabrication.” 18 U.S.C. 921(a)(24); 26 U.S.C. 5845(a)(7); 27 CFR 478.11, 479.11. This rule defines the term “complete muffler or silencer device” not to exempt individual silencer parts from the definition of firearm “muffler or silencer” subject to the requirements of the NFA, but to advise industry members when those individual silencer parts must be marked and registered in the NFRTR when they are used in assembling, fabricating, or repairing a muffler or silencer device.

See

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

The ANPRM explained that, along with industry members, ATF considers the term “outer tube” to mean the largest external part of a silencer and is that portion of a silencer that encapsulates all components of the silencing unit, and which contains and controls the expansion of the escaping gases. 81 FR at 26765. ATF explained that placing all required markings on the outer tube of a completed firearm silencer or firearm muffler is the accepted industry standard. In addition, ATF discussed that requiring identification markings to be placed on a single part provides consistency of markings throughout the industry and eliminates the need to re-mark a device in the event an end cap bearing the markings is damaged and requires replacement. ATF believed that a more specific marking requirement for firearm silencers, such as the outer tube, would lead to greater uniformity, improve public safety, and decrease firearms crimes, including firearms trafficking.

See id.

The ANPRM was used to solicit comments to determine if an amendment to the regulations that would require placement of

identification markings on the outer tube of firearm silencers and mufflers was warranted. In response to the ANPRM, ATF received 48 comments. A few commenters supported issuance of a proposed rule because they believed it would not violate any constitutional rights under the Second Amendment, would enhance public safety for the reasons ATF stated, and would reduce confusion within the industry without being a financial burden because it is already a standard practice with many manufacturers. The majority of commenters expressed opposition and did not want ATF to proceed with any further rulemaking. Specific reasons for their objection to a proposed rule included a belief that: (1) ATF lacks legal authority to specify where markings on silencers must be located and that such a rule would violate the Second Amendment; (2) the initial NFATCA petition is outdated; (3) there is no data to support that a new rule would enhance public safety or reduce firearms trafficking; (4) a new regulation is unnecessary as the industry is already complying; (5) it is not feasible to comply with marking on the outer tube of the silencer with specific designs; (6) the proposed idea hinders technological advances and future designs; (7) it would create confusion and definitional problems because the definition of outer tube is outdated; and (8) the industry and public would incur financial burdens.

Other commenters offered suggestions about outer tube replacement options especially because silencer tubes wear out over time. They suggested that a rule would be reasonable if ATF authorizes manufacturers to repair or replace damaged silencer tubes and engrave the new tube with the original serial number. Commenters also suggested alternative locations for silencer markings such as on end caps. They believed that markings should be placed on the major portion of the silencer, which could be the end cap or any section of the tube. They stressed that the outer tube is thin and there is a greater risk of burning through the metal when engraving and that end caps have greater thickness to work with when engraving.

Based on further review and the comments received in response to the ANPRM, ATF incorporated a proposed definition of “frame or receiver” as it applies to firearm mufflers and silencers in the NPRM to clarify when and how silencer parts are to be marked and registered. 86 FR 27720.

III. Notice of Proposed Rulemaking

On May 21, 2021, the Department published in the

Federal Register

an NPRM entitled “Definition of `Frame or Receiver' and Identification of Firearms,” 86 FR 27720, proposing changes to various regulations in 27 CFR parts 447, 478, and 479. Overall, the NPRM proposed amending ATF's regulations to clarify the definition of “firearm” and to provide a more comprehensive definition of “frame or receiver” so that these terms more accurately reflect how most modern-day firearms are produced and function, and so that the courts, the firearms industry, and the public at large would no longer misinterpret the term to mean that most firearms in circulation have no parts identifiable as a frame or receiver. The NPRM also proposed new terms and definitions to account for technological developments and modern terminology in the firearms industry, as well as proposed amendments to the marking and recordkeeping requirements that would be necessary to implement these definitions.

A. Definition of “Firearm”

In the NPRM, the Department proposed adding a sentence at the end of the definition of “firearm” in 27 CFR 478.11 to reflect existing case law, providing that “[t]he term shall include a weapon parts kit that is designed to or may readily be assembled, completed, converted, or restored to expel a projectile by the action of an explosive.” However, the proposed amendment was not intended to affect the classification of a weapon, including a weapon parts kit, in which the frame or receiver (as defined in the proposed rule) of such weapon is properly destroyed.

See

86 FR at 27726, 27729-30. Therefore, another sentence was proposed to be added at the end of the definition of “firearm” to provide that “[t]he term shall not include a weapon, including a weapon parts kit, in which each part defined as a frame or receiver of such weapon is destroyed.”

Id.

at 27726.

The Department explained in the NPRM that “firearm” as defined under the GCA, 18 U.S.C. 921(a)(3) and 27 CFR 478.11, includes inoperable weapons even though they will not expel a projectile by the action of an explosive at the time of sale or distribution if they are “

designed to

”

or “

may readily be converted

”

to expel a projectile by the

action of an explosive. Weapon parts kits, or aggregations of weapon parts, some of which contain all of the components necessary to complete a functional weapon within a short period of time, have been increasingly sold to individuals either directly from manufacturers of the kits or retailers, without background checks or recordkeeping. 86 FR at 27726. Some of these firearm kits include jigs, templates, and tools that allow the purchaser to complete the weapon fairly or reasonably efficiently, quickly, and easily to a functional state. Such weapon parts kits or aggregations of weapon parts that are

designed to

may readily be converted to

expel a projectile by the action of an explosive are also “firearms” under 18 U.S.C. 921(a)(3)(A).

This proposed addition makes explicit that manufacturers and sellers of such kits or aggregations of weapon parts are subject to the same regulatory requirements applicable to the manufacture or sale of fully completed and assembled firearms.

See

86 FR at 27726.

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

Hardin,

889 F.3d 945, 946-47, 949 (8th Cir. 2018) (pistol with broken trigger and numerous missing internal parts was a weapon designed to expel a projectile by the action of an explosive);

United States

Dotson,

712 F.3d 369, 370-71 (7th Cir. 2013) (saying, in ruling that a pistol with corroded, missing, and broken components was a “firearm,” that “[a]n airplane is designed to fly; a defect in manufacture or maintenance that prevents it from flying does not alter its design”);

United States

Davis,

668 F.3d 576, 577 (8th Cir. 2012) (holding that a pistol with no trigger was a “firearm” within the meaning of section 2K2.1(a)(3)(A)(i) of the Sentencing Guidelines and applying “the same reasoning [that courts have applied in section 921(a)(3) cases] to Guidelines provisions that incorporate the § 921(a)(3) definition”);

United States

Counce,

445 F.3d 1016, 1018 (8th Cir. 2006) (handgun with missing safety);

United States

Rivera,

415 F.3d 284, 285-87 (2d Cir. 2005) (pistol with a broken firing pin and flattened firing-pin channel);

United States

Morales,

280 F. Supp. 2d 262, 272-73 (S.D.N.Y. 2003) (partially disassembled Tec-9 pistol was designed to expel a projectile);

United States

Adams,

137 F.3d 1298, 1300 & n.2 (11th Cir. 1998) (potentially inoperable shotgun);

United States.

Brown,

117 F.3d 353 (7th Cir. 1997) (holding that a gun with no firing pin was a “firearm” within the meaning of section 2B3.1(b)(2)(C) of the Sentencing Guidelines, and discussing analogous cases interpreting section 921(a)(3)(A));

United States

Reed,

114 F.3d 1053 (10th Cir. 1997) (shotgun with broken breech bolt);

United States

Hunter,

101 F.3d 82 (9th Cir. 1996) (holding that the sentence enhancement for use of a semiautomatic weapon in section 924(c) applied to a pistol with broken firing pin);

United States

Yannott,

42 F.3d 999, 1005-07 (6th Cir. 1994) (shotgun with broken firing pin);

United States

Ruiz,

986 F.2d 905, 910 (5th Cir. 1993) (revolver with hammer filed down);

United States

York,

830 F.2d 885, 891 (8th Cir. 1987) (revolver with no firing pin and cylinder did not line up with barrel);

United States

Thomas,

No. 17-194 (RDM), 2019 WL 4095569, at *4 (D.D.C. Aug. 29, 2019) (in ruling that a revolver missing its hammer, hammer screw, trigger, cylinder stop, hand, ejector rod housing, base pin, screw, nut, spring, loading gate detent and spring and miscellaneous screws was a “firearm,” the court said: “[t]he Titanic was, after all, `designed' to be unsinkable”).

But see Dotson,

712 F.3d at 371 (a Beretta pistol redesigned to be a cigarette lighter);

Rivera,

415 F.3d at 286-87 (“[A] gun with a barrel filled with lead, maybe for use as a theatrical prop, might perhaps no longer be deemed `designed to' or `readily be converted' to fire a bullet.”);

United States

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).

See, e.g., United States

Mullins,

446 F.3d 750, 756 (8th Cir. 2006) (starter gun that can be modified in less than one hour by a person without any specialized knowledge to fire may be considered “readily convertible” under the GCA);

United States

16,179 Molso Italian .22 Caliber Winlee Derringer Convertible Starter Guns,

443 F.2d 463 (2d Cir. 1971) (starter guns converted in no more than 12 minutes to fire live ammunition were readily convertible under the GCA);

United States

Morales,

280 F. Supp. 2d 262, 272-73 (S.D.N.Y. 2003) (partially disassembled Tec-9 pistol that could be assembled within a short period of time could readily be converted to expel a projectile).

Cf. United States

Dodson,

519 F. App'x 344, 352-53 (6th Cir. 2013) (gun that was restored with 90 minutes of work, using widely available parts and equipment and common welding techniques, fit comfortably within the readily restorable standard of 26 U.S.C. 5845(b));

United States

TRW Rifle 7.62×51mm Caliber, One Model 14 Serial 593006,

447 F.3d 686, 692 (9th Cir. 2006) (a two-hour restoration process using ordinary tools, including a stick weld, is within the ordinary meaning of “readily restored”);

United States

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

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

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

Catanzaro,

368 F. Supp. 450, 453 (D. Conn. 1973) (a sawed-off shotgun was “readily restorable to fire” where it could be reassembled in one hour and the necessary missing parts could be obtained at a Smith & Wesson plant).

But see United States

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).

See, e.g., United States

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 § 921(a)(3)(A)” because the “kits contained all of the necessary components to assemble a fully functioning firearm with relative ease”);

United States

Stewart,

451 F.3d 1071, 1072-73, 1073 n.2 (9th Cir. 2006) (upholding district court's finding that .50 caliber rifle kits with incomplete receivers were “firearms” under section 921(a)(3)(A) because they could easily be converted to expel a projectile);

United States

Theodoropoulos,

866 F.2d 587, 595 n.3 (3d Cir. 1989),

overruled in part on other grounds by United States

Price,

76 F.3d 526, 528 (3d Cir. 1996) (disassembled machine pistol that that could easily be made operable was a firearm under section 921(a)(3)(A));

United States

Morales,

280 F. Supp. 2d 262, 272-73 (S.D.N.Y. 2003) (partially disassembled Tec-9 pistol that could be assembled within short period of time could readily be converted to expel a projectile was a firearm under section 921(a)(3)(A));

United States

Randolph,

No. 02 CR. 850-01 (RWS), 2003 WL 1461610, at *2 (S.D.N.Y. Mar. 20, 2003) (gun consisting of “disassembled parts with no ammunition, no magazine, and a broken firing pin, making it incapable of being fired without replacement or repair” was a “firearm” under section 921(a)(3)(A) because it could be readily converted to expel a projectile and included the frame or receiver of such a weapon);

cf. United States

Annis,

446 F.3d 852, 857 (8th Cir. 2006) (partially disassembled rifle that could easily be made operational was a firearm under sentencing guidelines);

United States

Ryles,

988 F.2d 13, 16 (5th Cir. 1993) (same with disassembled shotgun that could have been readily converted to an operable firearm);

Enamorado

United States,

No. C16-3029-MWB, 2017 WL 2588428, at *6 (N.D. Iowa June 14, 2017) (same with disassembled .45 caliber handgun that could easily be reassembled).

B. Definition of “Frame or Receiver”

The Department proposed to revise the definition of “frame or receiver” with a multi-part definition. First proposed was a general definition of “frame or receiver” with nonexclusive examples that illustrated the definition. This was followed by four proposed supplements, described below, that further explained the meaning of the term “frame or receiver” for certain firearm designs and configurations. Although the proposed definition was intended to more broadly define the term “frame or receiver” than the current definition, it was not intended to alter any prior determinations by ATF regarding which specific part of a given weapon it considered the frame or receiver. The NPRM also proposed to codify in the regulations the factors ATF considers when classifying the frame or receiver of a firearm.

1. General Definition of “Frame or Receiver”

As a threshold matter, the NPRM proposed that the new definition, with a partial exception for an internal frame or chassis, make clear that each frame or receiver be visible to the exterior when the complete weapon is assembled so that licensees and law enforcement can quickly and easily identify the markings. Next, the NPRM proposed defining the term “frame or receiver” more broadly as a part that provides housing or a structure designed to hold or integrate any fire control component, which would have included, at a minimum, any housing or holding structure for a hammer, bolt, bolt carrier, breechblock, cylinder, trigger mechanism, firing pin, striker, or slide rails. However, the proposed definition would not have been limited to those particular fire control components

and was proposed to be general enough to encompass changes in technology and parts terminology. For further clarity, four nonexclusive examples with illustrations of common single-framed firearms were provided.

See

86 FR at 27727, 27742. Finally, the proposed definition stated that persons who may acquire or possess a part now defined as a frame or receiver that is identified with a serial number must presume, absent an official determination by ATF or other reliable evidence to the contrary, that the part is a firearm frame or receiver without further guidance.

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.

2. Definition of “Firearm Muffler or Silencer Frame or Receiver”

The first proposed supplement to define the term “frame or receiver” as it applies to a “firearm muffler or silencer frame or receiver” and to add a new term “complete muffler or silencer device” is further discussed in Section III.D of this preamble. The NPRM proposed that in the case of a firearm muffler or firearm silencer, the frame or receiver is a part of the firearm that is visible from the exterior of a completed device and provides a housing or a structure designed to hold or integrate one or more essential internal components of the device.

As described in Section II.C of this preamble, the GCA's marking requirement and the GCA/NFA's definition of firearm “muffler or silencer” (sometimes referred to as a “sound suppressor”) and its marking requirements have caused confusion and concern among many silencer manufacturers over the years. The NPRM explained that some silencer parts defined as “silencers,” such as baffles, are difficult for manufacturers to mark and listed examples of the ATF forms that manufacturers would have difficulty filing and processing in a timely manner. 86 FR at 27728. The Department also explained that it makes little sense to mark all silencer parts for tracing purposes when the outer tube or housing of the complete device is marked and registered.

Id.

at 27727-28.

For these reasons, the new definitions were proposed to clarify for manufacturers and makers of complete muffler or silencer devices that they need only mark the one part of the device defined as the frame or receiver under the proposed rule. However, individual muffler or silencer parts were proposed to be marked if they are disposed of separately from a complete

device unless transferred by manufacturers qualified under the NFA to other qualified licensees for the manufacture or repair of complete devices.

This rule is consistent with ATF enforcement policy.

See

footnote 58,

infra.

3. Definition of “Split or Modular Frame or Receiver”

The second proposed supplement to the general definition sought to capture the majority of firearms that now use a split design as discussed above. It sought to clarify that even though a firearm, including a silencer, may have more than one part that falls within the definition of “frame or receiver,” ATF may classify a specific part or parts to be the “frame or receiver” of a particular weapon. It then set forth the various factors ATF would consider in making this determination with no single factor controlling.

See

86 FR at 27728-29, 27743. It also proposed the clarification that “[f]rames or receivers of different weapons that are combined to create a similar weapon each retain their respective classifications as frames or receivers provided they retain their original design and configuration.”

Id.

at 27734.

To ensure that the proposed definition of “split or modular frame or receiver” did not affect existing ATF classifications that specified a single component as the frame or receiver, the definition included a nonexclusive list of common weapons with a split or modular frame or receiver configuration for which ATF previously determined a specific part to be the frame or receiver.

See id.

at 27729, 27743-46. The NPRM explained that a manufacturer or importer of one of these firearm designs, as they would exist as of the final rule's date of publication, could refer to this list to know which part is the frame or receiver, thereby allowing the manufacturer or importer to mark a single part without seeking a determination from ATF. However, if there was to be a present or future split or modular design for a firearm that was not comparable to an existing classification, then the proposed definition of “frame or receiver” would advise, absent a variance or classification from ATF, that more than one part is the frame or receiver subject to marking and other requirements.

4. Definition of “Partially Complete, Disassembled, or Inoperable Frame or Receiver”

The third supplement proposed to define “frame or receiver” as including frames or receivers that are partially complete, disassembled, or inoperable, or a frame or receiver that has reached a stage in manufacture where it may readily be completed, assembled, converted, or restored to a functional state. The NPRM stated that, to determine this status, “the Director may consider any available instructions, guides, templates, jigs, equipment, tools, or marketing materials.” 86 FR at 27729, 27746. “Partially complete,” for purposes of this definition, was proposed to mean a forging, casting, printing, extrusion, machined body, or similar article at a stage in manufacture where it is clearly identifiable as an unfinished component part of a weapon.

The NPRM explained that this supplemental definition aimed to address

when

an object becomes a frame or receiver such that it is a regulated article. The NPRM stated that partially complete or unassembled frames or receivers, commonly called “80% receivers,”

are often sold in kits where the frame or receiver can readily be completed or assembled to a functional state.

See id.

at 27729 n.54. The Department stated that the supplemental definition is necessary for clarity because companies are not running background checks or maintaining transaction records when they manufacture and sell these kits. Accordingly, prohibited persons have easily obtained them

and, when recovered, they are nearly impossible to trace. The proposed definition also sought to make clear that unformed blocks of metal, and other similar articles only in a primordial state

would not—without more processing—be considered a “partially complete” frame or receiver that is captured under the definition of “frame or receiver.”

The term “80% receiver” is a term used by some industry members, the public, and the media to describe a frame or receiver that has not yet reached a stage of manufacture to be classified as a “frame or receiver” under Federal law. However, that term is neither found in Federal law nor accepted by ATF.

See

86 FR at 27729 n.55;

see also United States

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.”).

These changes are consistent with ATF enforcement policy.

See NFA Handbook,

ATF E-Publication 5320.8, sec. 7.4.6, p.46, sec. 9.5.1, p. 60 (revised April 2009). With regard to silencer repairs, in order to avoid any appearance that an unlawful “transfer” has taken place, ATF recommends that an Application for Tax Exempt Transfer and Registration of Firearm, ATF Form 5, be submitted for approval prior to conveying the firearm for repair or identifying the firearm. The conveyance may also be accomplished by submission of a letter from the registrant to the qualified FFL advising the FFL that the registrant is shipping or delivering the firearm for repair/identification and describing the repair or identification. Return of the registered silencer to the registrant may likewise be accomplished by submission of an ATF Form 5 or by a letter from the FFL to the registrant that accompanies the silencer.

10. Voluntary Classification of Firearms and Armor Piercing Ammunition

As described in the NPRM, for many years, ATF has acted on voluntary requests from persons, particularly manufacturers who are developing new products, by issuing determinations or “classifications” on whether an item is a “firearm” or “armor piercing ammunition” as defined in the GCA or NFA. The Department proposed to clarify the existing process by which persons may voluntarily submit such requests to ATF. The NPRM proposed that requests be submitted in writing, or on an ATF form, executed under the penalties of perjury with a complete and accurate description of the item, the name and address of the manufacturer or importer thereof, and a sample of such item for examination along with any instructions, guides, templates, jigs, equipment, tools, or marketing materials that are made available to the purchaser or recipient of the item. Upon completion of the examination, ATF would return the sample to the person who made the request unless a determination was made that return of the sample would be, or place the person, in violation of law. The NPRM also proposed to codify ATF's policy of not evaluating a firearm accessory or attachment “unless it is installed on the firearm(s) in the configuration for which it is designed and intended to be used,” and further explained that the Director's determination would not be applicable to or authoritative with respect to any other sample, design, model, or configuration. 86 FR at 27734.

I. Recordkeeping

1. Acquisition and Disposition Records

The Department proposed minor amendments to 27 CFR 478.122, 478.123, 478.125, and 478.125a, pertaining to the acquisition and disposition records maintained by importers, manufacturers, and dealers. Due to the possibility that a firearm may have more than one frame or receiver as defined in the proposed rule, and the changes to marking regulations, the rule proposed to make certain words plural, (

e.g.,

manufacturer(s), importer(s), and serial number(s)) in the recordkeeping regulations for the formatting of FFL records, as applicable. These proposed changes were considered necessary to ensure that FFLs record more than one manufacturer, importer, or serial number, if applicable, when acquiring or disposing of firearms with multiple components marked as the frame or receiver, or firearms that have been remanufactured or reimported by another licensee. This is consistent with prior ATF guidance to the firearms industry.

See

FFL Newsletter, May 2012, at 5 (“If a firearm is marked with two manufacturer's names, or multiple manufacturer and importer names, FFLs should record each manufacturers' and importers' [sic] name in the A&D record.”).

The rule also proposed to amend 27 CFR 478.122 and 478.123 to require licensed importers and manufacturers to consolidate their records of importation, manufacture, or other acquisition, and their sale or other disposition in a format containing the applicable columns specified in a table under the regulation. These changes were proposed to supersede ATF Rulings 2011-1 and 2016-3.

The NPRM proposed to make minor clarifying changes to the format of the column titles required on the A&D Record in § 478.125(e). The proposed change was to make clear that both the name and license number (not the address) of a licensee from whom firearms are received and to whom they are disposed are recorded properly in the A&D Record.

The rule also proposed minor changes to § 478.125(f) to make clear that in the event the licensee records a duplicate entry with the same firearm and acquisition information, whether to close out an old record book or for any other reason, the licensee must record a reference to the date and location of the subsequent entry (

e.g.,

date of new entry, book name/number, page number, and line number) to document the disposition. The NPRM explained the proposed change is needed to ensure that acquisition records are closed out when firearms are no longer in inventory

and would resolve problems that ATF has encountered during the inspection process and FFLs

have encountered when responding to trace requests.

This is consistent with prior ATF guidance to the firearms industry.

See

FFL Newsletter, Sept. 2011, at 5.

2. Firearms Transaction Records

Some technical amendments were proposed at 27 CFR 478.124 pertaining to information recorded on the Form 4473. Like changes to the recordkeeping regulations, the rule proposed to make certain words plural on the Form 4473 to ensure that FFLs would record more than one manufacturer, importer, and serial number, if applicable. The NPRM also proposed to remove from paragraph (f) a phrase that indicates than an FFL must fill out the firearm description information only after filling out the information about the transferee. The proposed deletion would clarify ATF Procedure 2020-1, which sets forth an alternative method of complying with section 478.124(f) for non-over-the-counter firearm transactions, and reflect the current process for completing the Form 4473.

3. Recordkeeping for “Privately Made Firearms”

The Department proposed changes to the regulations regarding recordkeeping by licensees to account for any voluntary receipts or other acquisitions (including from a personal collection) of PMFs, and corresponding dispositions (including to a personal collection). If a PMF were received or otherwise acquired by a licensee or disposed of, or imported, the proposed rule required the abbreviation “PMF” to be recorded as the manufacturer in the appropriate column, as well as the PMF serial number beginning with the abbreviated FFL number in the serial number column. The rule proposed requiring licensees to first record the PMF as an acquisition in the licensee's A&D records upon receipt from the private owner (whether or not the licensee kept the PMF overnight). Once marked, the licensee would update the acquisition entry with the identifying information and record its return as a disposition to the private owner.

4. NFA Forms Update

The Department proposed minor technical amendments to 27 CFR 479.62, 479.84, 479.88, 479.90, and 479.141, pertaining to the Application to Make, NFA Form 1 (“Form 1”), the Application to Transfer, NFA Form 4 (“Form 4”), Tax Exempt Transfers—SOTs, NFA Form 3 (“Form 3”), Tax Exempt Transfers—Governmental Entities, NFA Form 5 (“Form 5”), and the Stolen or Lost Firearms Report, Form 3310.11 (“Form 3310.11”), respectively. The technical amendments were proposed to make certain words on the forms plural (

i.e.,

manufacturer(s), importer(s), serial number(s)).

5. Importation Forms Update

The Department proposed minor technical amendments to 27 CFR 447.42, 447.45, 478.112, 478.113, 478.114, and 479.112, pertaining to the importation of firearms. Like the other recordkeeping changes, these technical amendments were proposed to ensure that more than one name, manufacturer, country, importer, or serial number, if applicable, would be recorded when completing importation forms.

J. Record Retention

Given advancements in electronic scanning and storage technology, ATF's acceptance of electronic recordkeeping, the reduced costs of storing firearm transaction records, the increased durability and longevity of firearms, and the public safety benefits of ensuring that records of active licensees are available for tracing purposes, the Department proposed to amend 27 CFR 478.129 to require FFLs to retain all records until business or licensed activity is discontinued, either on paper or in an electronic format approved by the Director,

at the business or collection premises readily accessible for inspection. Also, a proposed amendment to 27 CFR 478.50(a) would allow all FFLs, including manufacturers and importers, to store paper records and forms older than 20 years at a separate warehouse, which would be considered part of the business premises for this purpose and subject to inspection. These amendments would reverse a 1985 rulemaking allowing non-manufacturer/importer FFLs to destroy their records after 20 years.

ATF previously approved electronic storage of certain records under the conditions set forth in ATF Rulings 2016-1 (Requirements to Keep Firearms Records Electronically) and 2016-2 (Electronic ATF Form 4473).

See

Retention of Firearms Transaction Records, 50 FR 26702 (June 28, 1985).

IV. Analysis of Comments and Department Responses for the Proposed Rule

In response to the NPRM, ATF received 290,031 comments. Submissions came from individuals, including foreign nationals, lawyers, government officials, and various interest groups. Of the comments reviewed, there were nearly 114,400 comments that expressed support for the proposed rule. Of these, over 68,000 were submitted by individuals as form letters,

i.e.,

identical text that is often supplied by organizations or found online and recommended to be submitted to the agency as a comment. There were nearly 170,550 comments opposed to the rule, of which over 88,000 comments were submitted as form letters. For over 1,500 comments, the commenters' positions could not be determined. The commenters' grounds for support and opposition, along with specific concerns and suggestions, are discussed below.

A. Issues Raised in Support of the Rule

Thousands of commenters broadly expressed support for the NPRM. Over 3,000 comments simply expressed support, stating “stop ghost guns,” but numerous other comments focused on the need to regulate “ghost guns” and were supportive of the proposed change to treat items like weapon parts kits the same as other firearms because the commenters believed such treatment is necessary for public safety. These commenters pointed to the rise and proliferation of “do-it-yourself” (“DIY”) firearms used in crimes and argued that it is easy for extremists, violent criminals, and traffickers, among others, to skirt the law and obtain untraceable guns without undergoing a background check. They stated that the rule was necessary to combat the emerging threat that “ghost guns” pose to public safety.

As discussed below, numerous other commenters ranging from lawmakers to prosecutors to religious, medical, and social policy-oriented organizations all raised various points as to why they were supportive of the Department's proposed amendments to ATF regulations. Some commenters in support of the rule also provided suggestions on where they believed the regulatory text could be enhanced or further clarified.

1. Changes are Consistent With Law

Comments Received

Commenters in support remarked that the proposed definitions are justified given the ease with which prohibited persons can intentionally circumvent Federal regulations to acquire unfinished frames or receivers that can be easily converted to functional firearms without a background check. Commenters agreed that ATF's proposed definitions are consistent with Congress's intent to regulate the core component of the firearm and that the plain meaning of “firearm” in the GCA includes any kits or nearly complete frames or receivers that can be readily converted into a firearm. One commenter noted the case

United States

Drasen,

845 F.2d 731, 736-37 (7th Cir. 1988), where the Seventh Circuit rejected the argument that a collection

of rifle parts cannot be a “weapon.” Other commenters agreed that ATF's proposed rule would be a functional definition that preserves existing designs while defining the frame or receiver to include those with split or multi-piece frame or receiver configurations, and allows for flexibility over time to account for new technologies. They stated that this flexible approach, including manufacturers' ability to submit a firearm to ATF and receive a classification on which component constitutes the receiver, would preserve the existing designations that ATF has made and minimize the burden on the gun industry.

Similarly, others agreed that the definition and factors set forth for the term “readily” are consistent with case law interpreting the term, and that the proposed definition and such case law provides manufacturers with fair warning on how the factors will be considered. Further, some commenters indicated that the proposed “readily” test is consistent with ATF's past approach to reviewing unfinished receivers. Some commenters, such as the Brady Group, the District Attorney and County Counsel for the County of Santa Clara, and the Attorney General for the State of California stated that for a few decades, ATF had issued classification letters taking the position that some unfinished receivers, which are identical to the so-called “80% receivers” on the market today, were “firearms” under the GCA. They stated that, in that time period, ATF's analysis was based on an approach that examined how quickly and easily an unfinished receiver or frame could be turned into a fully functional firearm—that is, whether it could “readily be converted” to function as the firearm it was specifically designed to be. The same commenters then asserted that, from around 2006 to the present, ATF changed its analysis and began to look at which machining operations still needed to be performed to determine whether a partially completed receiver or frame is a “firearm” under the GCA. Commenters believed that ATF's change in interpretation led to an increase in the number of PMFs that have proliferated and that are being recovered in crime scenes.

Department Response

The Department acknowledges the commenters' support for the proposed rule. The definitions in the proposed rule are consistent with the plain meaning of the term “firearm” in the GCA as it includes frames or receivers of weapons that are designed to or may readily be converted to fire, not merely of weapons that are in a functional state that will expel a projectile. The Department agrees with commenters that any new definitions must be general enough to account for changes in technology and terminology while preserving ATF's past classifications to minimize the impact on the firearms industry. The Department further agrees that the proposed definition of the term “readily” is consistent with case law that provides manufacturers with fair warning on how the factors in that definition are evaluated.

The Department also agrees that ATF took the position in past classification letters that some unfinished receivers were firearms because of the ease with which they can be made functional. However, ATF disagrees with commenters who stated that ATF changed its position from 2006 to the present concerning partially complete frames or receivers when it determined that specific machining operations had to be performed with respect to certain partially complete frames or receivers. Rather than a new or different test, how quickly and easily an item could be made functional is largely determined by which machining operations still needed to be performed. ATF has maintained and continues to maintain that a partially complete frame or receiver alone is not a frame or receiver if it still requires performance of certain machining operations (

e.g.,

milling out the fire control cavity of an AR-15 billet or blank, or indexing for that operation) because it may not readily be completed to house or hold the applicable fire control components. When a frame or receiver billet or blank is indexed or “dimpled,” it indicates the location for drilling or milling the holes or cavities necessary to install the fire control components necessary to initiate, complete, or continue the firing cycle.

However, this rule recognizes that the aggregation of a template or jig with a partially complete frame or receiver can serve the same purpose as indexing, making an item that is clearly identifiable as a partially complete frame or receiver into a functional one efficiently, quickly, and easily (

i.e.,

“readily”). Prior to this rule, ATF did not examine templates, jigs, or other items and materials in determining whether partially complete frames or receivers were “firearms” under the GCA. For this reason, ATF issued some classifications concluding that certain partially complete frames or receivers were not “frames or receivers” as defined in this rule. Thus, any classification requests for partially complete, disassembled, or nonfunctional items or parts kits that were previously submitted to ATF, particularly those submitted without their associated templates, jigs, molds, instructions, equipment, or marketing materials as required by this rule, must be re-evaluated consistent with this rule to determine whether they would now be classified as “firearms,” “frames,” or “receivers.”

2. Enhances Public Safety

Comments Received

Commenters supporting the proposed rule argued that the proposed rule is needed to make communities safer because under-regulation has made the rise of so-called ghost guns the fastest-growing public safety threat in the country. Some commenters emphasized that women who are victims of domestic abuse are severely affected by the rapid proliferation of unserialized firearms that can be easily acquired without a background check by convicted domestic violence offenders or those subject to a domestic violence restraining order. Healthcare and physicians' organizations, which have called gun violence a public health epidemic, urged issuance of the proposed rule as a necessary step to reduce or prevent firearm-related injuries and death.

Various commenters, including Members of Congress, State lawmakers, and State and local prosecutors noted the uptick in the involvement of “ghost guns” in crimes and provided numbers demonstrating the rise of unserialized firearms recovered or used in crimes in their jurisdictions. For example, a comment from several State Attorneys General asserted that the Philadelphia Police Department recovered 287 unserialized guns in the first half of 2021, whereas in 2019, the Philadelphia police recovered just 95 unserialized guns, and that unserialized guns represented 2.23 percent of all guns recovered after gun crimes. Similarly, a comment from the Gun Violence Task Force of the New York County Lawyers Association asserted that in 2020, law enforcement in New York recovered 220 “ghost guns” compared to 72 in 2019, and 38 in 2018. They stated that this represented a 479 percent increase over a three-year period. One group asserted that law enforcement officers across the country are increasingly identifying trafficking rings that mass produce and sell untraceable firearms. These commenters stated that it is important to take proactive steps now, given that technology continues to rapidly evolve and makes it likely that these weapons will become easier and cheaper to

manufacture privately, especially for criminals intending to skirt the law.

Department Response

The Department acknowledges that the rule will enhance public safety by helping to ensure that more firearms may be traced by law enforcement to solve crime and arrest the perpetrators. As discussed in Section II.B of this preamble, ATF has also seen an exponential increase in the number of suspected PMFs recovered and reported for tracing. At the same time, by requiring sellers to have licenses and conduct background checks when firearm parts kits are manufactured and sold, the rule will help prevent potentially dangerous persons from acquiring those kits and easily making functional weapons.

3. Prevents Companies From Exploiting Loopholes

Comments Received

Many commenters in support of the proposed rule argued that it was necessary to regulate so-called ghost guns because they believe that the primary reason people acquire them is for illicit purposes and that companies are exploiting existing loopholes in Federal regulations. Other commenters indicated that companies making and advertising DIY kits intentionally target prohibited purchasers or other dangerous parties by emphasizing the untraceable nature of their products. These companies, the commenters pointed out, frequently use the absence of a serial number and the ability to purchase the gun without a background check as selling points. Accordingly, these commenters argued it is evident that PMFs are not being used purely by hobbyists but are instead being made and sold for use on the street by violent criminals and gun traffickers precisely because their acquisition falls outside the scope of existing Federal regulations.

Some commenters made reference to ATF's Ruling 2015-1 that addressed inquiries from the public asking whether FFLs, or unlicensed machine shops, may engage in the business of completing, or assisting in the completion of, the manufacture of “firearm frames or receivers” (specifically from castings or blanks) for unlicensed individuals without becoming licensed as a manufacturer. These commenters asserted that the “ghost gun industry” ensures that its handgun frames and semiautomatic receivers do not meet ATF's 2015 interpretation of “frame or receiver” simply by not drilling into the frame or receiver, shipping the mostly finished item to the purchaser, and providing detailed instructions on how to complete the firearm privately, often within minutes. This allows the industry to sell thousands of weapons with no serial numbers or background checks. One commenter emphasized the proposed multi-factor analysis for “readily” provides ATF with the necessary flexibility to adapt to innovations in firearms technology and likely prevents these parts kits manufacturers from developing products aimed at complying with a narrow construction of ATF regulations while skirting the spirit and intent of the GCA.

Department Response

The Department acknowledges the commenters' support for the proposed rule. This rule interprets the plain language of the GCA to update its regulations and clarify when a license is required, which part of a firearm must be marked, and what records must be maintained by licensees. The rule clarifies that the regulatory definitions of “firearm” and “frame or receiver” include weapon and frame or receiver kits with partially complete frames or receivers, which are therefore subject to regulatory controls under the GCA or NFA. Sellers of such parts kits are required to be licensed, and the frames or receivers of those firearms must be marked with a serial number and other identifying information. ATF anticipates that, as technology develops, this rule will help to ensure that persons who commercially produce partially complete frames or receivers that can efficiently, quickly, and easily be completed are licensed and conduct background checks when sold to unlicensed individuals. This will help prevent prohibited persons from acquiring such frames and receivers.

4. Regulates “Privately Made Firearms” Like Other Firearms

Comments Received

Numerous commenters stated that PMFs should be regulated the same as any other firearm to ensure that manufacturers of weapon parts kits are licensed, adhere to recordkeeping requirements, and perform background checks on the purchasers of their products. Many commenters, including lawmakers from States such as Maryland, Massachusetts, and New York, stated that although some States that have enacted, or are working to pass, legislation regulating the possession or making of unserialized firearms, these laws cannot work in a vacuum and that there are limits to what any one State can do. Less restrictive gun laws in neighboring States, they argued, undermine States with tighter restrictions. Unserialized firearms and unfinished frames and receivers will continue to flow into their communities. Federal regulation, they argued, is therefore needed to close the loophole; otherwise, law enforcement and State efforts to prevent gun violence and enforce their own laws will be severely undermined. For example, the County of Santa Clara District Attorney wrote that the lack of adequate serialization and recordkeeping of PMFs has made it difficult for law enforcement to apprehend individuals involved in ongoing criminal activity or firearms traffickers who supply criminals with weapons. Similarly, another prosecutors' organization stated that prosecutors rely on gun markings to generate leads and identify patterns, and the lack of serial numbers on PMFs undermines prosecutors' ability to effectively investigate and prosecute gun crime.

Lastly, some commenters stated that ATF should reject the inaccurate claims that the NPRM would make criminals out of law-abiding gun owners, stating that the rule would not reach or restrict private individuals legally allowed to possess a firearm who previously purchased nearly complete frames or receivers or ghost gun kits. These individuals, they argued, will be no more exposed to criminal liability than they are currently. They concluded that the NPRM will cut off the supply of ghost guns to traffickers and prohibited persons at its source and not burden law-abiding, good faith actors.

Department Response

The Department acknowledges commenters' support for the proposed rule, and notes that one of the primary purposes of the GCA is to assist State and local jurisdictions to control the traffic of firearms within their own borders through the exercise of their police power.

Under the rule as proposed and finalized, when licensees receive privately made or DIY firearms in the course of their licensed business or activity, they will need to mark or cause those firearms to be marked. This allows PMFs to be traceable by State and local law enforcement whenever they, like commercially produced firearms, are introduced into the regulated marketplace. At the same time, neither the GCA nor the proposed or final rule prohibits unlicensed

individuals from marking (non-NFA) firearms they make for their personal use, or when they occasionally acquire them for a personal collection, or sell or transfer them from a personal collection to unlicensed in-State residents consistent with Federal, State, and local law. There are also no recordkeeping requirements imposed by the GCA or the proposed or final rule upon unlicensed persons who make their own firearms, but only upon licensees who choose to take PMFs into inventory. In sum, this rule does not impose any new requirements on law-abiding gun owners.

See

Public Law 90-351, sec. 901(a)(1), 82 Stat. 225.

5. Suggested Changes to the Text

Some commenters in support of the rule offered several suggestions on the text of the final rule while others asked that ATF take certain information into consideration. Notably, the combined comment submitted by 22 State Attorneys General in support of the proposed definitions offered seven suggestions for the final rule. The commenters' suggestions are addressed in the following paragraphs.

a. Definition of “Firearm” and Weapon Parts Kits

Comments Received

Some commenters urged ATF to clarify the relationship between a weapon parts kit and a partially complete frame or receiver. Although the proposed rule includes a “weapon parts kit” within the definition of “firearm” and separately defines a “partially complete, disassembled, or inoperable frame or receiver,” the commenters stated that a partially complete frame is often sold as part of a weapon parts kit. Therefore, the commenters suggested that ATF clarify whether a parts kit must include a partially complete frame or receiver in order to satisfy the definition of “firearm.”

Other commenters asked ATF to consider how to effectively regulate the domestic distribution of Computer Aided Manufacturing (“CAM”) and Computer Aided Design (“CAD”) files and other software and technology used to produce firearms. They explained that these types of files are just like weapon parts kits and can be used to “readily” assemble a working firearm. The commenters stated that the Department of Commerce currently regulates only the international distribution and export of CAM or CAD files for the production of firearms where such files are “ready for insertion into a computer numerically controlled machine tool, additive manufacturing equipment, or any other equipment that makes use of” the files “to produce the firearm frame or receiver or complete firearm.” 15 CFR 734.7(c). They suggested that there are opportunities for ATF to work alone or with other Departments, such as Commerce, to address the lack of regulation of the domestic distribution of CAM and CAD files and other software and technology used to produce firearms.

Department Response

The Department agrees with commenters that the NPRM supplement entitled “Partially Complete, Disassembled, or Inoperable Frame or Receiver” should make clear that it includes a “frame or receiver parts kit” with a partially complete, disassembled, or nonfunctional (replacing “inoperable” in the final rule to describe the item more accurately)

frame or receiver. The final rule incorporates that addition. However, a weapon parts kit need not have a partially complete frame or receiver, as defined in this rule, to satisfy the definition of “firearm” under section 921(a)(3)(A).

For example, a weapon parts kit that contains pieces of a multi-piece frame or receiver, as defined in this rule, may still meet the definition of “firearm” under section 921(a)(3)(A) if the kit “is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive.”

See

footnote 122,

infra.

The existence of a frame or receiver is

not

a precondition to classifying a weapon as a firearm under section 921(a)(3)(A), as section 921(a)(3) defines a “firearm” in the disjunctive with each subpart separated by the disjunctive participle “or.”

See

Black's Law Dictionary 1095 (6th ed.1990) (defining the term “or” to mean “[a] disjunctive participle used to express an alternative or to give a choice of one among two or more things”); Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts

sec. 12, at 116 (2012) (“Under the conjunctive/disjunctive canon,

and

combines items while

creates alternatives . . . . With a conjunctive list, all . . . things are required—while with the disjunctive list, at least one of the [things] is required, but any one . . . satisfies the requirement.”). Thus, while the term “firearm” in section 921(a)(3)(B) includes the frame or receiver of a weapon described in section 921(a)(3)(A), section 921(a)(3)(A)

does not require

a weapon to have a “frame or receiver,” as each subpart qualifies, on its own, as a “firearm” for purposes of the GCA. Otherwise, section 921(a)(3)(A) would be superfluous.

Regarding computer files, this rule as proposed and finalized does not regulate the domestic distribution of CAM or CAD computer files. This rule implements the GCA, which does not regulate the information used to manufacture firearms. However, it would violate federal law to aid and abet (18 U.S.C. 2) or conspire (18 U.S.C. 371) with others to manufacture firearms without a license (18 U.S.C. 922(a)(1)), which could include someone providing specially designed computer instructions for machines, such as Computer Numeric Control (CNC) machines or 3D printers, knowing that the purchaser is engaged in the business of producing firearms for sale or distribution without a license.

b. General Definition of “Frame or Receiver”

Comments Received

Some commenters in support of the proposed rule were concerned with the language “when the complete weapon is assembled” in the general definition of “frame or receiver,” which was proposed to be defined, in part, as a “part of a firearm that,

when the complete weapon is assembled,

is visible from the exterior and provides housing or a structure designed to hold one or more fire control components” (emphasis added). The commenters stated that the italicized language makes the definition susceptible to being read to say that the part of a weapon that is the “frame or receiver” only becomes so when the complete weapon is assembled. To avoid that possible misreading, the commenters suggested the sentence should indicate it is a part of a complete weapon that is visible from the exterior when the complete weapon is assembled and provides housing designed to hold or integrate one or more fire control components.

Additionally, commenters also suggested the proposed definition of “frame or receiver,” which refers to “[a] part of a firearm,” be changed to “[a] part of a complete weapon,” given that under both the GCA and regulatory definition, a “firearm” could mean just the “frame or receiver” of a weapon. Similarly, commenters suggested that “complete weapon” also be used instead of “firearm” where ATF proposes to define “fire control component” as “a component necessary for the firearm to initiate, complete, or continue the firing sequence.” They suggested using “complete weapon” in other instances where the supplemental definition, like split or modular frame or receiver, uses the term “firearm” in the definition.

Department Response

The Department agrees that the phrase “when the complete weapon is assembled, is visible” in the proposed definition of “frame or receiver” could be misinterpreted to mean that the weapon or device must be assembled for a part to be defined as a frame or receiver. For this reason, and because

the definition of “conspicuous” in the marking requirements makes clear that markings must be capable of being easily seen with the naked eye during normal handling of the firearm and unobstructed by other markings when the complete weapon or complete muffler or silencer device is assembled (

i.e.,

visible),

the phrase “when the complete weapon is assembled, is visible” has been removed from the definition of “frame or receiver” in the final rule because it is unnecessary. Regarding the suggestion to substitute “complete weapon” for “firearm,” the Department does not believe that change is necessary because the final rule now makes clear the terms under “frame or receiver” will be defined in relation to the type of weapon, not to “firearms” generally.

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

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

Shirley,

No. 107449, 2019 WL 2156402, at *2 (Ct. App. Ohio May 16, 2019) (same);

cf. United States

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

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

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