[Federal Register Volume 87, Number 2 (Tuesday, January 4, 2022)]
[Rules and Regulations]
[Pages 182-194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28398]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Bureau of Alcohol, Tobacco, Firearms, and Explosives

27 CFR Part 478

[Docket No. ATF 24P; AG Order No. 5304-2021]
RIN 1140-AA10


Secure Gun Storage and Definition of ``Antique Firearm''

AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
Department of Justice.

ACTION: Final rule.

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

SUMMARY: The Department of Justice is amending the regulations of the 
Bureau of Alcohol, Tobacco, Firearms, and Explosives (``ATF'') to 
codify into regulation certain provisions of the Omnibus Consolidated 
and Emergency Supplemental Appropriations Act, 1999. This rule amends 
ATF's regulations to account for the existing statutory requirement 
that applicants for Federal firearms dealer licenses certify that 
secure gun storage or safety devices will be available at any place 
where firearms are sold under the license to nonlicensed individuals. 
This certification is already included in the Application for Federal 
Firearms License, ATF Form 7/7CR (``Form 7/7CR''). The regulation also 
requires applicants for manufacturer or importer licenses to complete 
the certification if the licensee will have premises where firearms are 
sold to nonlicensees. Moreover, the regulation requires that the secure 
gun storage or safety devices be compatible with the firearms offered 
for sale by the licensee. Finally, it conforms the regulatory 
definitions of certain terms to the statutory language, including the 
definition of ``antique firearm,'' which is amended to include certain 
modern muzzle loading firearms.

DATES: This rule is effective February 3, 2022.

[[Page 183]]


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

SUPPLEMENTARY INFORMATION:

I. Background

    On October 21, 1998, Public Law 105-277 (112 Stat. 2681), the 
Omnibus Consolidated and Emergency Supplemental Appropriations Act, 
1999 (``the Act''), was enacted. Among other things, the Act amended 
the Gun Control Act of 1968, Public Law 90-618 (82 Stat. 1213) 
(``GCA'') (codified as amended at 18 U.S.C. chapter 44). Some of the 
GCA amendments made by the Act are as follows: \1\
---------------------------------------------------------------------------

    \1\ The Child Safety Lock Act of 2005 (``CSLA''), enacted as 
part of the Protection of Lawful Commerce in Arms Act, Public Law 
109-92 (119 Stat. 2095), amended the GCA by adding a new subsection, 
18 U.S.C. 922(z). This subsection requires licensed importers, 
manufacturers, and dealers to provide secure gun storage or safety 
devices whenever they sell, deliver, or transfer any handgun to a 
nonlicensed person. See 18 U.S.C. 922(z)(1). The CSLA was 
implemented primarily in a final rule issued shortly before the NPRM 
was issued for this rule. See Federal Firearms License Proceedings--
Hearings, 81 FR 32,230 (May 23, 2016) (amending 27 CFR 478.73, which 
provides that a notice of suspension or revocation of a license, or 
the imposition of a civil penalty, may be issued whenever the ATF 
Director has reason to believe that any licensee has violated Sec.  
922(z)(1) by selling, delivering, or transferring any handgun to any 
person other than a licensee, unless the transferee was provided 
with a secure gun storage or safety device for that handgun). 
Although the requirements of the CSLA and the regulation at issue in 
this rulemaking are in some respects similar, the two requirements 
are distinct: The CSLA requires that licensed importers, 
manufacturers, and dealers actually provide a secure gun storage or 
safety device to any nonlicensee that receives a handgun, whereas 
the regulation at issue in this rulemaking applies more broadly to 
the sale of ``firearms'' (not just handguns) to nonlicensees, but 
requires only that secure gun storage or safety devices be made 
available (not actually provided).
---------------------------------------------------------------------------

    (1) Secure Gun Storage. The Act amended section 923(d)(1) of title 
18, United States Code, to require that, with certain exceptions, 
applicants for Federal firearms dealer licenses certify the 
availability of secure gun storage or safety devices at any place where 
firearms are sold under the license to nonlicensees. 18 U.S.C. 
923(d)(1)(G). The certification requirement does not apply where a 
secure gun storage or safety device is temporarily unavailable because 
of theft, casualty loss, consumer sales, backorders from a 
manufacturer, or any other similar reason beyond the control of the 
licensee. Id.
    In addition, the Act amended 18 U.S.C. 923(e) to provide that the 
Attorney General may revoke, after notice and opportunity for hearing, 
the license of any Federal firearms licensee that fails to have secure 
gun storage or safety devices available at any place where firearms are 
sold under the license to nonlicensees, subject to the same exceptions 
noted above.
    The Act defined the term ``secure gun storage or safety device'' in 
18 U.S.C. 921(a)(34) to mean: (1) A device that, when installed on a 
firearm, is designed to prevent the firearm from being operated without 
first deactivating the device; (2) a device incorporated into the 
design of the firearm that is designed to prevent the operation of the 
firearm by anyone not having access to the device; or (3) a safe, gun 
safe, gun case, lock box, or other device that is designed to be or can 
be used to store a firearm and that is designed to be unlocked only by 
means of a key, a combination, or other similar means.
    The provisions of the Act relating to secure gun storage became 
effective April 19, 1999.
    (2) Definition of Antique Firearm. The Act amended the definition 
of ``antique firearm'' in the GCA to include certain modern muzzle 
loading firearms. Specifically, section 115 of the Act amended the 
definition of ``antique firearm'' in 18 U.S.C. 921(a)(16) to include a 
weapon that is a muzzle loading rifle, muzzle loading shotgun, or 
muzzle loading pistol; that is designed to use black powder or a black 
powder substitute; and that cannot use fixed ammunition. The term 
expressly does not include any weapon that incorporates a firearm frame 
or receiver; any firearm converted into a muzzle loading weapon; or any 
muzzle loading weapon that can be readily converted to fire fixed 
ammunition by replacing the barrel, bolt, breechblock, or any 
combination thereof. 18 U.S.C. 921(a)(16)(C).
    The provisions of the Act relating to antique firearms became 
effective upon the date of enactment, October 21, 1998.
    (3) Miscellaneous Amendments. Prior to amendment by the Act, the 
term ``rifle'' was defined in the GCA to mean ``a weapon designed or 
redesigned, made or remade, and intended to be fired from the shoulder 
and designed or redesigned and made or remade to use the energy of the 
explosive in a fixed metallic cartridge to fire only a single 
projectile through a rifled bore for each single pull of the trigger.'' 
18 U.S.C. 921(a)(7) (1994). The Act amended the definition of ``rifle'' 
by replacing the words ``the explosive in a fixed metallic cartridge'' 
with ``an explosive.'' See 18 U.S.C. 921(a)(7) (2018).
    Additionally, prior to amendment by the Act, the term ``shotgun'' 
was defined in the GCA to mean ``a weapon designed or redesigned, made 
or remade, and intended to be fired from the shoulder and designed or 
redesigned and made or remade to use the energy of the explosive in a 
fixed shotgun shell to fire through a smooth bore either a number of 
ball shot or a single projectile for each single pull of the trigger.'' 
18 U.S.C. 921(a)(5) (1994). The Act amended the definition of 
``shotgun'' by replacing the words ``the explosive in a fixed shotgun 
shell'' with ``an explosive.'' See 18 U.S.C. 921(a)(5) (2018).
    The provisions of the Act relating to the miscellaneous amendments 
also became effective upon the date of enactment, October 21, 1998.

II. Proposed Rule

    On May 26, 2016, the Department of Justice (``the Department'') 
published in the Federal Register a notice of proposed rulemaking 
(``NPRM'') to codify into regulation certain provisions of the Act. 
Commerce in Firearms and Explosives; Secure Gun Storage, Amended 
Definition of Antique Firearm, and Miscellaneous Amendments, 81 FR 
33448 (May 26, 2016). The rule proposed amending ATF's regulations to 
account for the existing statutory requirement that applicants for 
Federal firearms dealer licenses certify that secure gun storage or 
safety devices will be available at any place where firearms are sold 
under the license to nonlicensed individuals. This certification is 
already included in ATF Form 7/7CR. The NPRM also proposed requiring 
applicants for Federal firearms manufacturer or importer licenses to 
complete the certification if the licensee will have premises where 
firearms are sold to nonlicensees.
    Next, the Department proposed to amend 27 CFR 478.11 by adding a 
definition for the term ``secure gun storage or safety device'' that 
tracks the language in the statute, as well as a new section 27 CFR 
478.104 that specifies the terms of the certification requirement. 
Moreover, the proposed regulation required that the secure gun storage 
or safety device be compatible with the firearms offered for sale by 
the licensee. 81 FR at 33449. Therefore, applicants under the proposed 
rule would be required to certify the availability of compatible secure 
gun storage or safety devices at any place where firearms were sold 
under the license to nonlicensees.
    The NPRM proposed applying the certification requirement to 
applicants for Federal firearms importer or manufacturer licenses if 
the licensee has

[[Page 184]]

premises where firearms are sold to nonlicensees. Federal regulations 
provide that a licensed importer or a licensed manufacturer may engage 
in business on the licensed premises as a dealer in the same type of 
firearms authorized by the license to be imported or manufactured. 27 
CFR 478.41(b). Accordingly, under the proposed rule, an applicant for a 
Federal firearms importer or manufacturer license that engaged in 
business on the licensed premises as a dealer of firearms to 
nonlicensees was required to complete the certification.
    One provision of the Act provides that, ``[n]otwithstanding any 
other provision of law, evidence regarding compliance or noncompliance 
[with the secure gun storage or safety device requirement] shall not be 
admissible as evidence in any proceeding of any court, agency, board, 
or other entity.'' Public Law 105-277, sec. 119, reprinted in 18 U.S.C. 
923 note. In the proposed rule, ATF explained that this section applies 
to civil liability actions against dealers and other similar actions, 
and not to proceedings associated with license denials or revocations 
(or appeals in Federal court from decisions in such proceedings) 
involving noncompliance with the secure gun storage or safety device 
requirement of the GCA. 81 FR at 33449. The proposed rule amended 27 
CFR 478.73 to clarify that a notice of revocation of a Federal firearms 
license may be issued whenever the ATF Director has reason to believe 
that a licensee fails to have secure gun storage or safety devices 
available at any place in which firearms are sold under the license to 
persons who are not licensees (except in any case in which a secure gun 
storage or safety device is temporarily unavailable because of theft, 
casualty loss, consumer sales, backorders from a manufacturer, or any 
other similar reason beyond the control of the licensee). Id. at 33453.
    Finally, the Department proposed to amend 27 CFR 478.11 to reflect 
the definitions of the terms ``antique firearm,'' ``rifle,'' and 
``shotgun'' set forth in the Act. Id.
    Comments on the notice of proposed rulemaking were to be submitted 
to ATF on or before August 24, 2016.

III. Comment Analysis and Department Response

    In response to the NPRM, with respect to an industry that includes 
approximately 59,909 federally licensed firearms dealers (including 
pawnbrokers), 12,673 licensed firearms manufacturers, and 1,054 
licensed firearms importers, ATF received only four comments. This 
small number of responses indicates that a broad majority of the 
firearms industry accepts codification of behavior that has been 
statutorily required for more than 20 years.

A. Comments on Impact on Manufacturers and Importers

1. Comments Received
    One commenter argued that the proposed rule imposes the 
certification requirement on all manufacturers and importers that sell 
firearms to the public, despite the fact that the statute requires only 
that dealers in firearms meet the certification requirement. Further, 
according to the commenter, forcing manufacturers and importers to have 
secure gun storage available and perhaps even to ``use'' such secure 
gun storage could create a burdensome and expensive requirement. 
Requiring firearms, many of which might not even be finished, to be 
stored under lock and key every night would, in the opinion of the 
commenter, be difficult, time consuming, and cost-prohibitive. 
Therefore, according to the commenter, the proposed rule violated 
Federal law by creating new requirements for licensees.
2. Department Response
    The Department disagrees with the comment that ATF does not have 
the statutory authority to require licensed manufacturers and importers 
to certify that secure gun storage or safety devices will be available 
at any place in which firearms are sold to nonlicensees. Under 18 
U.S.C. 923(a), the license application must be in such form and contain 
the information necessary to determine eligibility for licensing as the 
Attorney General may prescribe by regulation. Similarly, under 18 
U.S.C. 926(a), the Attorney General has the authority to promulgate any 
rules that are necessary to implement the provisions of the GCA. 
``Because Sec.  926 authorizes the [Attorney General] to promulgate 
those regulations which are `necessary,' it almost inevitably confers 
some measure of discretion to determine what regulations are in fact 
`necessary.' '' Nat'l Rifle Ass'n v. Brady, 914 F.2d 475, 479 (4th Cir. 
1990).
    Although the language of section 923(d)(1)(G) refers only to 
applications for license as a dealer, section 923(e), as amended by the 
Act, more broadly provides that the Attorney General may, after notice 
and an opportunity for a hearing, ``revoke any license issued under 
this section if the holder of such license . . . fails to have secure 
gun storage or safety devices available at any place in which firearms 
are sold under the license to persons who are not licensees.'' 
(Emphasis added.) Section 923(e) thus applies to all licensees that 
sell firearms to nonlicensees--not just dealer licensees. Hence, 
because licensed manufacturers and importers may sell their firearms 
directly to nonlicensees, see 27 CFR 478.41(b), ATF has the authority 
to revoke the licenses of manufacturers or importers if they fail to 
have secure gun storage or safety devices available for retail 
transactions. Requiring manufacturers and importers to certify that 
secure gun storage or safety devices will be available at any place in 
which firearms are sold to nonlicensees helps ensure that manufacturers 
and importers are aware of the implicit requirement in section 923(e) 
that these licensees must make such storage or devices available. This 
certification has been required of all license applicants except 
collectors on ATF Form 7/7CR (5300.12/5310.16) for years.
    Finally, neither the NPRM nor the final rule requires manufacturers 
or importers to use secure gun storage or safety devices on their 
inventory; rather, they need only make such storage or devices 
available.

B. Comments on Compatibility of Devices

1. Comments Received
    One commenter noted that 18 U.S.C. 923 does not explicitly require 
that secure gun storage or safety devices maintained by Federal 
firearms dealers be compatible or even be used, only that they be 
available; therefore, according to the commenter, the proposed rule 
cannot require it. Further, the commenter noted that ATF has no 
authority to revoke the license of a dealer that does not lock up its 
firearms.
2. Department Response
    The commenter misinterpreted the proposed rule's application. The 
proposed rule did not, as the commenter suggested, require federally 
licensed dealers to use compatible devices on their inventory, nor did 
the rule require them to lock up and store their firearms inventory. 
Rather, the NPRM proposed implementing 18 U.S.C. 923(d)(1)(G) by 
requiring applicants for dealer licenses, or those licensed 
manufacturers and importers that will also deal firearms to nonlicensed 
individuals as permitted in 27 CFR 478.41(b), to certify only that 
compatible secure gun storage or safety devices are available at any 
place where firearms are sold under the license to nonlicensed 
individuals.
    The Department believes the compatibility language in the rule is

[[Page 185]]

consistent with the text of the statute because it clarifies that the 
secure gun storage or safety devices made available must be compatible 
with the firearms offered for sale by the licensee.
    Courts have explained that ``the administration and enforcement of 
a statute call upon the agency charged with its execution to interpret 
it.'' Continental Airlines, Inc. v. Dep't of Transportation, 843 F.2d 
1444, 1449 (D.C. Cir. 1988). When a court is called upon to review an 
agency's construction of a statute it administers, the court looks to 
the framework set forth in Chevron U.S.A., Inc. v. Natural Resources 
Defense Council, Inc., 467 U.S. 837 (1984). The first step of Chevron 
review is to ask ``whether Congress has directly spoken to the precise 
question at issue.'' Id. 842. ``If the intent of Congress is clear, 
that is the end of the matter; for the court, as well as the agency, 
must give effect to the unambiguously expressed intent of Congress. If, 
however, the court determines Congress has not directly addressed the 
precise question at issue . . . the question for the court is whether 
the agency's answer is based on a permissible construction of the 
statute.'' Id. at 842-43 (footnote omitted). Although the Act defines 
``secure gun storage or safety device,'' that definition does not 
specify whether or with which sorts of firearms the secure gun storage 
and safety devices must be compatible. The Department believes that 
this rule comports with the best reading of the statute and permissibly 
clarifies that such storage and devices must be compatible with the 
firearms sold at the licensed premises. This specification in the 
regulation resolves any ambiguity in the statute and fulfills its 
purpose because customers purchasing firearms should be able to leave 
the premises with a secure gun storage or safety device that is 
compatible with the type of firearm they purchased. A contrary rule, 
under which licensees could comply with the statute by making available 
exclusively devices that are incompatible with the firearms they sell, 
would unreasonably thwart Congress's evident purpose in the Act. See 
City of Chicago v. U.S. Dep't of Treasury, Bureau of Alcohol, Tobacco & 
Firearms, 423 F.3d 777, 781 (7th Cir. 2005) (statutes should not be 
read in a way that ``would thwart Congress' intention'').

C. Comments on Noncompliance Evidence in License Denial or Revocation 
Procedures

1. Comments Received
    In the NPRM, ATF referenced a provision in the Act that states that 
``evidence regarding compliance or noncompliance [with the secure gun 
storage or safety device requirement] shall not be admissible as 
evidence in any proceeding of any court, agency, board, or other 
entity.'' See Public Law 105-277, sec. 119. ATF explained that, based 
on basic tenets of statutory construction, it reads the evidentiary 
limitation as applying only ``to civil liability actions against 
dealers and other similar actions, and not to proceedings associated 
with license denials or revocations (or appeals in Federal court from 
decisions in such proceedings) involving noncompliance with the secure 
gun storage or safety device requirement'' of the Act. 81 FR at 33449.
    Three commenters asserted that this provision of the Act prohibits 
the use of a dealer's compliance or noncompliance with the secure gun 
storage or safety device requirement in any administrative proceedings 
to deny or revoke a Federal firearms license. Two commenters also 
argued that ATF's interpretation substitutes its judgment for that of 
Congress, and, by effectively amending legislation, violates the 
``Separation of Powers Doctrine.'' These commenters stated that ATF 
does not have the power to change or ignore statutes. They argued that 
words have meaning, and that ATF cannot construe statutes to permit 
something the plain text prohibits or create an exception for ATF's 
administrative hearings where one does not exist in the law.
2. Department Response
    The Department respectfully disagrees. There are at least two 
canons of statutory interpretation that inform the Department's reading 
of the evidence provision the commenters relied on. The first relevant 
canon provides that, ``[w]henever a power is given by statute, 
everything necessary to make it effectual or requisite to attain the 
end is implied.'' Luis v. United States, 136 S. Ct. 1093, 1097 (2016) 
(Thomas, J., concurring) (quoting 1 J. Kent, Commentaries on American 
Law 464 (13th ed. 1884)). The second relevant canon provides that a 
``court will not merely look to a particular clause in which general 
words may be used, but will take in connection with it the whole 
statute . . . and the objects and policy of the law.'' Stafford v. 
Briggs, 444 U.S. 527, 535 (1980) (quoting Brown v. Duchesne, 19 How. 
183, 194 (1857)). The evidence provision cannot be read in isolation. 
Rather, it must be read within the context of the rest of the statute, 
including the specific grant of authority for the Attorney General to 
revoke the license of a licensee that does not comply with the Act. 
Moreover, the Act specifically provides that none of its amendments 
``shall be construed . . . as creating a cause of action against any 
firearms dealer or any other person for any civil liability.'' 18 
U.S.C. 923 note. That prohibition on civil liability implies that 
Congress expected compliance with the secure gun storage or safety 
device requirement to be enforced not by private individuals in civil 
actions, but by the Attorney General in administrative proceedings, in 
accordance with the specific authority granted to the Attorney General 
to do so in 18 U.S.C. 923(e). The Attorney General could not fulfill 
this role if, as asserted by the commenters, evidence of noncompliance 
could not be used in administrative proceedings related to that 
noncompliance, thus indicating that the evidence provision in the Act 
does not apply to administrative proceedings regarding compliance with 
the secure gun storage or safety device requirement. Cf. United States 
v. Tohono O'Odham Nation, 563 U.S. 307, 315 (2011) (``Courts should not 
render statutes nugatory through construction.'').
    The Department's interpretation of the evidence provision is 
further supported by the legislative history. The secure gun storage 
provisions that were enacted were initially sponsored by Senator Larry 
Craig as part of S.10, the Violent and Repeat Juvenile Offender Act of 
1997, for which a Senate report was produced by the Senate Committee on 
the Judiciary.\2\ The Committee's report stated that ``[t]he penalty 
for willful violation . . . is revocation of the dealer's license, 
after notice and opportunity for hearing is given pursuant to current 
law.'' \3\ Thus, the Committee evidently expected that noncompliance 
with the secure gun storage and safety device provisions would be 
enforced through administrative proceedings, including a hearing. It 
would accordingly be nonsensical to bar the Attorney General from using 
evidence of such noncompliance in the same proceedings. Congress, in 
other words, would not have written the specific amendments giving the 
Attorney General the ability to revoke or deny a license based on 
noncompliance if

[[Page 186]]

evidence of noncompliance could not be considered at the hearing ATF is 
required to conduct under the law. Accordingly--in light of the context 
in which the evidence provision appears, the legislative history 
underlying the secure gun storage or safety device requirement, and the 
authority granted in section 923(e)--the Department's position that the 
evidence provision does not apply to ATF's enforcement hearings or 
actions is the best interpretation of the law, and is certainly a 
permissible interpretation of the provision. See Chevron, 467 U.S. at 
843.
---------------------------------------------------------------------------

    \2\ S. Rep. No. 105-108, at 108 (1997).
    \3\ Id. (emphasis added).
---------------------------------------------------------------------------

    Furthermore, Congress expressly authorized the Attorney General to 
deny or revoke a license if the licensee or applicant fails to have or 
certify that it has secure gun storage or safety devices available at 
any place in which firearms are sold under the license to persons who 
are not licensees (with the same exceptions noted above). 18 U.S.C. 
923(d), (e). To exercise this authority, the Attorney General is 
required to provide notice to an applicant or licensee and, upon 
request of the aggrieved party, is authorized to conduct an 
administrative hearing to make a final determination. 18 U.S.C. 923(e), 
(f); 27 CFR 771.40-44. The agency's final decision is appealable to a 
Federal court. 18 U.S.C. 923(f)(3). ATF \4\ can also institute criminal 
proceedings against a licensee for violations of the GCA or the 
regulations. 18 U.S.C. 923(f)(4). The express statutory grant of 
authority in section 923 to deny or revoke a license based on evidence 
of noncompliance supersedes the general language the commenters relied 
on. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 
645 (2012) (citing HCSC-Laundry v. United States, 450 U.S. 1, 6 (1981) 
(per curiam), for the proposition that the specific governs the 
general, ``particularly when the two [statutes] are interrelated and 
closely positioned, both in fact being parts of [the same statutory 
scheme]''); Busic v. United States, 446 U.S. 398, 406 (1980).
---------------------------------------------------------------------------

    \4\ The Attorney General is responsible for enforcing the GCA, 
as amended. This responsibility includes the authority to promulgate 
regulations necessary to enforce the provisions of the GCA. See 18 
U.S.C. 926(a). The Attorney General has delegated the responsibility 
for administering and enforcing the GCA to the ATF Director, subject 
to the direction of the Attorney General and Deputy Attorney 
General. See 28 CFR 0.130(a)(1)-(2).
---------------------------------------------------------------------------

D. Comments on Definitions of ``Rifle'' and ``Shotgun''

1. Comments Received
    Comments relating to the definitions of ``rifle'' and ``shotgun'' 
stated that, to prevent confusion between a modern rifle or shotgun and 
a muzzleloader or antique firearm, and to preclude future Federal 
``over reach'' to classify muzzle loading arms as rifles, the 
definitions should specifically exclude muzzle loading arms using black 
powder or black powder substitutes. Additionally, one commenter stated 
that ``explosive'' is not the correct word for the propellant in a 
modern firearm and suggested amending the term ``explosive'' in the 
definitions of ``rifle'' and ``shotgun'' to reference smokeless solid 
propellants that deflagrate rather than detonate, thereby clarifying 
that metallic cartridge firearms using smokeless propellants do not 
fall under the definitions of ``rifle'' or ``shotgun'' due to their 
lack of use of an explosive that detonates.
2. Department Response
    The Department respectfully declines to revise the definitions of 
``rifle'' and ``shotgun'' to refer to smokeless solid propellants, 
rather than an ``explosive,'' because doing so would not be consistent 
with the statutory definitions set forth in the Act. The current 
statutory definition for ``antique firearm'' excludes certain muzzle 
loading firearms using black powder or black powder substitutes from 
the definition of ``firearm,'' thus making the inclusion of additional 
language to exclude them unnecessary. This final rule updates the 
existing regulations to reflect the current language of the statute.
    Further, the Department does not agree with the suggested 
clarification of the term ``explosive'' in the definitions of ``rifle'' 
and ``shotgun.'' The use of the phrase ``by action of an explosive'' 
within the definitions of ``rifle'' and ``shotgun'' is appropriate, as 
it is descriptive of a process and not a classification of the 
propellant powder. The provisions of the Act relating to antique 
firearms and definitions of the terms ``rifle'' and ``shotgun'' became 
effective on the day of enactment, October 21, 1998. This final rule 
updates the existing regulations to reflect the current language of the 
statute.

IV. Final Rule

    This final rule implements the amendments to the regulations in 27 
CFR part 478 that were specified in the NPRM published on May 26, 2016 
(81 FR 33448) without change.

V. Statutory and Executive Order Review

A. Executive Orders 12866 and 13563

    Executive Order 12866 (Regulatory Planning and Review) directs 
agencies to assess the costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, distributive impacts, 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of maintaining 
flexibility.
    The Office of Management and Budget (``OMB'') has determined that, 
although this final rule is not economically significant, it is a 
``significant regulatory action'' under section 3(f)(4) of Executive 
Order 12866 because this final rule raises novel legal or policy issues 
arising out of legal mandates. Accordingly, the rule has been reviewed 
by OMB.
    This rule requires that Federal firearms licensees (``FFLs'') make 
available secure gun storage or safety devices to non-FFLs that 
purchase firearms. Furthermore, this rule requires that all FFLs must 
certify that they have secure gun storage or safety devices available 
if they sell firearms to non-FFLs. This section describes the affected 
population, costs, and benefits for this rule. In determining the costs 
and benefits of this rule, ATF has followed OMB guidance for conducting 
regulatory analyses. See OMB, Memorandum to the Heads of Executive 
Agencies and Establishments, Re: Regulatory Analysis, Circular A-4 
(Sept. 17, 2003) (``Circular A-4''). According to that guidance, 
regulations such as this one that largely restate self-enforcing 
statutory requirements should be analyzed against a baseline that pre-
dates the enactment of the relevant statute. Thus, although ATF has 
implemented and enforced the Act in the years since its passage even in 
the absence of the regulation at issue in this rulemaking, the costs 
and benefits of doing so have been attributed to this regulation for 
the purpose of this analysis.
    Table 1 provides the summary of the expected effects that this rule 
will have on the public. For more details regarding this analysis, 
please refer to the standalone regulatory analysis (``RA'') located on 
the docket.

[[Page 187]]



      Table 1--Summary of Affected Population, Costs, and Benefits
------------------------------------------------------------------------
                Category                            Final rule
------------------------------------------------------------------------
Applicability..........................  <bullet> All FFLs.
                                         <bullet> Type 1 FFL--Dealer in
                                          firearms other than
                                          destructive devices.
                                         <bullet> Type 2 FFL--Pawnbroker
                                          in firearms other than
                                          destructive devices.
Affected Population....................  <bullet> 130,525 FFLs.
                                         <bullet> 52,795 Type 1 FFLs.
                                         <bullet> 7,114 Type 2 FFLs.
Total Costs to Industry, Public, and     $853,187 at 7% annualized.
 Government (7% Discount Rate).
Savings (7% Discount Rate).............  N/A.
Benefits (7% Discount Rate)............  N/A.
Benefits non-monetized.................  <bullet> Inhibits unauthorized
                                          access to privately owned
                                          firearms by individuals such
                                          as children, who might suffer
                                          accidental injuries.
                                         <bullet> Inhibits access to
                                          privately owned firearms by
                                          criminals, who might use them
                                          for illicit activities.
------------------------------------------------------------------------

1. Need for Federal Regulation
    Agencies take regulatory action for various reasons. One reason is 
to carry out Congress's policy decisions, as expressed in statutes. 
Here, this rulemaking aims to comply with the Omnibus Consolidated and 
Emergency Supplemental Appropriations Act of 1999 relating to secure 
gun storage. Another reason underpinning regulatory action is the 
failure of the market to compensate for negative externalities caused 
by commercial activity. A negative externality can be the byproduct of 
a transaction between two parties that is not accounted for in the 
transaction. This final rule addresses a negative externality. The 
negative externality of the sale of firearms is that the firearms might 
not be stored properly and could be accessed by children who could 
cause accidents with the firearms or accessed by criminals who would 
use them for illicit activities. This rule provides nonlicensed firearm 
owners with the option to have devices that enable them to store their 
firearms so as to inhibit children or criminals from accessing their 
firearms.
2. Affected Population
    This rulemaking affects two populations. The first population is 
the number of FFLs required to certify on Form 7/7CR that secure gun 
storage or safety devices will be available at any place in which 
firearms are sold under the license to persons who are not licensees. 
The second population is the number of FFLs that need to acquire secure 
gun storage or safety devices to make available at their place of 
business.
    Entities directly affected by the requirement to certify the 
availability of secure gun storage or safety devices are all FFLs. 
Although this rule primarily affects FFLs that sell firearms to 
nonlicensed persons, this rule affects all FFLs in that all FFL 
applicants must indicate on the Form 7/7CR application whether the 
applicants have gun storage or safety devices available for 
nonlicensees or whether this requirement is not applicable because they 
are seeking a Type 3 license for collectors.
    Because the Act was enacted shortly before 1999, and because ATF 
has required certification since 1999, ATF estimated the affected 
population to be all FFLs from 1999 to present. However, FFLs have to 
certify the availability of secure gun storage or safety devices only 
when they apply as new FFLs or every three years when they renew their 
Federal firearms license. Tables 2 and 3 show the numbers of new 
applications and renewals by FFL type and year. For more information on 
the methodology used to determine the numbers of new FFLs by Type, 
please refer to the standalone RA.

                               Table 2--New and Renewal Applications of Type 1, 2, 3, 6, and 7 Federal Firearms Licensees
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                     06--Manufacturer
                           Year                              01--Dealer in    02--Pawnbroker in   03--Collector of  of ammunition for   07--Manufacturer
                                                                firearms           firearms      curios and relics       firearms         of firearms
--------------------------------------------------------------------------------------------------------------------------------------------------------
1999.....................................................             24,977              3,516             19,919                787                574
2000.....................................................             24,829              3,583             19,919                777                652
2001.....................................................             24,788              3,572             19,919                757                715
2002.....................................................             24,660              3,615             19,919                727                800
2003.....................................................             24,553              3,639             19,919                723                874
2004.....................................................             24,547              3,579             19,919                711                938
2005.....................................................             24,494              3,553             19,919                683              1,034
2006.....................................................             24,406              3,503             19,919                679              1,143
2007.....................................................             24,266              3,434             19,919                690              1,315
2008.....................................................             24,148              3,345             19,919                708              1,482
2009.....................................................             23,763              3,337             19,919                759              1,782
2010.....................................................             23,284              3,368             19,919                859              2,097
2011.....................................................             20,956              3,046             22,338                816              2,343
2012.....................................................             21,259              3,105             21,622                855              3,104
2013.....................................................             22,274              3,221             13,134                966              3,748
2014.....................................................             22,049              3,235              6,767              1,033              3,966
2015.....................................................             20,876              3,029             18,671                967              3,901
2016.....................................................             22,104              3,146             19,322                957              4,317
2017.....................................................             21,896              3,043             18,876                873              4,622
2018.....................................................             20,479              2,799             17,643                776              4,603
2019.....................................................             20,034              2,726             17,478                709              4,848

[[Page 188]]

 
2020.....................................................             22,710              3,060             20,150                777              6,076
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Note: Numbers may not add for Type 1 FFLs due to adjustments to ensure the numbers of applications in Tables 2 and 3 match total FFLs in this table.


                                Table 3--New and Renewal Applications of Type 8, 9, 10, and 11 Federal Firearms Licensees
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                09--Dealer in     10--Manufacturer   11--Importer of       Total new
                           Year                             08--Importer of      destructive       of destructive      destructive      applications and
                                                                firearms           devices            devices            devices            renewals
--------------------------------------------------------------------------------------------------------------------------------------------------------
1999.....................................................                265                  4                 44                 26             50,112
2000.....................................................                275                  4                 46                 26             50,111
2001.....................................................                283                  5                 45                 28             50,112
2002.....................................................                303                  7                 52                 31             50,114
2003.....................................................                307                  7                 56                 35             50,113
2004.....................................................                315                  7                 60                 37             50,113
2005.....................................................                317                  7                 66                 40             50,113
2006.....................................................                327                  8                 81                 47             50,113
2007.....................................................                338                 11                 86                 52             50,111
2008.....................................................                344                 15                 94                 57             50,112
2009.....................................................                365                 17                107                 64             50,113
2010.....................................................                375                 20                119                 71             50,112
2011.....................................................                349                 18                112                 69             50,047
2012.....................................................                355                 22                109                 71             50,502
2013.....................................................                411                 24                113                 76             43,967
2014.....................................................                451                 26                114                 80             37,721
2015.....................................................                428                 25                117                 82             48,096
2016.....................................................                429                 27                130                 86             50,518
2017.....................................................                430                 30                138                 90             49,998
2018.....................................................                413                 36                138                 88             46,975
2019.....................................................                413                 48                146                 94             46,496
2020.....................................................                489                 55                182                116             53,615
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Note: Numbers may not add for Type 1 FFLs due to adjustments to ensure the number of applications in Tables 2 and 3 match total FFLs in this table.

    The second population directly affected by this rule primarily 
consists of Type 1 and 2 FFLs that sell firearms to the public. These 
FFLs must acquire secure gun storage or safety devices to be made 
available to firearm purchasers in their place of business. Based on 
the year the Act was enacted, ATF assumed that all Type 1 and 2 FFLs in 
1999 had to acquire secure gun storage or safety devices to make 
available to any potential nonlicensee customers. From 2000 onwards, 
only new FFLs would need to acquire some form of gun storage or safety 
devices to make available to their customers. Although this rule 
affects all FFLs that sell firearms to nonlicensed individuals, no cost 
was attributed to Type 9, 10, and 11 licensees because they primarily 
deal, manufacture, and import destructive devices used by domestic and 
foreign governments rather than selling firearms at the retail level to 
nonlicensed individuals. Similarly, although Type 7 and 8 licensees are 
manufacturers and importers that may sell firearms to nonlicensed 
persons, most of these licensees, even prior to enactment of the Act, 
have voluntarily included secure gun storage or safety devices for 
their firearms, and hence would not have needed to separately acquire 
such storage or devices to make them available to nonlicensees.\5\ Of 
those Type 7 and 8 FFLs that do not provide secure gun storage or 
safety devices, ATF assumed these licensees primarily sell firearms 
wholesale to Type 1 FFLs and do not sell to nonlicensed persons.
---------------------------------------------------------------------------

    \5\ See Hearing before the Subcomm. on the Constitution of the 
S. Comm. on the Judiciary, 117th Cong. (2021), 2021 WL 2138600 
(discussing the success of Project ChildSafe, through which 
``manufacturers have voluntarily included a locking device in every 
box sold since the late 1980's'' (testimony of Joseph Bartozzi, 
President and CEO, National Shooting Sports Foundation)); S. Rep. 
No. 105-108, at 201-02 (``The arguments raised against safety locks 
ring hollow, especially in light of the recent announcement by 
eight[] of the Nation's largest handgun manufacturers that they will 
voluntarily comply with the heart of Senator Kohl's amendment by 
packaging a child safety lock with every handgun they sell.'').
---------------------------------------------------------------------------

    Based on congressional testimony and subject matter experts' 
(``SMEs'') experience, most firearm manufacturers now include locks 
with new purchases of firearms, and, as noted above, have been doing so 
since before the enactment of the Act.\6\ ATF, however, is not certain 
of the exact date when manufacturers and importers began voluntarily 
providing locks and, in the interest of not underestimating the costs 
attributable to this rule, ATF assumed that all Type 1 FFLs in 1999 
would need to acquire secure gun storage or safety devices to make 
available to their customers. ATF then estimated that, as manufacturers 
and importers continued to provide locks with their firearms, and as 
this practice became more common, a decreasing number of FFLs needed to 
acquire secure gun storage or safety devices each year until year 2003. 
After 2003, ATF maintained a constant rate of 20 percent of FFLs that 
do not receive safety devices with the firearms they sell to account 
for any manufacturers and importers that, even today, do not provide 
safety devices with their firearms. In addition, Type 2 FFLs are 
pawnshops that acquire previously owned firearms. ATF does not know

[[Page 189]]

whether the firearms acquired by Type 2 FFLs have secure locks or not. 
Therefore, ATF assumed that all new Type 2 FFLs need to acquire secure 
gun storage or safety devices to satisfy the requirements of the Act.
---------------------------------------------------------------------------

    \6\ See supra note 5.
---------------------------------------------------------------------------

    Because Type 2 FFLs primarily deal with secondhand firearms and not 
new purchases, ATF assumed that, in 1999, all Type 2 FFLs acquired 
secure gun storage or safety devices and, from 2000 onward, only new 
Type 2 FFLs needed to acquire a means of securing firearms. Therefore, 
ATF assumed that pawnbrokers from 2000 to 2020 consisted only of new 
Type 2 FFLs.
    Table 4 provides the estimated number of Type 1 and 2 FFLs that 
needed to acquire secure gun storage or safety devices and make them 
available at their place of business for potential nonlicensed 
customers. For more detailed information on obtaining the population of 
FFLs needing to acquire secure gun storage or safety devices to make 
available, please refer to the standalone RA.

             Table 4--FFL Types 1 and 2 That Needed To Purchase Secure Gun Storage or Safety Devices
----------------------------------------------------------------------------------------------------------------
                                                         Rate of FFLs that
                                                          do not receive                           Type 2 FFL
                Year                   New type 1 FFL       locks from          Type 1 FFL          needing
                                                         manufacturers (%)
----------------------------------------------------------------------------------------------------------------
1999...............................             71,290                 100             71,290             10,035
2000...............................              8,677                  80              6,942              1,252
2001...............................              8,663                  60              5,198              1,248
2002...............................              8,618                  40              3,447              1,263
2003...............................              8,581                  20              1,716              1,272
2004...............................              8,579                  20              1,716              1,251
2005...............................              8,560                  20              1,712              1,242
2006...............................              8,529                  20              1,706              1,224
2007...............................              8,481                  20              1,696              1,200
2008...............................              8,439                  20              1,688              1,169
2009...............................              8,305                  20              1,661              1,166
2010...............................              8,137                  20              1,627              1,177
2011...............................              7,768                  20              1,554                854
2012...............................              9,034                  20              1,807                971
2013...............................             10,177                  20              2,035              1,063
2014...............................              7,874                  20              1,575                823
2015...............................              7,088                  20              1,418                730
2016...............................              7,552                  20              1,510                762
2017...............................              6,599                  20              1,320                645
2018...............................              6,314                  20              1,263                603
2019...............................              5,667                  20              1,133                532
2020...............................              8,442                  20              1,688                772
----------------------------------------------------------------------------------------------------------------

3. Costs
    This analysis considers the rule's direct (or industry) costs, 
indirect costs, and government costs. Industry costs are the costs to 
FFLs that need to certify the availability of secure gun storage or 
safety devices and the costs to FFLs that need to acquire secure gun 
storage or safety devices to make available to the public. Indirect 
costs are those costs associated with organizations and manufacturers 
providing gun locks or safety devices. Government costs are enforcement 
costs to ensure that the affected FFLs have been and are continuing to 
comply with the statute.
    In determining direct, industry costs, ATF used the average wage 
rate associated with certain job titles listed on Form 7/7CR by FFL 
type. ATF used a loaded wage rate of 1.42 to include fringe benefits 
such as insurance as part of the overall compensation.\7\ Because FFLs 
are segmented by industry type, ATF used a sample from each industry 
type to determine an average wage rate by each FFL type. For FFLs 
completing Form 7CR, ATF assigned a leisure wage rate of $16.52 because 
FFLs that complete Form 7CR are Type 3 FFLs--i.e., collectors who do 
not apply for a license as part of an occupation.\8\ Although Type 3 
FFL collectors are not required to make available secure gun storage or 
safety devices, they are still required to answer the question about 
availability on Form 7CR by marking ``N/A.'' Therefore, costs for that 
action were counted as an industry cost of this rule. For more 
information on the wages used for each sample, please refer the 
standalone RA. Table 5 provides the average loaded wage rate by FFL 
type.
---------------------------------------------------------------------------

    \7\ Bureau of Labor Statistics, Series Report, https://data.bls.gov/cgi-bin/srgate. Data was generated for 2020 using 
series CMU2010000000000D, CMU2010000000000P and CMU2020000000000D, 
CMU2020000000000P. Average total compensation was $35.87. Average 
cost per hour worked was $25.18. Loaded wage rate 1.42 = $35.87/
$25.18.
    \8\ As explained more fully in the accompanying RA, the leisure 
wage rate was estimated using the calculation described in the 
Department of Transportation's guidance on the valuation of travel 
time. See Dep't of Transportation, Revised Departmental Guidance on 
Valuation of Travel Time in Economic Analysis 19 (Sept. 27, 2016), 
https://www.transportation.gov/sites/dot.gov/files/docs/2016%20Revised%20Value%20of%20Travel%20Time%20Guidance.pdf.

              Table 5--Average Loaded Wage Rate by FFL Type
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Types 1 and 2...........................................          $82.06
Type 3..................................................           16.52
Type 6..................................................           58.91
Type 7..................................................           62.93
Type 8..................................................           76.13
Type 9..................................................          103.44
Type 10.................................................           87.86
Type 11.................................................          109.30
------------------------------------------------------------------------


[[Page 190]]

    The time needed for an FFL to certify on Form 7/7CR that it has 
secure gun storage or safety devices (or to mark ``N/A'') was estimated 
at 0.1 minute (0.0017 hours). ATF started with the average loaded wage 
rate by type of license, multiplied the wage rate by the estimated 
number of new and renewal FFLs per type from Tables 2 and 3, and 
multiplied that result by the hour burden to determine the annual cost 
to certify. Tables 6 and 7 provide the annual costs to certify by FFL 
type from 1999 to the present.

                                               Table 6--Cost To Certify by FFL Types 1, 2, 3, 6, 7, and 8
--------------------------------------------------------------------------------------------------------------------------------------------------------
                           Year                              Types 1 and 2          Type 3             Type 6             Type 7             Type 8
--------------------------------------------------------------------------------------------------------------------------------------------------------
1999.....................................................             $3,897               $548                $77                $60                $34
2000.....................................................              3,886                548                 76                 68                 35
2001.....................................................              3,879                548                 74                 75                 36
2002.....................................................              3,867                548                 71                 84                 38
2003.....................................................              3,856                548                 71                 92                 39
2004.....................................................              3,847                548                 70                 98                 40
2005.....................................................              3,836                548                 67                108                 40
2006.....................................................              3,817                548                 67                120                 41
2007.....................................................              3,788                548                 68                138                 43
2008.....................................................              3,760                548                 70                155                 44
2009.....................................................              3,706                548                 75                187                 46
2010.....................................................              3,645                548                 84                220                 48
2011.....................................................              3,283                615                 80                246                 44
2012.....................................................              3,332                595                 84                326                 45
2013.....................................................              3,487                362                 95                393                 52
2014.....................................................              3,458                186                101                416                 57
2015.....................................................              3,269                514                 95                409                 54
2016.....................................................              3,453                532                 94                453                 54
2017.....................................................              3,411                520                 86                485                 55
2018.....................................................              3,184                486                 76                483                 52
2019.....................................................              3,113                481                 70                508                 52
2020.....................................................              3,524                555                 76                637                 62
--------------------------------------------------------------------------------------------------------------------------------------------------------


                               Table 7--Cost To Certify by FFL Types 9, 10, and 11
----------------------------------------------------------------------------------------------------------------
                Year                        Type 9            Type 10            Type 11             Total
----------------------------------------------------------------------------------------------------------------
1999................................                 $1                 $6                 $5             $4,564
2000................................                  1                  7                  5              4,562
2001................................                  1                  7                  5              4,561
2002................................                  1                  8                  6              4,560
2003................................                  1                  8                  6              4,558
2004................................                  1                  9                  7              4,556
2005................................                  1                 10                  7              4,554
2006................................                  1                 12                  9              4,551
2007................................                  2                 13                  9              4,545
2008................................                  3                 14                 10              4,540
2009................................                  3                 16                 12              4,529
2010................................                  3                 17                 13              4,515
2011................................                  3                 16                 13              4,300
2012................................                  4                 16                 13              4,415
2013................................                  4                 17                 14              4,423
2014................................                  4                 17                 15              4,255
2015................................                  4                 17                 15              4,378
2016................................                  5                 19                 16              4,626
2017................................                  5                 20                 16              4,597
2018................................                  6                 20                 16              4,323
2019................................                  8                 21                 17              4,271
2020................................                  9                 27                 21              4,912
----------------------------------------------------------------------------------------------------------------

    For purposes of this analysis, ATF estimated that Type 1 and 2 FFLs 
that must comply with the Act would have purchased at least two safety 
devices at an average price of $7.39 per safety device and tape ($2.36) 
to notate the owner of the gun. Combined, the average price to make 
available secure gun storage or safety devices for customers is $17.14 
per store. For sources of costs to make available secure gun storage or 
safety devices, refer to section 3.1.2 of the standalone RA.
    For an annual direct, industry cost of certifying and making 
available secure gun storage or safety devices, refer to Table 8. That 
table provides the annual cost of certifying and making available 
secure gun storage or safety devices from 1999 to 2020.

[[Page 191]]



                                   Table 8--Year by Year Direct, Industry Cost
----------------------------------------------------------------------------------------------------------------
                                                                                       Discounted cost
                          Year                              Undiscounted   -------------------------------------
                                                           industry costs           7%                 3%
----------------------------------------------------------------------------------------------------------------
1999...................................................         $1,398,539         $6,196,088         $2,679,745
2000...................................................            147,582            611,072            274,546
2001...................................................            117,089            453,096            211,475
2002...................................................             86,808            313,942            152,218
2003...................................................             56,753            191,821             96,618
2004...................................................             56,368            178,057             93,168
2005...................................................             56,157            165,784             90,115
2006...................................................             55,727            153,753             86,821
2007...................................................             55,132            142,161             83,393
2008...................................................             54,445            131,204             79,954
2009...................................................             53,922            121,442             76,879
2010...................................................             53,517            112,645             74,080
2011...................................................             45,572             89,646             61,244
2012...................................................             52,034             95,663             67,893
2013...................................................             57,778             99,274             73,192
2014...................................................             45,742             73,451             56,256
2015...................................................             41,188             61,813             49,181
2016...................................................             43,561             61,097             50,499
2017...................................................             38,282             50,179             43,086
2018...................................................             36,298             44,466             39,664
2019...................................................             32,817             37,572             34,815
2020...................................................             47,075             50,370             48,487
                                                        --------------------------------------------------------
    Total..............................................          2,632,384          9,434,596          4,523,330
----------------------------------------------------------------------------------------------------------------
    Annualized.........................................  .................            852,942            283,827
----------------------------------------------------------------------------------------------------------------

    In addition to direct, industry costs for Type 1 and 2 FFLs to make 
available secure gun storage or safety devices, the government incurred 
costs to enforce secure gun storage and safety device requirements on 
FFLs. Based on ATF's database, ATF found two violations in 2019 and six 
violations in 2020, making the average number of violations four. Based 
on input from SMEs, ATF determined that Industry Operations 
Investigators (``IOI'') undertaking inspections related to the secure 
gun storage and safety device requirement range from a GS-9 to GS-13, 
making the average IOI a GS-10, step 5. The hourly wage rate for a GS-
10, step 5 is $27.56.\9\ In order to account for fringe benefits, ATF 
attributed a load rate of 1.41, making the loaded, hourly wage rate for 
an IOI $38.86.\10\ \11\ The SMEs estimated that it would take an 
average of 20 minutes (0.33 hours) to have a conversation with the FFL 
in question and compile a report or warning regarding the violation, 
making the government cost $26 in 2019 and $78 in 2020. Because ATF 
does not have any information regarding inspections for previous years, 
ATF used the average of four violations per year as the government cost 
for enforcement between the years 1999 and 2018. The average cost of 
enforcement was estimated to be $52.
---------------------------------------------------------------------------

    \9\ Office of Personnel Management, SALARY TABLE 2021-GS (Jan. 
2021), https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2021/GS_h.pdf.
    \10\ Federal benefits account for 41 percent of total 
compensation. Congressional Budget Office, Comparing the 
Compensation of Federal and Private-Sector Employees, 2011 to 2015, 
at 14 (Apr. 2017), https://www.cbo.gov/system/files/115th-congress-2017-2018/reports/52637-federalprivatepay.pdf.
    \11\ $38.86 loaded wage rate = $27.56 hourly wage rate * 1.41 
load rate.
---------------------------------------------------------------------------

    ATF accounts for indirect costs of this rule although they are not 
considered part of the total cost of the rule. Other organizations, 
such as Project ChildSafe, provide gun locks free to the public, which 
ends up being a savings for the populations affected by this rule. 
Because these costs are voluntarily incurred, they are considered 
indirect costs. Based on information provided by Project ChildSafe, 
which primarily obtains its funding through other sources, this 
organization has provided approximately 38 million gun locks to the 
public and provides approximately 1.8 million gun lock kits 
annually.\12\ Furthermore, Project ChildSafe estimates that 
manufacturers have included approximately 70 million locks with a 
purchase of a firearm, which they estimate is valued at $140 
million.\13\ These are indirect costs that ATF does not consider as 
part of the total costs of this final rule.
---------------------------------------------------------------------------

    \12\ Project ChildSafe, Project ChildSafe by the Numbers, 
https://www.projectchildsafe.org/sites/default/files/NSSF_PCS_Infographic_PCSByTheNumbers_Jan2019_0.pdf (last accessed 
Dec. 17, 2021).
    \13\ Id.
---------------------------------------------------------------------------

    Other indirect costs include firearm manufacturers who voluntarily 
include safety devices with each purchase of a new firearm. While 
manufacturers are not required to provide gun locks with their firearms 
due to this rule, it is possible that manufacturers have incorporated 
the cost of these gun locks into the final purchasing price of the 
firearm and is therefore already accounted for. It is for these reasons 
that ATF does not consider these indirect costs as costs attributed to 
this rule.
    ATF accounted for the direct, industry costs of this rule along 
with the government enforcement costs attributed to this rule. Table 9 
provides the total costs for this rule.

[[Page 192]]



                        Table 9--Total Direct, Industry and Government Costs of This Rule
----------------------------------------------------------------------------------------------------------------
                                                                                       Discounted cost
                          Year                              Undiscounted   -------------------------------------
                                                            total costs             7%                 3%
----------------------------------------------------------------------------------------------------------------
1999...................................................         $1,398,590         $6,196,318         $2,679,844
2000...................................................            147,634            611,287            274,642
2001...................................................            117,140            453,296            211,569
2002...................................................             86,859            314,130            152,309
2003...................................................             56,805            191,996             96,706
2004...................................................             56,420            178,221             93,254
2005...................................................             56,209            165,937             90,198
2006...................................................             55,779            153,896             86,902
2007...................................................             55,184            142,294             83,471
2008...................................................             54,497            131,329             80,030
2009...................................................             53,973            121,558             76,953
2010...................................................             53,569            112,754             74,152
2011...................................................             45,623             89,748             61,314
2012...................................................             52,086             95,758             67,960
2013...................................................             57,830             99,363             73,257
2014...................................................             45,793             73,534             56,320
2015...................................................             41,240             61,890             49,243
2016...................................................             43,613             61,170             50,559
2017...................................................             38,333             50,247             43,145
2018...................................................             36,350             44,530             39,720
2019...................................................             32,843             37,602             34,843
2020...................................................             47,153             50,454             48,567
                                                        --------------------------------------------------------
    Total..............................................          2,633,524          9,437,311          4,524,959
----------------------------------------------------------------------------------------------------------------
    Annualized.........................................  .................            853,187            283,929
----------------------------------------------------------------------------------------------------------------

    Overall, ATF estimated that, in accordance with the standards for 
regulatory analysis described in OMB Circular A-4, the total cost 
attributable to this rule from 1999 to 2020 was $2.6 million 
undiscounted, or annualized at $853,187 and $283,929 at 7 percent and 3 
percent, respectively.
4. Benefits
    The benefit of this rule is making available secure gun storage or 
safety devices for owners of firearms who otherwise do not have such 
storage or safety devices available to them. Making secure gun storage 
or safety devices available inhibits unauthorized access to privately 
owned firearms for individuals such as children, who might accidently 
discharge them, and inhibits access by criminals, who might use them 
for illicit activities.

B. Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the Federal Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132 (Federalism), the Attorney General has determined 
that this rule does not have sufficient federalism implications to 
warrant the preparation of a federalism summary impact statement.

C. Executive Order 12988

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988 (Civil Justice Reform).

D. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 601-12, the Attorney 
General certifies that this final rule will not have a significant 
economic impact on a substantial number of small entities. The 
Department has considered whether this final rule would have a 
significant economic impact on a substantial number of small entities. 
The term ``small entities'' comprises small businesses, not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations of fewer than 50,000.
    ATF has determined that, in order for the costs associated with 
this rule to impact a small entity's revenue by even one percent, the 
entity would need to make $1,728 or less in annual revenue. For the 
costs to have a 10 percent effect on revenue, a small entity would need 
to make $173 or less in revenue. ATF has determined that it is unlikely 
that a small entity would make such minimal amounts in revenue and 
continue to operate. Therefore, the Attorney General certifies under 5 
U.S.C. 605(b) that this final rule would not have a significant 
economic impact on a substantial number of small entities.

E. Unfunded Mandates Reform Act of 1995

    This rule will not result in the aggregate expenditure by State, 
local, and Tribal governments, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

F. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (``PRA''), 44 U.S.C. 
3501-21, agencies are required to submit for OMB review and approval 
any reporting requirements inherent in a rule. The collection of 
information contained in this final rule is a collection of information 
that has been reviewed and approved by OMB in accordance with the 
requirements of the PRA, and it has been assigned an OMB Control 
Number.
    Title: Application for Federal Firearms License--ATF Form 7 
(5310.12)/7CR (5310.16).
    OMB Control Number: 1140-0018.
    Summary of the Collection of Information: This collection of 
information is used by the public when applying for a Federal firearms 
license

[[Page 193]]

(``FFL''); this form is used to apply for all FFL types.
    Need for Information: The information requested on the form is used 
to determine the eligibility of the applicant to obtain an FFL, and the 
identity and eligibility of Responsible Persons.
    Proposed Use of Information: The information contained will be used 
to determine the applicant's eligibility to receive a license.
    Description of the Respondents: All Federal firearms licensees.
    Number of Respondents: 47,088.
    Frequency of Response: Once every 3 years.
    Burden of Response: For this rule, 0.0017 hours. Total 1 hour.
    Estimate of Total Annual Burden: For this rule, 80 hours. Total 
burden 47,088 hours.

G. Congressional Review Act

    Pursuant to the Congressional Review Act, 5 U.S.C. 801-08, OMB's 
Office of Information and Regulatory Affairs designated this rule as 
not a ``major rule,'' as defined by 5 U.S.C. 804(2). This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or a significant adverse effect on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.

Disclosure

    Copies of this rule and the comments received in response to the 
proposed rule will be available for public inspection through the 
Federal eRulemaking portal, www.regulations.gov (search for RIN 1140-
AA10), or by appointment during normal business hours at the ATF 
Reading Room, Room 1E-062, 99 New York Avenue NE, Washington, DC 20226; 
telephone: (202) 648-8740.

List of Subjects in 27 CFR Part 478

    Administrative practice and procedure, Arms and munitions, Exports, 
Freight, Imports, Intergovernmental relations, Law enforcement 
officers, Military personnel, Penalties, Reporting and recordkeeping 
requirements, Research, Seizures and forfeitures, Transportation.

Authority and Issuance

    Accordingly, for the reasons discussed in the preamble, 27 CFR part 
478 is amended as follows:

PART 478--COMMERCE IN FIREARMS AND AMMUNITION

0
1. The authority citation for part 478 is revised to read as follows:

    Authority:  5 U.S.C. 552(a); 18 U.S.C. 847, 921-931; 44 U.S.C. 
3504(h).

0
2. Amend Sec.  478.11 as follows:
0
a. Revise the definition of ``Antique firearm'';
0
b. Remove the words ``the explosive in a fixed metallic cartridge'' in 
the definition of ``Rifle'' and add in their place ``an explosive'';
0
c, Add a definition for ``Secure gun storage or safety device'' in 
alphabetical order; and
0
d. Remove the words ``the explosive in a fixed shotgun shell'' in the 
definition of ``Shotgun'' and add in their place ``an explosive''.
    The revision and addition read as follows:


Sec.  478.11  Meaning of terms.

* * * * *
    Antique firearm. (1) Any firearm (including any firearm with a 
matchlock, flintlock, percussion cap, or similar type of ignition 
system) manufactured in or before 1898;
    (2) Any replica of any firearm described in paragraph (a) of this 
definition if such replica:
    (i) Is not designed or redesigned for using rimfire or conventional 
centerfire fixed ammunition; or
    (ii) Uses rimfire or conventional centerfire fixed ammunition that 
is no longer manufactured in the United States and that is not readily 
available in the ordinary channels of commercial trade; or
    (3) Any muzzle loading rifle, muzzle loading shotgun, or muzzle 
loading pistol that is designed to use black powder, or a black powder 
substitute, and that cannot use fixed ammunition. For purposes of this 
paragraph (3), the term ``antique firearm'' does not include any weapon 
that incorporates a firearm frame or receiver, any firearm that is 
converted into a muzzle loading weapon, or any muzzle loading weapon 
that can be readily converted to fire fixed ammunition by replacing the 
barrel, bolt, breechblock, or any combination thereof.
* * * * *
    Secure gun storage or safety device. (1) A device that, when 
installed on a firearm, is designed to prevent the firearm from being 
operated without first deactivating the device;
    (2) A device incorporated into the design of the firearm that is 
designed to prevent the operation of the firearm by anyone not having 
access to the device; or
    (3) A safe, gun safe, gun case, lock box, or other device that is 
designed to be or can be used to store a firearm and that is designed 
to be unlocked only by means of a key, a combination, or other similar 
means.
* * * * *

0
3. Amend Sec.  478.73 by adding a sentence after the first sentence in 
paragraph (a) to read as follows:


Sec.  478.73  Notice of revocation, suspension, or imposition of civil 
fine.

    (a) * * * In addition, a notice of revocation of the license, on 
ATF Form 4500, may be issued whenever the Director has reason to 
believe that a licensee fails to have secure gun storage or safety 
devices available at any place in which firearms are sold under the 
license to persons who are not licensees (except in any case in which a 
secure gun storage or safety device is temporarily unavailable because 
of theft, casualty loss, consumer sales, backorders from a 
manufacturer, or any other similar reason beyond the control of the 
licensee). * * *
* * * * *

0
4. Add Sec.  478.104 to subpart F to read as follows:


Sec.  478.104  Secure gun storage or safety device.

    (a) Any person who applies to be a licensed firearms dealer must 
certify on ATF Form 7 (5310.12), Application for Federal Firearms 
License, that compatible secure gun storage or safety devices will be 
available at any place where firearms are sold under the license to 
nonlicensed individuals (subject to the exception that in any case in 
which a secure gun storage or safety device is temporarily unavailable 
because of theft, casualty, loss, consumer sales, backorders from a 
manufacturer, or any other similar reason beyond the control of the 
licensee, the dealer shall not be considered in violation of the 
requirement to make available such a device).
    (b) Any person who applies to be a licensed firearms importer or a 
licensed manufacturer and will be engaged in business on the licensed 
premises as a dealer in the same type of firearms authorized by the 
license to be imported or manufactured must make the certification 
required under paragraph (a) of this section.
    (c) Each licensee described in this section must have compatible 
secure gun storage or safety devices available at any place in which 
firearms are sold under the license to persons who are not licensees. 
However, such licensee shall

[[Page 194]]

not be considered to be in violation of this requirement if a secure 
gun storage or safety device is temporarily unavailable because of 
theft, casualty loss, consumer sales, backorders from a manufacturer, 
or any other similar reason beyond the control of the licensee.

    Dated: December 23, 2021.
Merrick B. Garland,
Attorney General.
[FR Doc. 2021-28398 Filed 1-3-22; 8:45 am]
BILLING CODE 4410-FY-P