Implementation of Public Law 103-159, Including the Brady Handgun Violence Prevention Act (93F-057P)

SUMMARY: This final rule implements the provisions of Public Law 103-

159, including the Brady Handgun Violence Prevention Act. These

regulations implement the law by imposing a waiting period of 5 days

before a licensed firearms importer, licensed manufacturer, or licensed

dealer may transfer a handgun (other than the return of a handgun to

the person from whom it was received) to a nonlicensed individual.

Regulations are also prescribed with regard to reporting requirements

for multiple handgun sales, labeling of packages containing a firearm,

theft of firearms from firearms licensees, and increased license fees

for dealers in firearms.

Unless otherwise indicated, the temporary regulations published in

the Federal Register on February 14, 1994 (T.D. ATF-354), are made

permanent upon the effective date of this final rule.

EFFECTIVE DATE: March 29, 1995.

FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Regulations

Branch, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts

Avenue, NW., Washington, DC 20226 (202-927-8230).

SUPPLEMENTARY INFORMATION:

Legislative Background

On November 30, 1993, Public Law 103-159 (107 Stat. 1536) was

enacted, amending the Gun Control Act of 1968 (GCA), as amended (18

U.S.C. Chapter 44). Title I of Pub. L. 103-159, the ``Brady Handgun

Violence Prevention Act'' (hereinafter, ``Brady'' or ``Brady law''),

provides for a national waiting period of 5 days before a licensed

importer, licensed manufacturer, or licensed dealer may transfer a

handgun to a nonlicensed individual (interim provision), and for the

establishment of a permanent national instant criminal background check

system to be queried by firearms licensees before transferring any

firearm to nonlicensed individuals. The law requires that the permanent

system be established not later than November 30, 1998. Violations of

either the interim or permanent provision are punishable by a fine and/

or imprisonment for not more than 1 year.

Titles II and III of Pub. L. 103-159 relate to reporting

requirements for multiple handgun sales, labeling of packages

containing a firearm, thefts of firearms from licensed firearms

dealers, and increased license fees for dealers in firearms.

On September 13, 1994, the Violent Crime Control and Law

Enforcement Act of 1994, Pub. L. 103-322 (108 Stat. 1796) was enacted.

Title XXXII of Pub. L. 103-322 amended the GCA by eliminating the

Federal 5-day waiting period requirement imposed by Brady with respect

to a licensee's return of a handgun to the person from whom it was

received.

Waiting Period (Interim Provision)

The Brady law provides that the waiting period provisions of the

law were effective on February 28, 1994, and cease to apply on November

30, 1998. Brady imposes a waiting period of 5 business days (defined in

the statute as days on which State offices are open) before a licensee

may sell, deliver, or transfer a handgun (other than the return of a

handgun to the person from whom it was received) to a nonlicensed

individual. As defined in the Brady law, the term ``handgun'' means--

(A) a firearm which has a short stock and is designed to be held

and fired by the use of a single hand; and

(B) any combination of parts from which a firearm described in

subparagraph (A) can be assembled.

Basically, the waiting period provision makes it unlawful for any

licensed firearms importer, manufacturer, or dealer to sell, deliver,

or transfer a handgun to a nonlicensed individual (transferee), unless

the licensee--

(1) obtains a statement of the transferee's intent to obtain a

handgun containing the transferee's name, address, and date of birth

appearing on a valid photo identification, a description of the

identification document, a statement that the transferee is not a

felon, under indictment, or otherwise prohibited from receiving or

possessing the handgun under Federal law, and the date the statement is

made;

(2) verifies the identity of the transferee by examining the

identification document presented;

(3) within 1 day after the transferee furnishes the statement,

contacts the chief law enforcement officer (CLEO) of the place of

residence of the transferee and advises such officer of the contents of

the statement;

(4) within 1 day after the transferee furnishes the statement,

transmits a copy of the statement to the CLEO of the place of residence

of the transferee; and

(5) waits 5 business days from the date the licensee furnished

notice of the contents of the statement to the CLEO before transferring

the handgun to the transferee (during which period the licensee has not

received information from the CLEO that receipt or possession of the

handgun by the transferee would be in violation of law); or receives

notice from the CLEO of the place of residence of the transferee that

the officer has no information that the transferee's receipt or

possession of the handgun would violate the law.

Subsequent to the sale or transfer of the handgun, the law requires

a licensee who receives a report from a CLEO containing information

that receipt or possession of the handgun by the transferee would

violate Federal, State, or local law to communicate within 1 day any

information the licensee has concerning the transfer to the CLEO of the

place of business of the licensee and to the CLEO of the place of

residence of the transferee.

As provided in Brady, the term ``chief law enforcement officer''

means ``the chief of police, the sheriff, or an equivalent officer or

the designee of any such individual.'' The law requires that the chief

law enforcement officer within 5 business days make a reasonable effort

to determine whether the transferee is prohibited by law from receiving

or possessing the handgun sought to be purchased. Except for records

relating to a proposed handgun sale that would violate the law, CLEOs

are required to destroy within 20 days the purchaser's statement, any

record containing information derived from the statement, and any

record created as a result of the notice referred to in (3) above.

Furthermore, these records may only be used to carry out the purposes

of the Brady law, and no information in the records may be conveyed to

any person for purposes other than complying with the Brady law.

Brady also provides that an individual who is determined to be

ineligible to purchase a handgun under the waiting period provision may

request that the CLEO who made the determination provide reasons for

that determination. The officer must provide such reasons to the

individual in writing within 20 business days after receipt of the

request. [[Page 10783]]

Alternatives to the Waiting Period

The statute provides the following alternatives to the waiting

period provision:

(1) The transferee provides a written statement issued within the

last 10 days by the CLEO of the transferee's place of residence that

the transferee requires a handgun because of a threat to the life of

the transferee or any member of the transferee's household;

(2) The transferee presents to the licensee a permit issued by the

State within the past 5 years to possess a handgun and the law of the

State requires verification that the transferee is not prohibited by

law from possessing the handgun;

(3) Purchases in States which require that, before any licensee

transfers a handgun to an individual, an authorized government official

has verified that possession of the handgun by the transferee would not

violate the law (e.g., a background check);

(4) Purchases of handguns which are subject to the National

Firearms Act and which have been approved for transfer under 27 CFR

Part 179 (Machine Guns, Destructive Devices, and Certain Other

Firearms);

(5) Purchases of handguns for which the Secretary has certified

that compliance with the 5-day waiting period procedure is

impracticable because the ratio of the number of law enforcement

officers of the State in which the transfer is to occur to the number

of square miles of land area of the State does not exceed 0.0025 (i.e.,

25 officers per 10,000 square miles), the premises of the licensee are

remote in relation to the CLEO of the area, and there is an absence of

telecommunications facilities in the geographical area in which the

business premises are located.

Additional Provisions of Pub. L. 103-159

Titles II and III of Pub. L. 103-159 provide additional amendments

to the GCA. These provisions, which became effective on November 30,

1993, are as follows:

(1) Multiple sales reports. In addition to furnishing reports of

multiple handgun sales to ATF, licensees are required to submit such

reports to the ``department of State police or State law enforcement

agency of the State or local law enforcement agency of the jurisdiction

in which the sale or other disposition took place.''

(2) Common carriers. Common or contract carriers are prohibited

from requiring or causing any label or other written notice to be

placed on the outside of any package, luggage, or other container

indicating that such package contains a firearm. In addition, common or

contract carriers who deliver firearms in interstate or foreign

commerce are required to obtain written acknowledgement of receipt from

the recipient of the package or other container in which there is a

firearm.

(3) Theft of firearms. It is unlawful for any person to steal from

the person or premises of a Federal firearms licensee any firearm in

the licensee's business inventory which has been shipped or transported

in interstate or foreign commerce.

(4) License fees. License fees for all dealers in firearms (other

than destructive devices), including pawnbrokers, have been increased

to $200 for 3 years, except that the fee for renewal of a license is

$90 for 3 years.

Temporary Rule and Notice of Proposed Rulemaking

On February 14, 1994, ATF published in the Federal Register a

temporary rule (T.D. ATF-354, 59 FR 7110) implementing the provisions

of Public L. 103-159, including the Brady Handgun Violence Prevention

Act. The temporary rule provided immediate guidance to Federal firearms

licensees concerning their obligations under the Brady law.

On February 14, 1994, the Bureau also published a notice of

proposed rulemaking cross-referenced to the temporary regulations

(Notice No. 789, 59 FR 7115). The comment period for Notice No. 789

closed on May 16, 1994.

Analysis of Comments

ATF received 105 comments in response to Notice No. 789. Comments

were submitted by Federal firearms licensees, nonlicensees, industry

trade groups and other organizations (e.g., Collateral Loan &

Secondhand Dealers Association of California, Handgun Control, Inc.,

and the National Rifle Association of America), members of Congress,

law enforcement officials, one Federal agency, and one State

Government.

Forty-five commenters, representing 43 percent of the total

comments received, expressed opposition to the Brady law and urged its

repeal. To accomplish this, however, legislative action would be

necessary. Several other commenters requested changes that would also

require legislative action. These include reducing or eliminating the

license fees for gunsmiths, eliminating the provision of law with

respect to the theft of firearms from a licensee, exempting police

officers from the waiting period requirement when purchasing a handgun

for other than official use, eliminating the requirement that the

licensee forward to the CLEO a copy of the transferee's statement of

intent to obtain a handgun, and eliminating the 5-year limitation for

permits in States that have a permit-to-purchase system. Other issues

addressed in the comments will be discussed in the following

paragraphs.

Pawn Transactions--Public Law 103-322

Twenty-five commenters disagree with ATF's interpretation that the

Brady law applies to the redemption of a pawned handgun. They argue

that the law was not intended to apply to pawn transactions where a

handgun is redeemed by the owner.

Subsequent to publication of the temporary regulations, on

September 13, 1994, the Violent Crime Control and Law Enforcement Act

of 1994 was enacted as Pub. L. 103-322 (108 Stat. 1796). Title XXXII of

Pub. L. 103-322 amended the GCA by eliminating the Federal 5-day

waiting period requirement imposed by Brady with respect to a

licensee's return of a handgun to the person from whom it was received.

Consequently, effective September 13, 1994, the Federal waiting period

no longer applies to the redemption of a pawned handgun by the person

from whom it was received. Accordingly, Sec. 178.102(a) of the final

regulations has been amended to include this exception to the

requirements of the Brady law.

Background Check Fees

Several commenters, including licensees and nonlicensees, oppose

the imposition of fees by law enforcement officials for background

records checks. They argue that there is nothing in the Brady law or

temporary regulations which allow CLEOs to charge a fee for such

checks.

The Brady law is silent with respect to the imposition of fees for

State and local officials performing records checks. It neither

authorizes nor prohibits CLEOs from imposing such a fee. Consequently,

such fees may be imposed pursuant to State or local law. Therefore, the

final rule does not address such fees.

Form 5300.35

Some commenters suggested that Form 5300.35 and Form 4473 be

combined into one form. This suggestion was not adopted. While the

forms contain duplicative information, they serve distinct purposes and

are executed at different times. Form [[Page 10784]] 5300.35 is

executed at the time the prospective purchaser informs the licensee of

an intent to acquire a handgun. Form 4473 is executed when the handgun

is delivered. A considerable lapse of time may separate the two events.

Consequently, the purchaser's certification on Form 5300.35 that he or

she is not within a category of persons prohibited from receiving or

possessing firearms must be made again on Form 4473 when the firearm is

delivered to the purchaser. During the period between execution of the

two forms, the purchaser may have been indicted, convicted of a felony,

or otherwise fallen within one of the categories of persons who are

prohibited by law from receiving or possessing firearms. In addition,

it is impractical to use a combined form as the Form 4473 contains

information that may not be provided to the CLEO, including a

description of the handgun to be purchased. The Brady law expressly

limits the information that may be required on Form 5300.35. Finally, a

combination of the two forms would be overly complicated and confusing

to licensees and handgun purchasers.

Two commenters requested that the regulations be revised to include

as optional information on Form 5300.35 the transferee's race in order

to assist law enforcement officials in verifying the transferee's

eligibility to possess a handgun. ATF agrees with the commenters that

race would be helpful in identifying the transferee. However, ATF

believes that the other information on the form, including social

security number and date of birth, is adequate for law enforcement

officials to conduct a criminal records check. Accordingly, ATF is not

amending the regulations and the form to include the transferee's race.

Another modification to Form 5300.35 was requested by the

Immigration and Naturalization Service (INS) of the Department of

Justice. In order to provide assistance to CLEOs in identifying

ineligible applicants for handguns, the INS has suggested that a

transferee who is a lawful permanent resident alien of the United

States include his or her alien registration number (Alien

#A__________) on Form 5300.35 (Item 5g, ``Are you illegally in the

United States?''). The registration number will enable INS to conduct

computer checks. Without this information, it would be impossible for

INS to grant the assistance requested by CLEOs. In light of INS's

request, ATF is amending Sec. 178.130(a)(2) to include the alien

registration number on Form 5300.35 as optional information.

Some commenters suggested that the regulations prescribe a maximum

time period between the completion of Form 5300.35 and delivery of the

handgun. The Brady law is silent on this issue. It requires licensees

to execute Form 5300.35 after the most recent proposal of transfer by

the transferee and before transferring the handgun. The law would not

prohibit a licensee from transferring a handgun even though there is a

long lapse of time between execution of the form and delivery of the

firearm. However, ATF is encouraging licensees to have the form

executed as close in time to the delivery of the handgun as possible,

so that any records check performed will be recent.

Another commenter requested that Sec. 178.130(c), which requires

licensees to retain all executed original Forms 5300.35 even when a

transfer does not occur, be eliminated. One commenter also recommended

that the final regulations clarify how long licensees must retain these

forms.

ATF is not amending Sec. 178.130(c). The retention of executed

Forms 5300.35 is necessary to ensure compliance with the Brady law

which requires that the form be completed at the time the buyer

expresses an intent to acquire a handgun from a licensee.

With respect to retention of Form 5300.35, Sec. 178.129(b) provides

that licensees shall retain each Form 5300.35 for a period of not less

than 5 years after notice of the intent to obtain a handgun was

forwarded to the chief law enforcement officer.

Recordkeeping Requirements

One commenter requested an amendment of Sec. 178.131(a)(3),

concerning recordkeeping requirements for handgun transactions in

States that have a permit/license-to-purchase background check system.

This section provides that the licensee shall retain a copy of the

purchaser's permit or license and attach it to the firearms transaction

record, Form 4473, executed upon delivery of the handgun. The commenter

contends that this requirement places an unnecessary and expensive

burden on licensees, particularly for those licensees who cannot

afford, or do not have access to, a photocopier.

Rather than making a copy of the purchaser's permit or license, the

commenter suggests that the licensee make a record of the information

contained on the permit. ATF believes that recording this information

on Form 4473 sufficiently demonstrates that a handgun transfer has been

made under the State permit system. Accordingly, this final rule amends

Sec. 178.131(a)(3) to require licensees to either retain a copy of the

purchaser's permit or license and attach it to the Form 4473 or record

certain minimal information contained on such permit or license on the

Form 4473, including any identifying number, the date of issuance and

the expiration date (if provided).

The same commenter requested an amendment of Sec. 178.131(a)(4).

This section requires licensees in alternative States with ``instant

check'' systems to retain with the Form 4473 a statement showing the

date of verification, any identifying number, and the name, location,

and title of the authorized government official who did the background

check. According to the commenter, ``[i]n virtually all instances, the

person actually checking the status of the transferee will not be an

`authorized government official' personally known to the licensee who

will conduct the appropriate records check.''

Since the agency responsible for determining the status of the

purchaser will have verifiable information that the background check

was completed, the commenter has suggested that the regulations be

amended to require the name of the agency responsible for conducting

the records check rather than the name of the Government official who

made the check.

In response, ATF is revising Sec. 178.131(a)(4) to require

licensees in alternative States with ``instant check'' systems to

retain with the Form 4473 a statement indicating the date of

verification and any identifying number assigned to the transaction by

the agency responsible for conducting the verification of eligibility.

Common and Contract Carriers

Section 922(f)(2) of the GCA and its implementing regulation in

Sec. 178.31(d) impose a new requirement on common or contract carriers

to obtain a written receipt upon delivery of a package or other

container in which there is a firearm. Two commenters raised concerns

regarding the application of Sec. 178.31(d) which they believe need to

be addressed in the final regulations.

One commenter, a trade association of the moving industry, noted

that some customers who are relocating do not reveal to the mover that

a firearm is included in the household goods being shipped. The firearm

may, for example, be in a dresser or other piece of furniture. Since

the mover has no knowledge that there is a firearm included in the

shipment, the commenter contends that the carrier should not be held

accountable for [[Page 10785]] failing to obtain proof of delivery of

the firearm from the recipient.

Pursuant to section 924 of the GCA, whoever ``knowingly'' violates

the provisions of section 922(f) shall be subject to certain penalties,

including a fine, imprisonment, or both. If the carrier has no

knowledge that a firearm is being transported in the shipment, no

violation would occur. For clarification, ATF is amending

Sec. 178.31(d) in the final regulations to add the requisite knowledge

element.

The second commenter, a trade and service organization of the

larger U.S. airlines, also expressed some concerns regarding the

application of Sec. 178.31(d). First, the commenter asked whether the

regulation requires an airline to obtain a written receipt from a

passenger when baggage, containing a declared firearm that accompanies

the passenger, is delivered at the destination airport. ATF interprets

section 922(f) as not requiring carriers to obtain a written

acknowledgement of receipt upon return of a firearm to a passenger who

places a firearm in the carrier's custody for the duration of the trip.

ATF is amending Sec. 178.31(d) in the final regulations to clarify this

point.

The commenter also inquired as to whether an electronic signature

satisfies the receipt requirement of Sec. 178.31(d). According to the

commenter, small cargo package services utilize electronic notebooks

that enable a consignee to sign electronically, rather than in ink, for

a shipment. Hard copies of the delivery records, including the

signature of the recipients, can be printed out. The records are

retrievable from the database by the name of the consignee or

consignor.

ATF finds that an electronic signature is a ``written

acknowledgement of receipt'' which would satisfy the requirements of

Sec. 178.31(d), provided the signature is that of the individual who

received the package. However, ATF believes it is unnecessary to amend

the regulations to specifically address this particular type of

receipt.

Finally, the commenter requested a clarification of Sec. 178.31

with respect to the handling of firearms shipped on commercial air

carriers on behalf of governmental entities, specifically, military

personnel. In the case of firearms shipped as cargo on behalf of

military personnel, Sec. 925(a)(1) of the GCA provides that the

provisions of the Act do not apply with respect to the transportation,

shipment, receipt, possession, or importation of any firearm or

ammunition imported for, sold or shipped to, or issued for the use of

governmental entities. Thus, the provisions of Sec. 178.31 are not

applicable to firearms being shipped or transported on behalf of

governmental entities, including the Armed Forces.

Since there are existing regulations which implement the provisions

of Sec. 925(a)(1), i.e., Sec. 178.141, ATF has determined that

amendment of Sec. 178.31 is unnecessary.

Chief Law Enforcement Officers

Two commenters suggested that the final regulations provide

guidance for law enforcement officers with respect to their

responsibilities and duties in implementing the provisions of Brady.

This includes a clarification of who is a CLEO and who may designate a

CLEO; a clarification that CLEOs have no authority to impose a

``temporary hold'' on the transfer of a handgun to a transferee who is

not prohibited by law from purchasing a handgun; guidance to CLEOs

regarding what constitutes ``reasonable effort'' when conducting

background checks on purchasers; and guidance regarding the destruction

of Brady related records by law enforcement officers.

ATF has not included the commenters' suggestions in the final rule,

since the regulations address the responsibilities of Federal firearms

licensees. ATF has given actual notice to CLEOs of their

responsibilities under the Brady law.

Finally, the temporary regulations, Sec. 178.102(a)(3), provide

that the notice licensees are required to give CLEOs shall be actual

notice and shall be given in a manner acceptable to the CLEO. For

clarification, ATF is amending Sec. 178.102(a)(3) to provide that

licensees in jurisdictions where CLEOs have specified hand-delivery as

the only means of delivering notice will satisfy their legal obligation

under the Brady law if they provide notice to the CLEO by certified

mail (return receipt requested) or by any other method of mailing which

will provide a written receipt. This section has been redesignated as

Sec. 178.102(b).

Identification of Transferee

The temporary regulations, Sec. 178.102(a)(1)(ii), require

licensees to verify the identity of the transferee by examining the

identification document presented. The term ``identification document''

is defined in Brady and the regulations as ``a document containing the

name, residence address, date of birth, and photograph of the holder

and which was made or issued by or under the authority of the United

States Government, a State, political subdivision of a State ...'' A

question was raised in the comments with respect to acceptable

identification documents in the case of military personnel.

In the case of military personnel, the purchaser's military

identification card and official orders showing that his permanent duty

station is within the State where the licensed premises is located will

suffice for purposes of the identification requirement of Brady.

ATF was also asked if a licensee could accept an identification

document from a transferee who has an incorrect address. A transferee

who presents a driver's license with an address that is not a current

residence would not present a proper ``identification document'' as

that term is defined in the law and the regulations. However, if the

individual presents a combination of documents, all issued by a

governmental entity, containing all the information required by Brady,

the combination of documents would satisfy the identification

requirements of the law.

ATF believes the preceding discussion sufficiently clarifies the

application of Sec. 178.102(a)(1)(ii), and an amendment of the

regulations is unnecessary. This section has been redesignated as

Sec. 178.102(a)(2) in the final regulations.

Miscellaneous

One commenter suggested that the final regulations specify that the

waiting period provisions of Brady do not apply to licensed collectors

of curios and relics. ATF is not adopting this suggestion, since Brady

applies to certain handgun transactions by licensed collectors. The law

and regulations make it clear that the waiting period provisions of

Brady apply to transfers of handguns by licensed IMPORTERS, licensed

MANUFACTURERS, and licensed DEALERS to individuals who are not licensed

under section 923. Thus, it is apparent that transfers of handguns BY

licensed collectors are not subject to the provisions of Brady. As for

transfers of handguns by licensed importers, licensed manufacturers,

and licensed dealers TO licensed collectors, such transfers are subject

to Brady unless the collector is purchasing a handgun designated as a

curio or relic. A collector's license authorizes the licensee to engage

only in transactions in firearms designated as curios or relics and

would not enable the licensed collector to avoid the requirements of

the GCA, including the Brady law, for firearms other than curios or

relics.

One commenter recommended that the final regulations include a

provision that requires licensees to obtain a transferee's fingerprints

to resolve [[Page 10786]] appeals involving positive identification.

ATF is not adopting this suggestion. The Brady law does not involve

licensees in the appeals process. If a CLEO determines that a

prospective buyer is ineligible to receive a firearm and the handgun

purchase is denied, Brady provides that the individual can request from

the CLEO the reason for such determination. Thus, the licensee is no

longer involved and the matter will be resolved by the prospective

buyer and the CLEO. In situations where the denial is based on

inconclusive identification of the transferee, it is incumbent upon the

prospective buyer to provide the CLEO with whatever additional

identifying information is needed, including fingerprints, to establish

positive identification.

Finally, this Treasury decision makes some technical amendments to

the temporary regulations. Specifically, the temporary regulations

redesignated Sec. 178.150 as Sec. 178.151. Section 178.150 should have

been redesignated as Sec. 178.152. In addition, Sec. 178.126a has been

amended to clarify that licensees retain a copy of Form 3310.4,

consistent with the instructions on the form. Section 178.129 provides

that licensees shall retain such copies of Form 3310.4 for a period of

not less than 5 years. Lastly, the definition of the term ``chief law

enforcement officer'' has been moved from Sec. 178.11 to

Sec. 178.102(c).

Executive Order 12866

It has been determined that this final rule is not a significant

regulatory action because the economic effects flow directly from the

underlying statute and not from this final rule. Accordingly, this

final rule is not subject to the analysis required by this Executive

order.

Regulatory Flexibility Act

The provisions of the Regulatory Flexibility Act relating to an

initial and final regulatory flexibility analysis (5 U.S.C. 604) are

not applicable to this final rule because the agency was not required

to publish a notice of proposed rulemaking under 5 U.S.C. 553 or any

other law.

Paperwork Reduction Act

The collection of information contained in this final regulation

has been reviewed and approved by the Office of Management and Budget

in accordance with the requirements of the Paperwork Reduction Act (44

U.S.C. 3504(h)) under control number 1512-0520. The estimated average

annual burden associated with the collection of information in this

regulation is 2.52 hours per respondent or recordkeeper.

Comments concerning the accuracy of this burden estimate and

suggestions for reducing this burden should be directed to the Chief,

Information Programs Branch, Room 3450, Bureau of Alcohol, Tobacco and

Firearms, 650 Massachusetts Avenue, NW., Washington, DC 20226 and to

the Office of Management and Budget, Attention: Desk Officer for the

Bureau of Alcohol, Tobacco and Firearms, Office of Information and

Regulatory Affairs, Washington, DC 20503.

Disclosure

Copies of the temporary rule, the notice of proposed rulemaking,

all written comments, and this final rule will be available for public

inspection during normal business hours at: ATF Public Reading Room,

Room 6480, 650 Massachusetts Avenue, NW., Washington, DC.

Drafting Information

The author of this document is James P. Ficaretta, Regulations

Branch, Bureau of Alcohol, Tobacco and Firearms.

List of Subjects in 27 CFR Part 178

Administrative practice and procedure, Arms and ammunition,

Authority delegations, Customs duties and inspection, Exports, Imports,

Military personnel, Penalties, Reporting requirements, Research,

Seizures and forfeitures, and Transportation.

Authority and Issuance

PART 178--COMMERCE IN FIREARMS AND AMMUNITION

27 CFR Part 178 is amended as follows:

Paragraph 1. The authority citation for 27 CFR Part 178 continues

to read as follows:

Authority: 5 U.S.C. 552(a); 18 U.S.C. 847, 921-930; 44 U.S.C.

3504(h).

Sec. 178.11 [Amended]

Par. 2. Section 178.11 is amended by removing the definition for

``chief law enforcement officer.''

Par. 3. Section 178.31 is amended by revising paragraph (d) to read

as follows:

Sec. 178.31 Delivery by common or contract carrier.

* * * * *

(d) No common or contract carrier shall knowingly deliver in

interstate or foreign commerce any firearm without obtaining written

acknowledgement of receipt from the recipient of the package or other

container in which there is a firearm: Provided, That this paragraph

shall not apply with respect to the return of a firearm to a passenger

who places firearms in the carrier's custody for the duration of the

trip.

Par. 4. Section 178.102 is revised to read as follows:

Sec. 178.102 Sales or deliveries of handguns after February 27, 1994,

and before November 30, 1998.

(a) Waiting period. Except as provided in paragraph (d), a licensed

importer, licensed manufacturer, or licensed dealer shall not sell,

deliver, or transfer a handgun (other than the return of a handgun to

the person from whom it was received) to any individual who is not

licensed under this part unless the licensee:

(1) Receives from the transferee a statement of intent to obtain a

handgun on Form 5300.35 in accordance with Sec. 178.130;

(2) Verifies the identity of the transferee by examining the

identification document presented, and noting on Form 5300.35 the type

of identification used;

(3) Within 1 day after the transferee furnishes the statement,

provides notice of the contents of the statement on Form 5300.35, in

the manner prescribed by paragraph (b) of this section, to the chief

law enforcement officer of the place of residence of the transferee;

(4) Within 1 day after the transferee furnishes the statement to

the licensee, transmits a copy of Form 5300.35 to the chief law

enforcement officer of the place of residence of the transferee; and

(5)(i) Five business days (meaning days on which State offices are

open) have elapsed from the date the licensee furnished actual notice

of the contents of the statement to the chief law enforcement officer,

during which period the licensee has not received information from such

officer that receipt or possession of the handgun by the transferee

would be in violation of Federal, State, or local law; or

(ii) The licensee has received notice from the chief law

enforcement officer within the 5 business days that the officer has no

information indicating that receipt or possession of the handgun by the

transferee would violate Federal, State, or local law.

Example 1. A licensee furnishes actual notice of the contents of

the statement to the chief law enforcement officer on Tuesday. If

State offices are not open on Saturday and Sunday, 5 business days

would have elapsed on the following Tuesday. The licensee may

deliver the handgun on the next day, Wednesday.

Example 2. A licensee furnishes actual notice of the contents of

the statement to the chief law enforcement officer on Saturday. If

State offices are not open on Saturday and Sunday, 5 business days

would have elapsed [[Page 10787]] on the following Friday. The

licensee may deliver the handgun on the next day, Saturday.

(b) Form of notice. The notice required by paragraph (a)(3) of this

section shall be actual notice and shall be given in a manner

acceptable to such officer. For example, if the chief law enforcement

officer will only accept notice in writing and not by telephone, notice

shall be given by the licensee to the chief law enforcement officer in

writing. In that case, the 5-day waiting period prescribed by paragraph

(a)(5)(i) of this section begins at the time such written notice is

received by the chief law enforcement officer. If the licensee sends

notice to such officer by mail, the licensee shall send the notice by

certified mail (return receipt requested) or by any other method of

mailing which will provide a written receipt: Provided, That where the

chief law enforcement officer will only accept notice by hand delivery,

notice may be sent in writing by the licensee to the chief law

enforcement officer by certified mail (return receipt requested) or by

any other method of mailing which will provide a written receipt.

(c) Chief law enforcement officer. The law requires that notice of

the contents of the transferee's statement of intent to obtain a

handgun and the statement be provided by the licensee to the chief law

enforcement officer of the place of residence of the transferee. For

purposes of this section, Sec. 178.130, and Sec. 178.131, the ``chief

law enforcement officer'' means the chief of police, the sheriff, or an

equivalent officer or the designee of any such individual. Where the

State or local law enforcement officials have notified the licensee

that a particular official has been designated to receive the notice

and statement specified in paragraphs (a) (3) and (4) of this section,

the licensee shall provide the information to that designated official.

(d) Alternatives to waiting period. The provisions of paragraph (a)

of this section shall not apply if--

(1) The transferee has presented to the licensee a written

statement, issued by the chief law enforcement officer of the

transferee's place of residence, stating that the transferee requires

access to a handgun because of a threat to the life of the transferee

or of any member of the household of the transferee. The written

statement must have been issued by the chief law enforcement officer

during the 10-day period ending on the date that the transferee has

informed the licensee of the transferee's intention to obtain a

handgun. The written statement shall be on a letter bearing the

letterhead of the chief law enforcement officer and shall be signed by

the officer and dated;

(2) The transferee has presented to the licensee a permit or

license that--

(i) Allows the transferee to possess or acquire a handgun;

(ii) Was issued not more than 5 years earlier by the State in which

the transfer is to take place; and

(iii) The law of the State provides that such a permit is to be

issued only after an authorized government official has verified that

the information available to such official does not indicate that

possession of a handgun by the transferee would be in violation of

Federal, State, or local law;

(3) The law of the State requires that, before any licensed

importer, licensed manufacturer, or licensed dealer completes the

transfer of a handgun to an individual who is not licensed under this

part, an authorized government official verify that the information

available to such official does not indicate that possession of a

handgun by the transferee would be in violation of law;

(4) The handgun is subject to the provisions of the National

Firearms Act and has been approved for transfer under 27 CFR Part 179;

or

(5) On application of the licensee, in accordance with the

provisions of Sec. 178.150, the Director has certified that compliance

with paragraph (a) of this section is impracticable.

(6) The documents referred to in paragraphs (d)(1) and (2) of this

section shall be retained in the records of the licensee in accordance

with the provisions of Sec. 178.131.

(e) Disclosure of information. (1) Any licensed importer, licensed

manufacturer, or licensed dealer who, after the transfer of a handgun

to a nonlicensee, receives a report from a chief law enforcement

officer containing information that receipt or possession of the

handgun by the transferee violates Federal, State, or local law shall,

within 1 business day (meaning a day on which State offices are open)

after receipt of the report, communicate any information the licensee

has concerning the transfer and the transferee, including a copy of

Form 4473 required by Sec. 178.124, to the chief law enforcement

officer of the place of business of the licensee and to the chief law

enforcement officer of the place of residence of the transferee. The

licensee may also provide this information to the local ATF office.

(2) Any licensed importer, licensed manufacturer, or licensed

dealer who receives information from a chief law enforcement officer

regarding the transfer of a handgun to a nonlicensee, not otherwise

available to the public, shall not disclose such information except to

the transferee, to law enforcement authorities, or pursuant to the

direction of a court of law.

(Approved by the Office of Management and Budget under control

number 1512-0520)

Par. 5. Section 178.126a is amended by adding a fifth sentence to

the text preceding Example 1 to read as follows:

Sec. 178.126a Reporting multiple sales or other disposition of pistols

and revolvers.

* * * The licensee shall retain one copy of Form 3310.4 and attach

it to the firearms transaction record, Form 4473, executed upon

delivery of the pistols or revolvers.

* * * * *

Par. 6. Section 178.129(b) and the parenthetical text at the end of

the section are revised to read as follows:

Sec. 178.129 Record retention.

* * * * *

(b) Firearms transaction record, statement of intent to obtain a

handgun, and reports of multiple sales or other disposition of pistols

and revolvers. Licensees shall retain each Form 4473 and Form 4473(LV)

for a period of not less than 20 years after the date of sale or

disposition. Licensees shall retain each Form 5300.35 for a period of

not less than 5 years after notice of the intent to obtain the handgun

was forwarded to the chief law enforcement officer. Licensees shall

retain each copy of Form 3310.4 for a period of not less than 5 years

after the date of sale or other disposition.

* * * * *

(Paragraph (b) approved by the Office of Management and Budget

under control numbers 1512-0520 and 1512-0006; all other recordkeeping

approved by the Office of Management and Budget under control number

1512-0129.)

Par. 7. Section 178.130 is amended by revising paragraphs (a) and

(e) to read as follows:

Sec. 178.130 Statement of intent to obtain a handgun after February

27, 1994, and before November 30, 1998.

(a)(1) Except as provided in Secs. 178.102(d) and 178.131, a

licensed importer, licensed manufacturer, or licensed dealer shall not

sell, deliver, or transfer a handgun (other than the return of a

handgun to the person from whom it was received) unless the licensee

has received from the transferee a statement of intent to obtain a

handgun on Form 5300.35 in duplicate. The statement shall contain the

transferee's name, address, and date of birth. The transferee must date

and execute the sworn statement contained on the form showing that the

transferee [[Page 10788]] is not under indictment for a crime

punishable by imprisonment for a term exceeding 1 year; has not been

convicted in any court of such a crime; is not a fugitive from justice;

is not an unlawful user of or addicted to any controlled substance; has

not been adjudicated as a mental defective or been committed to a

mental institution; is not an alien who is illegally or unlawfully in

the United States; has not been discharged from the Armed Forces under

dishonorable conditions; and is not a person who, having been a citizen

of the United States, has renounced such citizenship.

(2) In order to facilitate the transfer of a handgun and enable the

chief law enforcement officer to verify the identity of the person

acquiring the handgun, Form 5300.35 requests certain additional

optional information. This information includes the social security

number, height, weight, sex, alien registration number, and place of

birth of the transferee. Such information may help avoid the

possibility of the transferee being misidentified as a felon or other

prohibited person.

* * * * *

(e) A licensee may obtain, upon request, an emergency supply of

Forms 5300.35 from any regional director (compliance) or local ATF

office (compliance).

* * * * *

Par. 8. Section 178.131 is revised to read as follows:

Sec. 178.131 Handgun transactions not subject to the waiting period.

(a)(1) A licensed importer, licensed manufacturer, or licensed

dealer whose sale, delivery, or transfer of a handgun is made pursuant

to the alternative provisions of Sec. 178.102(d) and is not subject to

the waiting period prescribed by Sec. 178.102(a) shall maintain the

records required by this paragraph.

(2) If the transfer is pursuant to a written statement of the chief

law enforcement officer in accordance with Sec. 178.102(d)(1), the

licensee shall retain such statement and attach it to the firearms

transaction record, Form 4473, executed upon delivery of the handgun.

(3) If the transfer is pursuant to a permit or license in

accordance with Sec. 178.102(d)(2), the licensee shall either retain a

copy of the purchaser's permit or license and attach it to the firearms

transaction record, Form 4473, or record on the firearms transaction

record, Form 4473, any identifying number, the date of issuance, and

the expiration date (if provided) from the permit or license.

(4) If the transfer is pursuant to a verification of eligibility to

possess a handgun (e.g., an instant record check) by a government

official in accordance with Sec. 178.102(d)(3), the licensee shall

attach to the firearms transaction record, Form 4473, executed upon

delivery of the handgun, a statement showing the date of verification

and any identifying number assigned to the transaction by the agency

responsible for conducting the verification of eligibility.

(5) If the transfer is pursuant to a certification by ATF in

accordance with Secs. 178.102(d)(5) and 178.150, the licensee shall

maintain the certification as part of the records required to be kept

under this subpart and for the period prescribed for the retention of

Form 5300.35 in Sec. 178.129(b).

(b) The requirements of this section shall be in addition to any

other recordkeeping requirements contained in this part. (Approved by

the Office of Management and Budget under control number 1512-0520)

Par. 9. Section 178.150 is amended by revising the introductory

text of paragraph (a) to read as follows:

Sec. 178.150 Alternative to handgun waiting period in certain

geographical locations.

(a) The provisions of Sec. 178.102(d)(5) shall be applicable when

the Director has certified that compliance with the waiting period

provisions of Sec. 178.102(a) is impracticable because:

* * * * *

Par. 10. In Subpart I, Sec. 178.151, Seizure and forfeiture, is

redesignated as Sec. 178.152.

Signed: December 6, 1994.

Daniel R. Black,

Acting Director.

Approved: December 27, 1994.

John P. Simpson,

Deputy Assistant Secretary, Regulatory, Tariff and Trade Enforcement.

[FR Doc. 95-4886 Filed 2-24-95; 8:45 am]

BILLING CODE 4810-31-U