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

Federal RegisterFeb 19, 1998

Ask Donna

What actually matters in this document.

Text

DEPARTMENT OF THE TREASURY

Bureau of Alcohol, Tobacco and Firearms

27 CFR Parts 178 and 179

[Notice No. 857]

RIN: 1512-AB67

Implementation of Public Law 103-159, Relating to the Permanent

Provisions of the Brady Handgun Violence Prevention Act (93F-057P)

AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Department of

the Treasury.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Bureau of Alcohol, Tobacco and Firearms (ATF) is proposing

to amend the regulations to implement the provisions of Public Law 103-

159, relating to the permanent provisions of the Brady Handgun Violence

Prevention Act. These proposed regulations implement the law by

requiring, with some exceptions, a licensed firearms importer,

manufacturer, or dealer to contact the

[[Page 8380]]

national instant criminal background check system (NICS) before

transferring any firearm to an unlicensed individual. NICS will advise

the licensee whether the system contains any information that the

prospective purchaser is prohibited by law from possessing or receiving

a firearm.

DATES: Written comments must be received on or before May 20, 1998.

ADDRESSES: Send written comments to: Chief, Regulations Division;

Bureau of Alcohol, Tobacco and Firearms; P.O. Box 50221; Washington, DC

20091-0221; ATTN: Notice No. 857.

FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Regulations

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

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

SUPPLEMENTARY INFORMATION:

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 (the ``Brady law''), imposed as an interim

measure a waiting period of 5 days before a licensed importer,

manufacturer, or dealer may sell, deliver, or transfer a handgun to an

unlicensed individual. The waiting period applies only in States

without an acceptable alternate system of conducting background checks

on handgun purchasers. The interim provisions of the Brady law, 18

U.S.C. 922(s), became effective on February 28, 1994, and cease to

apply on November 30, 1998.

Permanent Provisions of the Brady Law

The permanent provisions of the Brady law provide for the

establishment of a national instant criminal background check system

(``NICS'') that a firearms licensee must contact before transferring

any firearm to unlicensed individuals. The law requires that the

permanent system be established not later than November 30, 1998. While

the interim provisions apply only to handguns, the permanent provisions

of the Brady law will apply to all firearms. Furthermore, while there

is no five-day waiting period under the permanent provisions, the

system may take up to three business days to notify the licensee

whether receipt of a firearm by the prospective purchaser would be in

violation of law.

National Instant Criminal Background Check System

The Brady law requires that the Attorney General establish a

permanent national instant criminal background check system that any

licensee may contact, by telephone or by other electronic means in

addition to the telephone, for information on whether receipt of a

firearm by a prospective transferee would violate Federal or State law.

The law requires that the permanent system be established not later

than November 30, 1998.

Upon establishment of the system, the Attorney General is required

to notify each firearms licensee and the chief law enforcement officer

of each State of the existence and purpose of NICS and the means to be

used to contact NICS. Beginning on the date that is 30 days after the

Attorney General notifies firearms licensees that NICS is established,

the permanent provisions of Brady, 18 U.S.C. 922(t), become effective.

Statutory Requirements

Section 922(t) generally makes it unlawful for any licensed

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

transfer a firearm to an unlicensed individual (transferee), unless--

1. Before the completion of the transfer, the licensee contacts the

national instant background check system;

2. The system provides the licensee with a unique identification

number signifying that transfer of the firearm would not be in

violation of law OR 3 business days (meaning a day on which State

offices are open) have elapsed from the date the licensee contacted the

system and the system has not notified the licensee that receipt of the

firearm by the transferee would be in violation of law; and

3. The licensee verifies the identity of the transferee by

examining a valid identification document containing a photograph of

the transferee.

Penalties for Noncompliance

Section 922(t) provides that a firearms licensee who transfers a

firearm and knowingly fails to comply with the requirements of the law,

in a case where compliance would have revealed that the transfer was

unlawful, may be subject to license suspension or revocation and fined

not more than $5,000.

Proposed Regulations

ATF is proposing regulations to implement the requirements placed

on firearms licensees by section 922(t). The Department of Justice will

be promulgating regulations establishing the methods of operation for

NICS, including policies and procedures for ensuring the privacy and

security of the system, and appeal procedures for individuals who are

determined by NICS to be ineligible to purchase a firearm. Accordingly,

these issues are not addressed in the ATF regulations.

Time of NICS Check

The Brady law generally provides that a licensed importer,

manufacturer or dealer may not transfer a firearm to an unlicensed

individual unless, before the completion of the transfer, the licensee

contacts NICS. It is clear that the law contemplates that the licensee

should contact NICS immediately prior to the transfer of a firearm. ATF

recognizes that there may be circumstances in which there is an

unavoidable delay between the NICS check and the transfer of the

firearm. For example, many States have waiting periods for the sale of

certain types of firearms. Nonetheless, ATF believes that the

regulations should impose a time frame beyond which a licensee can no

longer rely upon a ``stale'' NICS check in transferring a firearm.

In accordance with the above, ATF is proposing to amend

Sec. 178.124(c) to require licensees to contact NICS after the

transferee has executed the firearms transaction record, Form 4473. ATF

is also proposing to amend Sec. 178.102(c) to provide that a licensee

may not rely upon a NICS check that was conducted more than 30 calendar

days prior to the transfer of the firearm. This will ensure that

licensees are not relying upon ``stale'' NICS checks. Finally, the

proposed regulations clarify that a separate NICS check must be

conducted for each separate transaction. While an individual may

purchase several firearms in one transaction, a licensee must initiate

a separate NICS check for each separate transaction. Examples are

provided in section 178.102(c) of the proposed regulations.

Section 922(t)(2) provides that if NICS notifies the licensee that

the information available to the system does not indicate that the

prospective purchaser's receipt or possession of the firearm would

violate the law, the system will assign a unique identification number

to the transfer and provide the licensee with the number. The

Department of Justice has advised ATF that NICS will also provide

licensees with a unique identification number in the event that the

transfer is denied or delayed by NICS. Accordingly, the proposed

regulations require that licensees record any responses received from

the system,

[[Page 8381]]

in addition to the unique identification number (if any) provided by

the system, on the firearms transaction record (ATF Form 4473). The

proposed regulations also require that licensees maintain a copy of

each Form 4473 for which a NICS transaction number has been received,

regardless of whether the transfer of the firearm was completed. This

will enable ATF to determine compliance with the law by licensees and

purchasers.

Exceptions to NICS

The statute provides the following exceptions to the national

instant background check system:

1. The transferee presents to the licensee a permit which was

issued not more than 5 years earlier by the State in which the transfer

is to take place and which allows the transferee to possess or acquire

a firearm, and the law of the State provides that such a permit is to

be issued only after an authorized government official has verified

that available information does not indicate that possession of a

firearm by the transferee would be in violation of the law;

2. Purchases of firearms 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); or

3. Purchases of firearms for which the Secretary has certified that

compliance with NICS 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 chief law enforcement

officer of the area, and there is an absence of telecommunications

facilities in the geographical area in which the business premises are

located.

Proposed regulations which implement these provisions of the law

are set forth in Secs. 178.102(d), 178.131, and 178.150.

It should be noted that State ``instant check'' and ``point of sale

check'' systems will not qualify as alternatives to the NICS check

required by the permanent provisions of the Brady law. Therefore, NICS

checks must be conducted on firearms purchasers in those States.

With respect to purchases of firearms which are subject to the

National Firearms Act, ATF is proposing to amend Sec. 179.86 to provide

that in addition to any other records checks that may be conducted to

determine whether the transfer, receipt, or possession of a firearm

would place the transferee in violation of law, the Director must

contact NICS.

Permits

The Brady law provides that a licensee is not required to initiate

a NICS check where the purchaser presents a permit that allows the

purchaser to ``possess or acquire a firearm.'' The proposed regulations

clarify that this exception includes permits to carry concealed weapons

as well as permits specifically authorizing the purchase of a firearm.

For purposes of the permanent provisions of the Brady law, it is

irrelevant whether the permit covers the type of firearm that is being

purchased. For example, a licensee need not initiate a NICS check where

an individual who wishes to purchase a rifle presents a handgun permit,

as long as that permit meets all the requirements of the Brady law. The

critical issue is not the type of firearm for which the permit was

issued, but whether the State has conducted a background check on that

individual to ensure that the individual is not prohibited from

possessing a firearm. Of course, all such transactions must still

comply with State law.

NICS Checks in Conjunction With the Issuance of Permits

The law provides that the permit must have been issued not more

than 5 years earlier by the State in which the transfer is to take

place. Furthermore, the permit is a valid alternative under the Brady

law only if 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 firearm by such other person would be in violation of

law.

In construing the language of the statute, it is ATF's position

that as of November 30, 1998, ``the information available to'' State

officials will include the NICS database. Accordingly, the proposed

regulations provide that permits issued on or after November 30, 1998,

will be valid alternatives under the permanent provisions of the Brady

law only if the State officials conduct a NICS check on all permit

applicants. It should be noted that the NICS database will provide a

more extensive background check of the purchaser than other record

systems containing only criminal records. NICS will include records

from the Defense Department concerning dishonorable discharges, records

from the State Department regarding individuals who have renounced

United States citizenship, and other information not available in

criminal records.

Permits Issued to Persons Prohibited Under Federal Law

The proposed regulations provide that a permit would be a valid

alternative only if the issuing State verifies that possession of a

firearm by the permittee would not be in violation of Federal, State,

or local law. There may be States that would issue a permit to

individuals (such as persons who have renounced United States

citizenship or persons convicted of a misdemeanor crime of domestic

violence) even though these individuals are subject to Federal firearms

disabilities. If a State does not disqualify all individuals prohibited

under Federal law, the permits issued by that State would not be

accepted as alternatives under the permanent provisions of the Brady

law. Prior to the effective date of the permanent provisions of the

Brady law, ATF will notify licensees in each State whether or not

permits issued by that State will suffice as alternatives under the

Brady law.

Pawn Transactions

The permanent provisions of the Brady law apply to any transfer of

a firearm by a licensed importer, manufacturer, or dealer to a

nonlicensee. This includes the redemption of a pawned firearm. It

should be noted that the Violent Crime Control and Law Enforcement Act

of 1994, Public Law 103-322, amended Sec. 922(s) of the GCA to exempt

transactions involving the return of a handgun to the person from whom

it was received. Thus, the redemption of a pawned handgun by the person

from whom it was received is not subject to the waiting period and

background check requirements imposed by the interim provisions of the

Brady law. However, no such exemption appears in Sec. 922(t). Thus, the

proposed regulations would apply the permanent provisions of the Brady

law to pawn transactions.

Firearms Transaction Record (Form 4473)

In general, the regulations provide that prior to the transfer of a

firearm to a prospective purchaser, the buyer must complete, sign, and

date a firearms transaction record, Form 4473. The form requests

certain information, including the transferee's name, sex, height,

weight, race, residence address, date of birth, and place of birth. ATF

is proposing to amend the regulations to solicit additional optional

information about the purchaser, such as the

[[Page 8382]]

transferee's social security number and alien registration number (if

applicable), to facilitate the transfer of a firearm.

ATF believes this additional information will help minimize the

misidentification of firearms purchasers as felons or other prohibited

persons whose receipt and possession would violate the law. For

example, by providing a social security number, the transferee might

avoid confusion with a prohibited buyer who has the same name and date

of birth as the transferee. This would clearly help expedite the

transfer. ATF would note that ATF Form 5300.35, Statement of Intent to

Obtain a Handgun (Brady form), currently requests the purchaser's

social security number and alien registration number as optional

information. Because the NICS check will be based upon information from

the Form 4473, the proposed regulations would not require firearms

purchasers to fill out a separate Brady form.

Executive Order 12866

It has been determined that this proposed regulation is not a

significant regulatory action as defined by Executive Order 12866.

Therefore, a Regulatory Assessment is not required.

Regulatory Flexibility Act

It is hereby certified that these proposed regulations will not

have a significant economic impact on a substantial number of small

entities. The revenue effects of this rulemaking on small businesses

flow directly from the underlying statute. Likewise, any secondary or

incidental effects, and any reporting, recordkeeping, or other

compliance burdens flow directly from the statute. Accordingly, a

regulatory flexibility analysis is not required.

Paperwork Reduction Act

The collections of information contained in this notice of proposed

rulemaking have been submitted to the Office of Management and Budget

(OMB) for review in accordance with the Paperwork Reduction Act of 1995

(44 U.S.C. 3507(d)). Comments on the collections of information should

be sent to the Office of Management and Budget, Attention: Desk Officer

for the Department of the Treasury/Bureau of Alcohol, Tobacco and

Firearms (ATF), Office of Information and Regulatory Affairs,

Washington, D.C., 20503, with copies to the Chief, Document Services

Branch, Room 3450, Bureau of Alcohol, Tobacco and Firearms, 650

Massachusetts Avenue, NW., Washington, DC 20226. Comments are

specifically requested concerning:

Whether the proposed collections of information are necessary for

the proper performance of the functions of ATF, including whether the

information will have practical utility;

The accuracy of the estimated burden associated with the proposed

collections of information (see below);

How the quality, utility, and clarity of the information to be

collected may be enhanced; and

How the burden of complying with the proposed collections of

information may be minimized, including through the application of

automated collection techniques or other forms of information

technology.

The collections of information in this proposed regulation are in

Secs. 178.102, 178.124(c), 178.125(e), 178.129(b), 178.131, and

178.150. This information is required to implement the provisions of

Public Law 103-159, relating to the permanent provisions of the Brady

Handgun Violence Prevention Act. The collections of information are

required to ensure compliance with the law. The likely respondents and/

or recordkeepers are individuals and businesses.

Estimated number of respondents: 10,273,851.

Estimated total annual reporting and/or recordkeeping burden:

199,357 hours.

Estimated average annual burden per respondent and/or recordkeeper:

1.16 minutes.

Section 178.102 requires, with some exceptions, licensees to

contact NICS before transferring any firearm to an unlicensed

individual. The estimated total annual reporting and/or recordkeeping

burden associated with this requirement is 112,978 hours. Section

178.124(c) requires licensees to record on Form 4473 the date the

licensee contacts NICS and any identification number provided by NICS.

The licensee must also verify the identity of the person acquiring the

firearm by examining an identification document presented by the

transferee. Form 4473 will include certain optional information about

the purchaser, such as the person's social security number and alien

registration number. The estimated total annual reporting and/or

recordkeeping burden associated with this requirement is 53,549 hours.

Section 178.125(e) requires licensees to include in their records of

disposition the identification number provided by NICS. The estimated

total annual reporting and/or recordkeeping burden associated with this

requirement is 18,444 hours. Section 178.129(b) requires licensees to

retain a completed Form 4473 for a period of not less than 5 years

where the transfer of a firearm is not made. The estimated total annual

recordkeeping burden associated with this requirement is 553 hours.

Section 178.131 requires licensees to maintain certain records for

firearms transactions not subject to a NICS check. The estimated annual

recordkeeping burden associated with this requirement is 13,833 hours.

Section 178.150 provides for an alternative to NICS in certain

geographical locations. Licensees must submit a written application to

the Director containing certain information. The same requirement

currently applies to the waiting period provision of the Brady law for

transfers of handguns. Since this requirement was established in 1994,

no licensee has qualified for an exception from the provisions of Brady

based on geographical location. As such, ATF does not believe that

there is any reporting and/or recordkeeping burden associated with the

requirements of Sec. 178.150 with regard to NICS.

Certain collections of information contained in Sec. 178.129(b),

previously approved under control numbers 1512-0520, 1512-0006, and

1512-0524, are merely being redesignated as Sec. 178.129(c) in this

notice of proposed rulemaking. Similarly, the collections of

information in Sec. 178.129(c), (d), and (e), previously approved under

control numbers 1512-0129 and 1512-0526, are being redesignated as

Sec. 178.129(d), (e), and (f) in the proposed regulation.

An agency may not conduct or sponsor, and a person is not required

to respond to, a collection of information unless it displays a valid

control number assigned by the Office of Management and Budget.

Public Participation

ATF requests comments on the proposed regulations from all

interested persons. Comments received on or before the closing date

will be carefully considered. Comments received after that date will be

given the same consideration if it is practical to do so, but assurance

of consideration cannot be given except as to comments received on or

before the closing date.

ATF will not recognize any material in comments as confidential.

Comments may be disclosed to the public. Any material which the

commenter considers to be confidential or inappropriate for disclosure

to the public should not be included in the comment. The name of the

person submitting a comment is not exempt from disclosure.

Any interested person who desires an opportunity to comment orally

at a public hearing should submit his or her request, in writing, to

the Director within the 90-day comment period. The Director, however,

reserves the right to

[[Page 8383]]

determine, in light of all circumstances, whether a public hearing is

necessary.

Disclosure

Copies of this notice and the written comments 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 Division, Bureau of Alcohol, Tobacco and

Firearms.

List of Subjects in 27 CFR Parts 178 and 179

Administrative practice and procedure, Arms and munitions,

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

Military personnel, Penalties, Reporting and recordkeeping

requirements, Research, Seizures and forfeitures, Transportation.

Authority and Issuance

Accordingly, 27 CFR Parts 178 and 179 are amended as follows:

PART 178--COMMERCE IN FIREARMS AND AMMUNITION

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).

2. Section 178.11 is amended by adding a definition for ``NICS'' to

read as follows:

Sec. 178.11 Meaning of terms.

* * * * *

NICS. The National Instant Criminal Background Check System

established by the Attorney General pursuant to 18 U.S.C. 922(t).

* * * * *

3. Section 178.96 is amended by revising the first sentence in

paragraph (b), and by revising paragraph (c) to read as follows:

Sec. 178.96 Out-of-State and mail order sales.

* * * * *

(b) A licensed importer, licensed manufacturer, or licensed dealer

may sell a firearm that is not subject to the provisions of

Sec. 178.102(a) to a nonlicensee who does not appear in person at the

licensee's business premises if the nonlicensee is a resident of the

same State in which the licensee's business premises are located, and

the nonlicensee furnishes to the licensee the firearms transaction

record, Form 4473, required by Sec. 178.124. * * *

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

dealer may sell or deliver a rifle or shotgun, and a licensed collector

may sell or deliver a rifle or shotgun that is a curio or relic, to a

nonlicensed resident of a State other than the State in which the

licensee's place of business is located if--

(i) The purchaser meets with the licensee in person at the

licensee's premises to accomplish the transfer, sale, and delivery of

the rifle or shotgun;

(ii) The licensed importer, licensed manufacturer, or licensed

dealer complies with the provisions of Sec. 178.102;

(iii) The purchaser furnishes to the licensed importer, licensed

manufacturer, or licensed dealer the firearms transaction record, Form

4473, required by Sec. 178.124; and

(iv) The sale, delivery, and receipt of the rifle or shotgun fully

comply with the legal conditions of sale in both such States.

(2) For purposes of paragraph (c) of this section, any licensed

manufacturer, licensed importer, or licensed dealer is presumed, in the

absence of evidence to the contrary, to have had actual knowledge of

the State laws and published ordinances of both such States.

4. Section 178.97 is revised to read as follows:

Sec. 178.97 Loan or rental of firearms.

(a) A licensee may lend or rent a firearm to any person for

temporary use off the premises of the licensee for lawful sporting

purposes: Provided, That the delivery of the firearm to such person is

not prohibited by Sec. 178.99(b) or Sec. 178.99(c), the licensee

complies with the requirements of Sec. 178.102, and the licensee

records such loan or rental in the records required to be kept by him

under Subpart H of this part.

(b) A club, association, or similar organization temporarily

furnishing firearms (whether by loan, rental, or otherwise) to

participants in a skeet, trap, target, or similar shooting activity for

use at the time and place such activity is held does not, unattended by

other circumstances, cause such club, association, or similar

organization to be engaged in the business of a dealer in firearms or

as engaging in firearms transactions. Therefore, the licensing and

recordkeeping requirements contained in this part pertaining to

firearms transactions would not apply to this temporary furnishing of

firearms for use on premises on which such an activity is conducted.

5. Section 178.102 is revised to read as follows:

Sec. 178.102 Sales or deliveries of firearms on and after November 30,

1998.

(a) Background check. Except as provided in paragraph (d) of this

section, a licensed importer, licensed manufacturer, or licensed dealer

shall not sell, deliver, or transfer a firearm to any other person who

is not licensed under this part unless--

(1) Before the completion of the transfer, the licensee has

contacted NICS;

(2)(i) NICS informs the licensee that it has no information that

receipt of the firearm by the transferee would be in violation of

Federal or State law and provides the licensee with a unique

identification number; or

(ii) Three business days (meaning days on which State offices are

open) have elapsed from the date the licensee contacted NICS and NICS

has not notified the licensee that receipt of the firearm by the

transferee would be in violation of law; and

(3) The licensee verifies the identity of the transferee by

examining the identification document presented in accordance with the

provisions of Sec. 178.124(c).

(b) Unique identification number. In any transaction for which a

licensee receives a unique identification number from NICS, such number

shall be recorded on a firearms transaction record, Form 4473, which

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

provisions of Sec. 178.129. This applies regardless of whether the

transaction is approved or denied by NICS, and regardless of whether

the firearm is actually transferred.

accordance with paragraph (a) of this section may be relied upon by the

licensee only for use in a single transaction, and for a period not to

exceed 30 calendar days. If the transaction is not completed within the

30-day period, the licensee shall initiate a new NICS check prior to

completion of the transfer.

Example 1. A purchaser completes the Form 4473 on December 15,

1998, and a NICS check is initiated by the licensee on that date.

The licensee is informed by NICS that the information available to

the system does not indicate that receipt of the firearm by the

transferee would be in violation of law, and a unique identification

number is provided. However, the State imposes a 7-day waiting

period on all firearms transactions, and the purchaser does not

return to pick up the firearm until January 22, 1999. The licensee

must conduct another NICS check before transferring the firearm to

the purchaser.

Example 2. A purchaser completes the Form 4473 on January 25,

1999, and arranges

[[Page 8384]]

for the purchase of a single firearm. A NICS check is initiated by

the licensee on that date. The licensee is informed by NICS that the

information available to the system does not indicate that receipt

of the firearm by the transferee would be in violation of law, and a

unique identification number is provided. The State imposes a 7-day

waiting period on all firearms transactions, and the purchaser

returns to pick up the firearm on February 15, 1999. Before the

licensee completes Section B of the Form 4473, the purchaser decides

to purchase an additional firearm. The transfer of these two

firearms is considered a single transaction; accordingly, the

licensee may add the second firearm to the Form 4473, and transfer

that firearm without conducting another NICS check.

Example 3. A purchaser completes a Form 4473 on February 15,

1999. The licensee receives a unique identification number from NICS

on that date, Section B of the Form 4473 is completed by the

licensee, and the firearm is transferred. On February 20, 1999, the

purchaser returns to the licensee's premises and wishes to purchase

a second firearm. The purchase of the second firearm is a separate

transaction; thus, a new NICS check must be initiated by the

licensee.

(d) Exceptions to NICS check. The provisions of paragraph (a) of

this section shall not apply if--

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

license that--

(i) Allows the transferee to possess, acquire, or carry a firearm;

(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 or license

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 firearm by the transferee would be in

violation of Federal, State, or local law: Provided, That on and after

November 30, 1998, the information available to such official includes

the NICS;

(2) The firearm is subject to the provisions of the National

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

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

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

with paragraph (a)(1) of this section is impracticable.

(e) The document referred to in paragraph (d)(1) of this section

(or a copy thereof) shall be retained or the required information from

the document shall be recorded on the firearms transaction record in

accordance with the provisions of Sec. 178.131.

6. Section 178.124 is amended by revising paragraph (c), by

removing ``paragraph (c)(1)(ii)'' in paragraphs (d) and (e) and adding

in its place ``paragraph (c)(3)(iii)'', and by revising the first

sentence in paragraph (f) to read as follows:

Sec. 178.124 Firearms transaction record.

* * * * *

(c)(1) Prior to making an over-the-counter transfer of a firearm to

a nonlicensee who is a resident of the State in which the licensee's

business premises is located, the licensed importer, licensed

manufacturer, or licensed dealer so transferring the firearm shall

obtain a Form 4473 from the transferee showing the transferee's name,

sex, residence address (including county or similar political

subdivision), date and place of birth; height, weight and race of the

transferee; whether the transferee is a citizen of the United States;

the transferee's State of residence; and certification by the

transferee that the transferee is not prohibited by the Act from

transporting or shipping a firearm in interstate or foreign commerce or

receiving a firearm which has been shipped or transported in interstate

or foreign commerce or possessing a firearm in or affecting commerce.

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

NICS to verify the identity of the person acquiring the firearm, ATF

Form 4473 also requests certain optional information. This information

includes the transferee's social security number and alien registration

number (if applicable). Such information may help avoid the possibility

of the transferee being misidentified as a felon or other prohibited

person.

(3) The licensee shall identify the firearm to be transferred by

listing on the Form 4473 the name of the manufacturer, the name of the

importer (if any), the type, model, caliber or gauge, and the serial

number of the firearm. After the transferee has executed the Form 4473,

but before transferring the firearm described on the Form 4473, the

licensee:

(i) Shall comply with the requirements of Sec. 178.102 and record

on the form the date on which the licensee contacted the NICS, as well

as any response provided by the system, including any identification

number provided by the system;

(ii) Shall verify the identity of the transferee by examining the

identification document (as defined in Sec. 178.11) presented, and

shall note on the Form 4473 the type of identification used;

(iii) Shall, in the case of a transferee who is an alien legally in

the United States, cause the transferee to present documentation

establishing that the transferee is a resident of the State (as defined

in Sec. 178.11) in which the licensee's business premises is located,

and shall note on the form the documentation used. Examples of

acceptable documentation include utility bills or a lease agreement

which show that the transferee has resided in the State continuously

for at least 90 days prior to the transfer of the firearm; and

(iv) Shall sign and date the form if the licensee does not know or

have reasonable cause to believe that the transferee is disqualified by

law from receiving the firearm.

* * * * *

(f) Form 4473 shall be submitted, in duplicate, to a licensed

importer, licensed manufacturer, or licensed dealer by a transferee who

is purchasing or otherwise acquiring a firearm by other than an over-

the-counter transaction, who is not subject to the provisions of

Sec. 178.102(a), and who is a resident of the State in which the

licensee's business premises are located. * * *

* * * * *

7. Section 178.124a is amended by removing the period at the end of

the introductory text of paragraph (e) and adding in its place a colon.

8. Section 178.125(e) is amended by revising the text following the

eighth sentence to read as follows:

Sec. 178.125 Record of receipt and disposition.

* * * * *

(e) Firearms receipt and disposition by dealers. * * * The record

shall show the date of the sale or other disposition of each firearm,

the name and address of the person to whom the firearm is transferred,

or the name and license number of the person to whom transferred if

such person is a licensee, or the firearms transaction record, Form

4473, serial number if the licensed dealer transferring the firearm

serially numbers the Forms 4473 and files them numerically, and the

identification number (if any) provided by the NICS. The format

required for the record of receipt and disposition of firearms is as

follows:

[[Page 8385]]

Firearms Acquisition and Disposition Record

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Description of firearm Receipt Disposition

Address or license

No. if licensee,

Name and address or Form 4473 Identification No.

Manufacturer and/or Importer Model Serial No. Type Caliber or gauge Date or name and Date Name Serial No. if provided by NICS

license No. forms 4473 filed (if any)

numerically

* * * * *

9. Section 178.129 is amended by revising paragraph (b), by

redesignating paragraphs (c), (d), and (e) as paragraphs (d), (e), and

(f), by adding new paragraph (c), and by revising the parenthetical

text at the end of the section to read as follows:

Sec. 178.129 Record retention.

* * * * *

(b) Firearms transaction record. 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. Where a licensee has received a

transaction number from NICS for a proposed firearms transaction, but

the sale, delivery, or transfer of the firearm is not made, the

licensee shall record the transaction number on the Form 4473, and

retain the Form 4473 for a period of not less than 5 years after the

date of the NICS inquiry. Forms 4473 shall be retained in the

licensee's records as provided in Sec. 178.124(b): Provided, That Forms

4473 with respect to which a sale, delivery or transfer did not take

place shall be separately retained in alphabetical (by name of

transferee) or chronological (by date of transferee's certification)

order.

sales or other disposition of pistols and revolvers, and reports of

theft or loss of firearms. Licensees shall retain each Form 5300.35

(Statement of Intent to Obtain a Handgun(s)) 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, as defined in

Sec. 178.150(c). Licensees shall retain each copy of Form 3310.4

(Report of Multiple Sale or Other Disposition of Pistols and Revolvers)

for a period of not less than 5 years after the date of sale or other

disposition. Licensees shall retain each copy of Form 3310.11 (Federal

Firearms Licensee Theft/Loss Report) for a period of not less than 5

years after the date the theft or loss was reported to ATF.

* * * * *

(Paragraph (c) approved by the Office of Management and Budget under

control numbers 1512-0520, 1512-0006, and 1512-0524; Paragraph (f)

approved by the Office of Management and Budget under control number

1512-0526; all other recordkeeping approved by the Office of

Management and Budget under control number 1512-0129)

Sec. 178.130 [Removed]

10. Section 178.130 is removed.

11. Section 178.131 is revised to read as follows:

Sec. 178.131 Firearms transactions not subject to a NICS check.

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

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

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

the NICS check prescribed by Sec. 178.102(a) shall maintain the records

required by paragraph (a) of this section.

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

accordance with Sec. 178.102(d)(1), 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.

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

accordance with Secs. 178.102(d)(3) 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(c).

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

other recordkeeping requirements contained in this part.

12. Section 178.150 is revised to read as follows:

Sec. 178.150 Alternative to NICS in certain geographical locations.

(a) The provisions of Sec. 178.102(d)(3) shall be applicable when

the Director has certified that compliance with the provisions of

Sec. 178.102(a)(1) is impracticable because:

(1) 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;

(2) The business premises of the licensee at which the transfer is

to occur are extremely remote in relation to the chief law enforcement

officer; and

(3) There is an absence of telecommunications facilities in the

geographical area in which the business premises are located.

(b) A licensee who desires to obtain a certification under this

section shall submit a written request to the Director. Each request

shall be executed under the penalties of perjury and contain

information sufficient for the Director to make such certification.

Such information shall include statistical data, official reports, or

other statements of government agencies pertaining to the ratio of law

enforcement officers to the number of square miles of land area of a

State and statements of government agencies and private utility

companies regarding the absence of telecommunications facilities in the

geographical area in which the licensee's business premises are

located.

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

equivalent officer or the designee of any such individual.

PART 179--MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN OTHER

FIREARMS

13. The authority citation for 27 CFR Part 179 continues to read as

follows:

Authority: 26 U.S.C. 7805.

14. Section 179.86 is amended by adding a sentence at the end of

the section to read as follows:

Sec. 179.86 Action on application.

* * * In addition to any other records checks that may be conducted

to determine whether the transfer, receipt, or possession of a firearm

would place the transferee in violation of law, the Director shall

contact the National

[[Page 8386]]

Instant Criminal Background Check System.

Signed: December 31, 1997.

John W. Magaw,

Director.

Approved: January 16, 1998.

John P. Simpson,

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

[FR Doc. 98-4215 Filed 2-18-98; 8:45 am]

BILLING CODE 4810-31-P

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.