Implementation of Public Law 103-322, the Violent Crime Control and Law Enforcement Act of 1994 (94F-022P)

DEPARTMENT OF THE TREASURY

Bureau of Alcohol, Tobacco and Firearms

27 CFR Parts 55, 72, 178 and 179

[T.D. ATF-396; Ref: T.D. ATF-363 and Notice No. 807; T.D. ATF-383 and

Notice No. 833]

RIN 1512-AB35

Implementation of Public Law 103-322, the Violent Crime Control

and Law Enforcement Act of 1994 (94F-022P)

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

ACTION: Final rule, Treasury decision.

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SUMMARY: These final regulations implement the provisions of Public Law

103-322, the Violent Crime Control and Law Enforcement Act of 1994.

This Treasury decision adopts the regulations substantially as proposed

in Notice No. 807, as amended by Notice No. 833.

The temporary regulations published in the Federal Register on

April 6, 1995

[[Page 12644]]

(T.D. ATF-363) and July 29, 1996 (T.D. ATF-383), are adopted as final

upon the effective date of this final rule.

EFFECTIVE DATE: This rule is effective on May 15, 1998.

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), and Title XI of the Organized Crime Control Act of

1970, as amended (18 U.S.C. Chapter 40). 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.

Temporary Rule (T.D. ATF-363) and Notice of Proposed Rulemaking

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

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

17446). The temporary regulations implemented the law by restricting

the manufacture, transfer, and possession of certain semiautomatic

assault weapons and large capacity ammunition feeding devices, with

certain exceptions. Regulations were also prescribed with regard to

reports of theft or loss of firearms from a licensee's inventory or

collection, new requirements for Federal firearms licensing, responses

by firearms licensees to requests for gun trace information, and

possession of firearms by persons subject to restraining orders. 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.

Temporary Rule (T.D. ATF-383) and Notice of Proposed Rulemaking

ATF received 129 comments in response to Notice No. 807. Fifty-two

commenters, representing 40 percent of the total comments received,

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

importation of large capacity ammunition feeding devices after the date

of enactment regardless of the date of manufacture of such devices.

They also contended that the marking requirements prescribed in the

regulations pursuant to T.D. ATF-363 (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.

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

mentioned litigation, ATF 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. Consequently, on July 29, 1996, ATF published in the Federal

Register another temporary rule reflecting this position (T.D. ATF-383,

61 FR 39320). The temporary rule also provided guidance to importers on

acceptable evidence that magazines sought to be imported were

manufactured on or before September 13, 1994.

On July 29, 1996, the Bureau also published a notice of proposed

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

833, 61 FR 39372). The comment period for Notice No. 833 closed on

October 28, 1996.

Analysis of Comments--Notice No. 807

ATF received 129 comments in response to Notice No. 807. Fifty-

seven comments, representing 44 percent of the comments received,

expressed general support for the temporary regulations. However, these

commenters requested that the final rule include a number of changes.

One commenter recommended that the term ``pistol grip'' be defined

so that it includes so-called thumbhole stocks. The term

``semiautomatic assault weapon'' is defined in the Act as including

semiautomatic rifles and semiautomatic shotguns which have 2 or more of

the features specified in the law. One of the features specified is a

``pistol grip that protrudes conspicuously beneath the action of the

weapon.'' The commenter stated that thumbhole stocks function in the

same manner as pistol grips and, therefore, should be included within

the definition of this term.

ATF agrees with the commenter that replacing a separate pistol grip

with a thumbhole stock does not remove the pistol grip as a feature. A

semiautomatic rifle or semiautomatic shotgun with a thumbhole stock and

one or more of the other features specified in the law would be a

``semiautomatic assault weapon'' as defined. However, ATF does not

believe it is necessary to provide a separate definition of ``pistol

grip'' or any of the other features listed in the statute.

Several commenters recommended that Federal firearms licensees be

required to swear under penalties of perjury that semiautomatic assault

weapons and large capacity ammunition feeding devices will be

transferred only to lawful recipients. The regulations in 27 CFR 178.40

and 178.40a provide that manufacturers and dealers may manufacture and

deal in semiautomatic assault weapons and large capacity ammunition

feeding devices manufactured after September 13, 1994, upon obtaining

evidence that the weapons and devices will only be disposed of to law

enforcement agencies and law enforcement officers.

ATF does not believe that imposing such a requirement on licensees

is necessary. Pursuant to 18 U.S.C. Sec. 922(m), it is unlawful for any

licensee to make a false entry in any required record. A violation of

this section can result in revocation of the license or in criminal

prosecution. ATF believes these sanctions are adequate to deter most

licensees from falsifying documents. Accordingly, ATF is not adopting

the changes recommended by the commenters.

ATF also received comments concerning the wording of the export

marking requirement for semiautomatic assault weapons and large

capacity ammunition feeding devices. The commenters recommended that

the wording of the present regulatory requirement, ``FOR EXPORT ONLY,''

be changed to read ``DOMESTIC SALE UNLAWFUL, FOR EXPORT ONLY.'' The

commenters stated their belief that this language more adequately

conveys the fact that such weapons and devices are highly restricted

and are illegal for domestic sale.

ATF believes that the wording of the current export marking

requirement provides sufficient notice that these weapons and devices

are not intended for domestic sale. Furthermore, to ATF's knowledge,

the current marking requirement has not resulted in any confusion among

the general public. Accordingly, the Bureau has determined that the

proposed amendment is unwarranted and would impose an unnecessary

burden on the industry.

Several commenters stated that variances from the marking

requirements imposed on semiautomatic assault weapons and large

capacity ammunition feeding devices should not be allowed. Current

regulations provide that the Director may authorize other means of

[[Page 12645]]

identifying assault weapons and feeding devices when such other

identification is reasonable and will not hinder the effective

administration of the regulations. The commenters contend that marking

variances could be used by manufacturers to create confusion as to the

legal status of post-ban weapons and feeding devices.

ATF is not adopting the commenters' suggestion. The decision to

allow marking variances for semiautomatic assault weapons and large

capacity ammunition feeding devices is consistent with that for other

firearms. In the case of such weapons and devices, ATF has authorized

variances from the marking requirements only for law enforcement and

military purposes where there is a demonstrated need for such a

variance.

One commenter states that the current regulations requiring that

assault weapons be marked ``RESTRICTED LAW ENFORCEMENT/GOVERNMENT USE

ONLY'' raises concerns in the case of weapons that are reconfigured so

that they no longer meet the definition of ``semiautomatic assault

weapon.'' The commenter raised the case of an assault weapon

transferred to a law enforcement officer upon retirement, which is

permissible under the law. If the retiree subsequently decides to

remove features from the weapon so that it is no longer subject to the

restrictions of the law, he may have difficulty selling it, due to the

restrictive marking. To address this potential problem, the commenter

recommends that ATF amend the regulations to require only that the date

of manufacture be marked on the weapon.

ATF maintains that the restrictive language required in the current

regulations clearly provides notice to law enforcement officers and the

general public that semiautomatic assault weapons may be lawfully

possessed only by Government agencies and law enforcement personnel.

ATF does not believe that placing the date of manufacture on the

weapons provides this information. Accordingly, ATF is not adopting

this comment.

To address the commenter's concern about reconfiguration of an

assault weapon, if the weapon has been modified so it no longer meets

the definition of ``semiautomatic assault weapon,'' it is not subject

to the restrictions of the law. However, ATF would caution that a

dealer obtaining assault weapons by falsely representing that the

weapons are for resale to law enforcement, but who actually intends to

reconfigure the weapons so they no longer meet the definition of

assault weapon, would possess the weapons in violation of 18 U.S.C.

Sec. 922(v). The Federal firearms licenses of such dealers would also

be subject to revocation.

The same commenter concerned about reconfiguration also had

recommendations concerning the documentation required for law

enforcement officers to acquire assault weapons for official use. The

regulations at 27 CFR 178.132 require licensees to obtain written

statements, under penalty of perjury, from the purchasing officer and a

supervisory officer, stating that the weapon is for use in performing

official duties and is not being acquired for personal use or for

purposes of transfer or resale. The commenter requests that ATF amend

the regulations to permit officers to obtain semiautomatic assault

weapons for purposes of familiarization, marksmanship, and training.

The commenter also contends that the regulation appears to prevent the

officer from reselling the weapon, even if reconfigured so that it no

longer meets the definition of ``semiautomatic assault weapon.''

It is unnecessary to amend section 178.132 to include

familiarization, marksmanship, and training as valid purposes for law

enforcement officers obtaining semiautomatic assault weapons. If these

activities are part of a law enforcement officer's official duties and

a supervisor is willing to submit a statement certifying to such

duties, the weapon may be lawfully acquired for such purposes. ATF does

not believe it is necessary to spell out every possible official use in

the regulation.

As for the comment concerning resale, neither the law nor the

regulation prevents future resale of the weapon by the purchasing

officer. The regulation merely requires the officer to state, under

penalty of perjury, that the weapon is not being acquired for purposes

of transfer or resale. The regulation merely requires that the officer

acquire the weapon for official use and not for purposes of transfer or

resale. The issue concerning reconfiguration is discussed above.

Several clarifying amendments have been made to Sec. 178.132. The

regulation is being amended to provide that the written statement

prepared by the purchaser's supervisor must be on agency letterhead.

The regulation is also being revised to provide that this section

applies to the transfer of assault weapons and large capacity

ammunition feeding devices to employees or contractors of nuclear

facilities.

Analysis of Comments--Notice No. 833

ATF received one comment in response to Notice No. 833. This

commenter objected to ATF requiring an import permit for ammunition

feeding devices manufactured on or before September 13, 1994, as

specified in Sec. 178.119.

In order to ensure compliance with the provisions of the law and to

enforce the marking requirements of the statute, ATF has determined

that it is necessary to require importers to obtain import permits for

feeding devices manufactured on or before September 13, 1994. ATF

maintains that this requirement is necessary in order to determine

whether the devices are subject to the restrictions of the law. Since

import permits for such devices are already required pursuant to the

Arms Export Control Act, 22 U.S.C. Sec. 2778, and implementing

regulations in 27 CFR Part 47, the burden imposed by this requirement

is minimal. Accordingly, the Bureau is adopting the regulation as

proposed in Notice No. 833.

Miscellaneous Amendments to Regulations

Section 923(g)(7) of the GCA and its implementing regulation in 27

CFR 178.25a require Federal firearms licensees to respond to requests

for firearms trace information within 24 hours after receipt of the

request. Personnel at the National Tracing Center have had problems

with licensees providing the requested trace information on crime guns

within the required 24-hour period. A question has arisen whether the

licensee must provide the requested trace information within the 24-

hour period or whether licensees would comply with the requirement by

simply acknowledging the request and providing the requested

information at a later time. The statute and regulation require

licensees to provide the requested trace information within the 24-hour

period. To ``respond'' to a trace request within the meaning of the

statute and regulation means to provide the information. Interpreting

the statute otherwise gives the statute no meaning and defeats its

purpose, to enable ATF to obtain trace information quickly by

telephone. Accordingly, Sec. 178.25a is being amended to clarify that

licensees must provide the requested trace information within the 24-

hour period. A technical amendment is also being made at the end of

this section to include the control number assigned by the Office of

Management and Budget (OMB).

A technical amendment is also being made to the marking

requirements in 27 CFR 178.92. Language has been added to

Sec. 178.92(c)(1)(iii), relating to markings for large capacity

ammunition

[[Page 12646]]

feeding devices, to make it clear that importers who import such

devices for purposes of export shall mark them ``FOR EXPORT ONLY.''

Finally, ATF is making a technical amendment to the definition of

``firearm'' in 27 CFR 179.11 with respect to the sentence describing

barrel length measurement. The amendment makes it clear that

measurements do not apply to revolvers. It also clarifies that the

method specified does not apply to revolving cylinder shotguns.

Executive Order 12866

It has been determined that this final 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

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 collections of information contained in this final regulation

have 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. 3507(d)) under control numbers 1512-0017, 1512-0018, 1512-0019,

1512-0526, and 1512-0387. Other collections of information contained in

this final rule have been approved under control numbers: 1512-0522 and

1512-0523 (Sec. 178.47); 1512-0524 (Sec. 178.39a); and 1512-0525

(Sec. 178.52). 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.

The collections of information in this final regulation are in 27

CFR 178.25a, 178.40(c), 178.40a(c), 178.119, 178.129(e), 178.132, and

178.133. This information is required by ATF to ensure compliance with

the provisions of Pub. L. 103-322 (108 Stat. 1796). The likely

respondents and recordkeepers are individuals and businesses. The

estimated average annual burden associated with the collections of

information in this regulation is 6 minutes per respondent for control

numbers 1512-0017, 1512-0018, and 1512-0019, and 2.52 hours per

respondent or recordkeeper for control number 1512-0526.

Comments concerning the accuracy of this burden estimate and

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

Document Services 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

Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms,

Office of Information and Regulatory Affairs, Washington, DC 20503.

Disclosure

Copies of the temporary rules, the notices 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

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.

27 CFR Part 179

Administrative practice and procedure, Arms and munitions,

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

Military personnel, Penalties, Reporting requirements, Research,

Seizures and forfeitures, and Transportation.

Authority and Issuance

Accordingly, 27 CFR Parts 55, 72, 178 and 179 are amended as

follows:

Paragraph 1. The temporary rule published April 6, 1995 (60 FR

17446), amended July 29, 1996 (61 FR 39320) and further amended

February 25, 1997 (62 FR 8374) is adopted as final.

Paragraph 1a. The temporary rule published July 29, 1996 (61 FR

39320) is adopted as final.

PART 178--COMMERCE IN FIREARMS AND AMMUNITION

Paragraph 1b. 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).

Par. 2. Section 178.25a is amended by revising the second sentence

and by adding a parenthetical text at the end of the section to read as

follows:

Sec. 178.25a Responses to requests for information.

* * * The requested information shall be provided orally to the ATF

officer within the 24-hour period. * * *

(Approved by the Office of Management and Budget under control

number 1512-0387)

Sec. 178.92 [Amended]

Par. 3. Section 178.92(c)(1)(iii) is amended by adding the words

``or imported'' after the words ``in the case of devices

manufactured''.

Par. 4. Section 178.132 is revised to read as follows:

Sec. 178.132 Dispositions of semiautomatic assault weapons and large

capacity ammunition feeding devices to law enforcement officers for

official use and to employees or contractors of nuclear facilities.

Licensed manufacturers, licensed importers, and licensed dealers in

semiautomatic assault weapons, as well as persons who manufacture,

import, or deal in large capacity ammunition feeding devices, may

transfer such weapons and devices manufactured after September 13,

1994, to law enforcement officers and to employees or contractors of

nuclear facilities with the following documentation:

(a) Law enforcement officers. (1) A written statement from the

purchasing officer, under penalty of perjury, stating that the weapon

or device is being purchased for use in performing official duties and

that the weapon or device is not being acquired for personal use or for

purposes of transfer or resale; and

(2) A written statement from a supervisor of the purchasing

officer, on agency letterhead, under penalty of perjury, stating that

the purchasing officer is acquiring the weapon or device for use in

official duties, that the firearm is suitable for use in performing

official duties, and that the weapon or device is not being acquired

for personal use or for purposes of transfer or resale.

(b) Employees or contractors of nuclear facilities. (1) Evidence

that the employee is employed by a nuclear facility licensed pursuant

to 42 U.S.C. 2133 or evidence that the contractor has a valid contract

with such a facility.

(2) A written statement from the purchasing employee or contractor

under penalty of perjury, stating that the weapon or device is being

purchased for one of the purposes authorized in

[[Page 12647]]

Sec. Sec. 178.40(b)(7) and 178.40a(b)(3), i.e., on-site physical

protection, on-site or off-site training, or off-site transportation of

nuclear materials.

(3) A written statement from a supervisor of the purchasing

employee or contractor, on agency or company letterhead, under penalty

of perjury, stating that the purchasing employee or contractor is

acquiring the weapon or device for use in official duties, and that the

weapon or device is not being acquired for personal use or for purposes

of transfer or resale.

(Approved by the Office of Management and Budget under control

number 1512-0526)

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

FIREARMS

Par. 5. authority citation for 27 CFR Part 179 continues to read

as follows:

Authority: 26 U.S.C. 7805.

Par. 6. Section 179.11 is amended by revising the third sentence in

the definition of ``Firearm'' to read as follows:

Sec. 179.11 Meaning of terms.

* * * * *

Firearm. * * * For purposes of this definition, the length of the

barrel having an integral chamber(s) on a shotgun or rifle shall be

determined by measuring the distance between the muzzle and the face of

the bolt, breech, or breech block when closed and when the shotgun or

rifle is cocked. * * *

* * * * *

Signed: July 25, 1997.

John W. Magaw,

Director.

Approved: August 11, 1997.

John P. Simpson,

Deputy Assistant Secretary (Regulatory, Tariff and Trade Enforcement)

Editorial note: This document was received at the Office of the

Federal Register on March 10, 1998.

[FR Doc. 98-6591 Filed 3-13-98; 8:45 am]

BILLING CODE 4810-31-P