Implementation of Public Law 103-322, the Violent Crime Control and Law Enforcement Act of 1994Importation of Ammunition Feeding Devices With a Capacity of More Than 10 Rounds (94F-022P)

SUMMARY: This temporary rule amends the regulations by providing that

ammunition feeding devices with a capacity of more than 10 rounds

manufactured on or before September 13, 1994, the date of enactment of

Public Law 103-322, are eligible for importation into the United States

for general commercial sale. The temporary rule also provides guidance

on acceptable evidence that magazines sought to be imported were

manufactured on or before September 13, 1994. The temporary rule will

remain in effect until superseded by final regulations.

In the Proposed Rules section of this Federal Register, ATF is also

issuing a notice of proposed rulemaking inviting comments on the

temporary rule for a 90-day period following the publication date of

this temporary rule.

EFFECTIVE DATES: The temporary regulations are effective on July 29,

1996.

ADDRESSES: Send written comments to: Chief, Regulations Branch; Bureau

of Alcohol, Tobacco and Firearms; Washington, DC 20091-0221.

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:

Background

On September 13, 1994, Public Law 103-322 (108 Stat. 1796) was

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

U.S.C. Chapter 44). The provisions of Pub. L. 103-322, the Violent

Crime Control and Law Enforcement Act of 1994 (hereafter, ``the Act''),

became effective upon the date of enactment.

On April 6, 1995, ATF published in the Federal Register a temporary

rule (T.D. ATF-363, 60 FR 17446) implementing the provisions of the

Act. These regulations implement the law by restricting the

manufacture, transfer, and possession of certain semiautomatic assault

weapons and large capacity ammunition feeding devices. Except as

otherwise provided, the temporary regulations became effective upon the

date of publication in the Federal Register.

On April 6, 1995, the Bureau also published a notice of proposed

rulemaking cross-referenced to the temporary regulations (Notice No.

807, 60 FR 17494). The comment period for Notice No. 807 closed on July

5, 1995.

Large Capacity Ammunition Feeding Devices

The Act amended the GCA to create a new class of regulated items

termed ``large capacity ammunition feeding device.'' The Act defines

the term ``large capacity ammunition feeding device'' to mean:

[A] magazine, belt, drum, feed strip, or similar device

manufactured after the date of enactment of the [Act] that has the

capacity of, or that can be readily restored or converted to accept

more than 10 rounds of ammunition.

18 U.S.C. 921(a)(31).

The Act placed two new controls on these devices. First, it amended

18 U.S.C. 922 to make it unlawful, with certain exceptions, to transfer

or possess a large capacity ammunition feeding device. 18 U.S.C.

922(w)(1). Second, the Act imposed a requirement on manufacturers and

importers of the devices that they be marked with a serial number that

clearly shows that the devices were manufactured after the date of

enactment, and such other information as the Secretary may require by

regulations. 18 U.S.C. 923(i).

There are two exceptions to the general prohibition on transfer and

possession. The first is a ``grandfather clause'' that excepts the

possession or transfer of large capacity ammunition feeding devices

lawfully possessed on or before the date of enactment. 18 U.S.C.

922(w)(2). The second provides for, inter alia, the manufacture for,

transfer to, or possession by governmental entities and law enforcement

officers employed by such entities. 18 U.S.C. 922(w)(3)(A). Finally,

the statute establishes rules for prosecuting a person charged with an

unlawful transfer or possession of a device. If a person so charged

asserts that one of the two exceptions applies, the statute places the

burden of proof on the Government and provides that the lack of a

serial number is a presumption that the device is excepted. 18 U.S.C.

922(w)(4).

There are no exceptions to the marking requirements of section

923(i). The purpose of these temporary rules is to further implement

the marking requirements of section 923(i). These temporary regulations

are designed to ensure that only those imported devices manufactured

after the date of enactment are subject to the marking requirements.

Importation of Devices Under Current Regulations

The current temporary regulations generally prohibit the

importation of feeding devices with a capacity of more than 10 rounds

after the date of enactment. ATF has to date interpreted the

``grandfather clause'' as applying only to such devices lawfully

possessed in the United States on or before enactment. Thus, the only

devices allowed to be imported were under the governmental use

exception of section 922(w)(3). The current regulations require all

devices imported after the date of enactment to be marked ``RESTRICTED

LAW ENFORCEMENT/GOVERNMENT USE ONLY''. 27 CFR 178.92.

This interpretation failed to account for the date in the statutory

definition of ``large capacity ammunition feeding device.'' The

definition by its terms covers only devices manufactured after the date

of enactment. Consequently, a device manufactured on or before the date

of enactment is not a ``large capacity ammunition feeding device''

within the meaning of the statute, regardless of its size or capacity.

Therefore, these pre-enactment items are simply not subject to the

marking requirements or prohibition on transfer and possession.

Notice No. 807--Analysis of Comments--Large Capacity Ammunition Feeding

Device Issue

ATF received 129 comments in response to Notice No. 807. Comments

were submitted by Federal firearms licensees, nonlicensees, the medical

profession, religious groups and other organizations (e.g.,

Presbyterian Church (USA), Violence Policy Center, Coalition to Stop

Gun Violence, Handgun Control, Inc., and the National Rifle Association

of America), and members of Congress.

Fifty-two commenters, representing 40 percent of the total comments

received, objected to ATF's interpretation of the law as restricting

[[Page 39321]]

the importation of large capacity ammunition feeding devices after

September 13, 1994, regardless of the date of manufacture of such

devices. They also contended that the marking requirements prescribed

in Sec. 178.92(c) only apply to large capacity ammunition feeding

devices manufactured after the effective date of the statute. Similar

objections and arguments were raised in litigation challenging ATF's

interpretation of the law.

Amendment of Regulations Concerning Imported Magazines

The difficulty ATF faces in enforcing the marking requirements of

the statute is to identify those magazines manufactured after September

13, 1994, that are subject to the requirements. Although it is possible

in some cases to determine the date of manufacture based on physical

characteristics of particular magazines, in many cases pre-enactment

magazines are physically identical to post-enactment magazines. It is

impractical for the Government to conduct investigations abroad to

determine the date of manufacture of these foreign magazines.

After analyzing the comments received and in light of the above-

mentioned litigation, ATF has re-examined the Act and determined that

feeding devices with a capacity of more than 10 rounds manufactured on

or before September 13, 1994, are not subject to the restrictions of

the law. However, in order to facilitate the importation of such

devices, the regulations will require importers to provide certain

evidence with their import applications. The applications must state

that the devices are being imported for sale to government agencies or

qualified law enforcement officers or present reasonable evidence that

the devices were manufactured on or before September 13, 1994. Examples

of acceptable evidence are listed in the regulations and include (1)

permanent markings on the magazines or physical characteristics

indicating the date of manufacture; and (2) certifications from the

importer concerning the date of manufacture of the magazines, supported

by reasonable documentary evidence, such as commercial records. Any one

of these examples, which are not meant to be exhaustive, may be

sufficient to establish the time of manufacture. Recognizing the

legitimate business needs of the firearms industry in prompt action by

ATF on import applications, the regulations will require the Director

to act expeditiously on applications to import ammunition feeding

devices.

ATF's authority to require importers to obtain import permits for

ammunition feeding devices that were manufactured on or before

September 13, 1994, and to require importers to submit evidence of the

date of manufacture with the application for the import permit is based

on 18 U.S.C. 926(a). This section provides that the Secretary may issue

regulations necessary to carry out the provisions of the GCA.

The marking requirements of Sec. 178.92(c) are also being revised

to impose the marking requirements on persons who manufacture or import

any large capacity ammunition feeding device manufactured after

September 13, 1994. As indicated, the regulation currently imposes the

marking requirements on all devices imported after September 13, 1994,

regardless of the date of manufacture.

Finally, ATF is amending Sec. 178.116 to provide for the

conditional importation of an ammunition feeding device with a capacity

of more than 10 rounds for the purpose of examining and testing such

device in connection with the Bureau's determination as to whether the

importation of such device will be authorized.

Executive Order 12866

It has been determined that this temporary rule is not a

significant regulatory action as defined in E.O. 12866, because the

economic effects flow directly from the underlying statute and not from

this temporary rule. Therefore, a regulatory assessment is not

required.

Administrative Procedure Act

Because this document merely implements the law and because

immediate guidance is necessary to implement the provisions of the law,

it is found to be impracticable to issue this Treasury decision with

notice and public procedure under 5 U.S.C. 553(b), or subject to the

effective date limitation in section 553(d).

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 temporary rule because the agency was not

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

or any other law. Accordingly, a regulatory flexibility analysis is not

required.

Paperwork Reduction Act

This regulation is being issued without prior notice and public

procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553).

For this reason, the collections of information contained in this

regulation have been reviewed and, pending receipt and evaluation of

public comments, approved by the Office of Management and Budget (OMB)

under control numbers 1512-0017, 1512-0018, and 1512-0019. The

estimated average annual burden associated with the collections of

information in this regulation is 6 minutes per respondent. For further

information concerning the collections of information, and where to

submit comments on the collections of information and the accuracy of

the estimated burden, and suggestions for reducing this burden, refer

to the preamble to the cross-referenced notice of proposed rulemaking

published elsewhere in this issue of the Federal Register.

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

27 CFR Part 178--COMMERCE IN FIREARMS AND AMMUNITION 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. 178.40a [Amended]

Par. 2. Section 178.40a(b)(1) is amended by removing the words ``in

the United States''.

Sec. 178.57 [Amended]

Par. 3. Section 178.57(c) is amended by removing the words ``or

imported''.

Sec. 178.92 [Amended]

Par. 4. Section 178.92 is amended by removing the words ``or

imported'' in paragraphs (c)(1) and (c)(1)(iii).

Par. 5. Section 178.116 is revised to read as follows:

Sec. 178.116 Conditional importation.

The Director shall permit the conditional importation or bringing

into the United States or any possession thereof of any firearm,

firearm barrel, ammunition, or ammunition feeding

[[Page 39322]]

device as defined in Sec. 178.119(b) for the purpose of examining and

testing the firearm, firearm barrel, ammunition, or ammunition feeding

device in connection with making a determination as to whether the

importation or bringing in of such firearm, firearm barrel, ammunition,

or ammunition feeding device will be authorized under this part. An

application on ATF Form 6 for such conditional importation shall be

filed, in duplicate, with the Director. The Director may impose

conditions upon any importation under this section including a

requirement that the firearm, firearm barrel, ammunition, or ammunition

feeding device be shipped directly from Customs custody to the Director

and that the person importing or bringing in the firearm, firearm

barrel, ammunition, or ammunition feeding device must agree to either

export the firearm, firearm barrel, ammunition, or ammunition feeding

device or destroy same if a determination is made that the firearm,

firearm barrel, ammunition, or ammunition feeding device may not be

imported or brought in under this part. A firearm, firearm barrel,

ammunition, or ammunition feeding device imported or brought into the

United States or any possession thereof under the provisions of this

section shall be released from Customs custody upon the payment of

customs duties, if applicable, and in the manner prescribed in the

conditional authorization issued by the Director.

Par. 6. Section 178.119 is revised to read as follows:

Sec. 178.119 Importation of ammunition feeding devices.

(a) No ammunition feeding device shall be imported or brought into

the United States unless the Director has authorized the importation of

such device.

(b) For purposes of this section, an ``ammunition feeding device''

is a magazine, belt, drum, feed strip, or similar device for a firearm

that has a capacity of, or that can be readily restored or converted to

accept, more than 10 rounds of ammunition. The term does not include an

attached tubular device designed to accept, and capable of operating

only with, .22 caliber rimfire ammunition, or a fixed device for a

manually operated firearm, or a fixed device for a firearm listed in 18

U.S.C. 922, Appendix A.

(c) An application for a permit, ATF Form 6, to import or bring an

ammunition feeding device into the United States or a possession

thereof under this section shall be filed, in triplicate, with the

Director. The application shall contain:

(1) The name and address of the person importing the device,

(2) A description of the device to be imported, including type and

cartridge capacity, model and caliber of firearm for which the device

was made, country of manufacture, and name of the manufacturer if

known,

(3) The unit cost of the device to be imported,

(4) The country from which to be imported,

(5) The name and address of the foreign seller and the foreign

shipper,

(6) Verification that such device will be marked as required by

this part, and

(7) A statement by the importer that the device is being imported

for sale to purchasers specified in Sec. 178.40a(b) or physical or

reasonable documentary evidence establishing that the magazine was

manufactured on or before September 13, 1994. Any one of the following

examples, which are not meant to be exhaustive, may be sufficient to

establish the time of manufacture:

(i) Permanent markings or physical characteristics which establish

that the magazine was manufactured on or before September 13, 1994;

(ii) A certification from the importer, under penalty of perjury,

that the importer maintained continuous custody beginning on a date

prior to September 14, 1994, and continuing until the date of the

certification. Such certification shall also be supported by reasonable

documentary evidence, such as commercial records;

(iii) A certification from the importer, under penalty of perjury,

that the magazines sought to be imported were in the custody and

control of a foreign Government on or before September 13, 1994, along

with reasonable documentary evidence to support the certification; or

(iv) A certification from the importer, under penalty of perjury,

that the magazine was in the possession of a foreign arms supplier on

or before September 13, 1994, along with reasonable documentary

evidence to support the certification.

(d) The Director shall act upon applications to import ammunition

feeding devices as expeditiously as possible. If the Director approves

the application, such approved application shall serve as the permit to

import the device described therein, and importation of such devices

may continue to be made by the person importing such devices under the

approved application (permit) during the period specified thereon. The

Director shall furnish the approved application (permit) to the

applicant and retain two copies thereof for administrative use. If the

Director disapproves the application, the person importing such devices

shall be notified of the basis for the disapproval.

(e) An ammunition feeding device imported or brought into the

United States by a person importing such a device may be released from

Customs custody to the person importing such a device upon showing that

such person has obtained a permit from the Director for the importation

of the device to be released. In obtaining the release from Customs

custody of such a device authorized by this section to be imported

through use of a permit, the person importing such a device shall

prepare ATF Form 6A, in duplicate, and furnish the original ATF Form 6A

to the Customs officer releasing the device. The Customs officer shall,

after certification, forward the ATF Form 6A to the address specified

on the form. The ATF Form 6A shall show the name and address of the

person importing the device, the name of the manufacturer of the

device, the country of manufacture, the type, model, caliber, size, and

the number of devices released.

(f) Within 15 days of the date of release from Customs custody, the

person importing such a device shall:

(1) Forward to the address specified on the form a copy of ATF Form

6A on which shall be reported any error or discrepancy appearing on the

ATF Form 6A certified by Customs, and

(2) Pursuant to Sec. 178.92, place all required identification data

on each imported device manufactured after September 13, 1994, if same

did not bear such identification data at the time of its release from

Customs custody.

(g) The Director may authorize the conditional importation of an

ammunition feeding device as provided in Sec. 178.116.

(Paragraphs (a), (c), and (d) approved by the Office of Management

and Budget under control numbers 1512-0017 and 1512-0018; paragraphs

(e) and (f) approved by the Office of Management and Budget under

control number 1512-0019)

Signed: March 18, 1996.

Bradley A. Buckles,

Acting Director.

Approved: June 19, 1996.

John P. Simpson,

Deputy Assistant Secretary (Regulatory, Tariff and Trade Enforcement).

[FR Doc. 96-19189 Filed 7-26-96; 8:45 am]

BILLING CODE 4810-31-P