10782 Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations

DEPARTMENT OF THE TREASURY

Bureau of Alcohol, Tobacco and

Firearms

27 CFR Part 178

[T.D. ATF–361; Ref: T.D. ATF–354 and

Notice No. 789]

RIN: 1512–AB23

Implementation of Public Law 103–159,

Including the Brady Handgun Violence

Prevention Act (93F–057P)

AGENCY: Bureau of Alcohol, Tobacco

and Firearms (ATF), Treasury.

ACTION: Final rule; Treasury decision.

SUMMARY: This final rule implements

the provisions of Public Law 103–159,

including the Brady Handgun Violence

Prevention Act. These regulations

implement the law by imposing a

waiting period of 5 days before a

licensed firearms importer, licensed

manufacturer, or licensed dealer may

transfer a handgun (other than the

return of a handgun to the person from

whom it was received) to a nonlicensed

individual. Regulations are also

prescribed with regard to reporting

requirements for multiple handgun

sales, labeling of packages containing a

firearm, theft of firearms from firearms

licensees, and increased license fees for

dealers in firearms.

Unless otherwise indicated, the

temporary regulations published in the

Federal Register on February 14, 1994

(T.D. ATF–354), are made permanent

upon the effective date of this final rule.

EFFECTIVE DATE: March 29, 1995.

FOR FURTHER INFORMATION CONTACT:

James P. Ficaretta, Regulations Branch,

Bureau of Alcohol, Tobacco and

Firearms, 650 Massachusetts Avenue,

NW., Washington, DC 20226 (202–927–

8230).

SUPPLEMENTARY INFORMATION:

Legislative Background

On November 30, 1993, Public Law

103–159 (107 Stat. 1536) was enacted,

amending the Gun Control Act of 1968

(GCA), as amended (18 U.S.C. Chapter

44). Title I of Pub. L. 103–159, the

‘‘Brady Handgun Violence Prevention

Act’’ (hereinafter, ‘‘Brady’’ or ‘‘Brady

law’’), provides for a national waiting

period of 5 days before a licensed

importer, licensed manufacturer, or

licensed dealer may transfer a handgun

to a nonlicensed individual (interim

provision), and for the establishment of

a permanent national instant criminal

background check system to be queried

by firearms licensees before transferring

any firearm to nonlicensed individuals.

The law requires that the permanent

system be established not later than

November 30, 1998. Violations of either

the interim or permanent provision are

punishable by a fine and/or

imprisonment for not more than 1 year.

Titles II and III of Pub. L. 103–159

relate to reporting requirements for

multiple handgun sales, labeling of

packages containing a firearm, thefts of

firearms from licensed firearms dealers,

and increased license fees for dealers in

firearms.

On September 13, 1994, the Violent

Crime Control and Law Enforcement

Act of 1994, Pub. L. 103–322 (108 Stat.

1796) was enacted. Title XXXII of Pub.

L. 103–322 amended the GCA by

eliminating the Federal 5-day waiting

period requirement imposed by Brady

with respect to a licensee’s return of a

handgun to the person from whom it

was received.

Waiting Period (Interim Provision)

The Brady law provides that the

waiting period provisions of the law

were effective on February 28, 1994, and

cease to apply on November 30, 1998.

Brady imposes a waiting period of 5

business days (defined in the statute as

days on which State offices are open)

before a licensee may sell, deliver, or

transfer a handgun (other than the

return of a handgun to the person from

whom it was received) to a nonlicensed

individual. As defined in the Brady law,

the term ‘‘handgun’’ means—

(A) a firearm which has a short stock

and is designed to be held and fired by

the use of a single hand; and

(B) any combination of parts from

which a firearm described in

subparagraph (A) can be assembled.

Basically, the waiting period

provision makes it unlawful for any

licensed firearms importer,

manufacturer, or dealer to sell, deliver,

or transfer a handgun to a nonlicensed

individual (transferee), unless the

licensee—

(1) obtains a statement of the

transferee’s intent to obtain a handgun

containing the transferee’s name,

address, and date of birth appearing on

a valid photo identification, a

description of the identification

document, a statement that the

transferee is not a felon, under

indictment, or otherwise prohibited

from receiving or possessing the

handgun under Federal law, and the

date the statement is made;

(2) verifies the identity of the

transferee by examining the

identification document presented;

(3) within 1 day after the transferee

furnishes the statement, contacts the

chief law enforcement officer (CLEO) of

the place of residence of the transferee

and advises such officer of the contents

of the statement;

(4) within 1 day after the transferee

furnishes the statement, transmits a

copy of the statement to the CLEO of the

place of residence of the transferee; and

(5) waits 5 business days from the

date the licensee furnished notice of the

contents of the statement to the CLEO

before transferring the handgun to the

transferee (during which period the

licensee has not received information

from the CLEO that receipt or

possession of the handgun by the

transferee would be in violation of law);

or receives notice from the CLEO of the

place of residence of the transferee that

the officer has no information that the

transferee’s receipt or possession of the

handgun would violate the law.

Subsequent to the sale or transfer of

the handgun, the law requires a licensee

who receives a report from a CLEO

containing information that receipt or

possession of the handgun by the

transferee would violate Federal, State,

or local law to communicate within 1

day any information the licensee has

concerning the transfer to the CLEO of

the place of business of the licensee and

to the CLEO of the place of residence of

the transferee.

As provided in Brady, the term ‘‘chief

law enforcement officer’’ means ‘‘the

chief of police, the sheriff, or an

equivalent officer or the designee of any

such individual.’’ The law requires that

the chief law enforcement officer within

5 business days make a reasonable effort

to determine whether the transferee is

prohibited by law from receiving or

possessing the handgun sought to be

purchased. Except for records relating to

a proposed handgun sale that would

violate the law, CLEOs are required to

destroy within 20 days the purchaser’s

statement, any record containing

information derived from the statement,

and any record created as a result of the

notice referred to in (3) above.

Furthermore, these records may only be

used to carry out the purposes of the

Brady law, and no information in the

records may be conveyed to any person

for purposes other than complying with

the Brady law.

Brady also provides that an individual

who is determined to be ineligible to

purchase a handgun under the waiting

period provision may request that the

CLEO who made the determination

provide reasons for that determination.

The officer must provide such reasons

to the individual in writing within 20

business days after receipt of the

request.
Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations 10783

Alternatives to the Waiting Period

The statute provides the following

alternatives to the waiting period

provision:

(1) The transferee provides a written

statement issued within the last 10 days

by the CLEO of the transferee’s place of

residence that the transferee requires a

handgun because of a threat to the life

of the transferee or any member of the

transferee’s household;

(2) The transferee presents to the

licensee a permit issued by the State

within the past 5 years to possess a

handgun and the law of the State

requires verification that the transferee

is not prohibited by law from possessing

the handgun;

(3) Purchases in States which require

that, before any licensee transfers a

handgun to an individual, an authorized

government official has verified that

possession of the handgun by the

transferee would not violate the law

(e.g., a background check);

(4) Purchases of handguns which are

subject to the National Firearms Act and

which have been approved for transfer

under 27 CFR Part 179 (Machine Guns,

Destructive Devices, and Certain Other

Firearms);

(5) Purchases of handguns for which

the Secretary has certified that

compliance with the 5-day waiting

period procedure is impracticable

because the ratio of the number of law

enforcement officers of the State in

which the transfer is to occur to the

number of square miles of land area of

the State does not exceed 0.0025 (i.e., 25

officers per 10,000 square miles), the

premises of the licensee are remote in

relation to the CLEO of the area, and

there is an absence of

telecommunications facilities in the

geographical area in which the business

premises are located.

Additional Provisions of Pub. L. 103–

159

Titles II and III of Pub. L. 103–159

provide additional amendments to the

GCA. These provisions, which became

effective on November 30, 1993, are as

follows:

(1) Multiple sales reports. In addition

to furnishing reports of multiple

handgun sales to ATF, licensees are

required to submit such reports to the

‘‘department of State police or State law

enforcement agency of the State or local

law enforcement agency of the

jurisdiction in which the sale or other

disposition took place.’’

(2) Common carriers. Common or

contract carriers are prohibited from

requiring or causing any label or other

written notice to be placed on the

outside of any package, luggage, or other

container indicating that such package

contains a firearm. In addition, common

or contract carriers who deliver firearms

in interstate or foreign commerce are

required to obtain written

acknowledgement of receipt from the

recipient of the package or other

container in which there is a firearm.

(3) Theft of firearms. It is unlawful for

any person to steal from the person or

premises of a Federal firearms licensee

any firearm in the licensee’s business

inventory which has been shipped or

transported in interstate or foreign

commerce.

(4) License fees. License fees for all

dealers in firearms (other than

destructive devices), including

pawnbrokers, have been increased to

$200 for 3 years, except that the fee for

renewal of a license is $90 for 3 years.

Temporary Rule and Notice of

Proposed Rulemaking

On February 14, 1994, ATF published

in the Federal Register a temporary rule

(T.D. ATF–354, 59 FR 7110)

implementing the provisions of Public

L. 103–159, including the Brady

Handgun Violence Prevention Act. The

temporary rule provided immediate

guidance to Federal firearms licensees

concerning their obligations under the

Brady law.

On February 14, 1994, the Bureau also

published a notice of proposed

rulemaking cross-referenced to the

temporary regulations (Notice No. 789,

59 FR 7115). The comment period for

Notice No. 789 closed on May 16, 1994.

Analysis of Comments

ATF received 105 comments in

response to Notice No. 789. Comments

were submitted by Federal firearms

licensees, nonlicensees, industry trade

groups and other organizations (e.g.,

Collateral Loan & Secondhand Dealers

Association of California, Handgun

Control, Inc., and the National Rifle

Association of America), members of

Congress, law enforcement officials, one

Federal agency, and one State

Government.

Forty-five commenters, representing

43 percent of the total comments

received, expressed opposition to the

Brady law and urged its repeal. To

accomplish this, however, legislative

action would be necessary. Several

other commenters requested changes

that would also require legislative

action. These include reducing or

eliminating the license fees for

gunsmiths, eliminating the provision of

law with respect to the theft of firearms

from a licensee, exempting police

officers from the waiting period

requirement when purchasing a

handgun for other than official use,

eliminating the requirement that the

licensee forward to the CLEO a copy of

the transferee’s statement of intent to

obtain a handgun, and eliminating the

5-year limitation for permits in States

that have a permit-to-purchase system.

Other issues addressed in the comments

will be discussed in the following

paragraphs.

Pawn Transactions—Public Law 103–

322

Twenty-five commenters disagree

with ATF’s interpretation that the Brady

law applies to the redemption of a

pawned handgun. They argue that the

law was not intended to apply to pawn

transactions where a handgun is

redeemed by the owner.

Subsequent to publication of the

temporary regulations, on September 13,

1994, the Violent Crime Control and

Law Enforcement Act of 1994 was

enacted as Pub. L. 103–322 (108 Stat.

1796). Title XXXII of Pub. L. 103–322

amended the GCA by eliminating the

Federal 5-day waiting period

requirement imposed by Brady with

respect to a licensee’s return of a

handgun to the person from whom it

was received. Consequently, effective

September 13, 1994, the Federal waiting

period no longer applies to the

redemption of a pawned handgun by the

person from whom it was received.

Accordingly, § 178.102(a) of the final

regulations has been amended to

include this exception to the

requirements of the Brady law.

Background Check Fees

Several commenters, including

licensees and nonlicensees, oppose the

imposition of fees by law enforcement

officials for background records checks.

They argue that there is nothing in the

Brady law or temporary regulations

which allow CLEOs to charge a fee for

such checks.

The Brady law is silent with respect

to the imposition of fees for State and

local officials performing records

checks. It neither authorizes nor

prohibits CLEOs from imposing such a

fee. Consequently, such fees may be

imposed pursuant to State or local law.

Therefore, the final rule does not

address such fees.

Form 5300.35

Some commenters suggested that

Form 5300.35 and Form 4473 be

combined into one form. This

suggestion was not adopted. While the

forms contain duplicative information,

they serve distinct purposes and are

executed at different times. Form
10784 Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations

5300.35 is executed at the time the

prospective purchaser informs the

licensee of an intent to acquire a

handgun. Form 4473 is executed when

the handgun is delivered. A

considerable lapse of time may separate

the two events. Consequently, the

purchaser’s certification on Form

5300.35 that he or she is not within a

category of persons prohibited from

receiving or possessing firearms must be

made again on Form 4473 when the

firearm is delivered to the purchaser.

During the period between execution of

the two forms, the purchaser may have

been indicted, convicted of a felony, or

otherwise fallen within one of the

categories of persons who are prohibited

by law from receiving or possessing

firearms. In addition, it is impractical to

use a combined form as the Form 4473

contains information that may not be

provided to the CLEO, including a

description of the handgun to be

purchased. The Brady law expressly

limits the information that may be

required on Form 5300.35. Finally, a

combination of the two forms would be

overly complicated and confusing to

licensees and handgun purchasers.

Two commenters requested that the

regulations be revised to include as

optional information on Form 5300.35

the transferee’s race in order to assist

law enforcement officials in verifying

the transferee’s eligibility to possess a

handgun. ATF agrees with the

commenters that race would be helpful

in identifying the transferee. However,

ATF believes that the other information

on the form, including social security

number and date of birth, is adequate

for law enforcement officials to conduct

a criminal records check. Accordingly,

ATF is not amending the regulations

and the form to include the transferee’s

race.

Another modification to Form

5300.35 was requested by the

Immigration and Naturalization Service

(INS) of the Department of Justice. In

order to provide assistance to CLEOs in

identifying ineligible applicants for

handguns, the INS has suggested that a

transferee who is a lawful permanent

resident alien of the United States

include his or her alien registration

number (Alien #A lllll) on Form

5300.35 (Item 5g, ‘‘Are you illegally in

the United States?’’). The registration

number will enable INS to conduct

computer checks. Without this

information, it would be impossible for

INS to grant the assistance requested by

CLEOs. In light of INS’s request, ATF is

amending § 178.130(a)(2) to include the

alien registration number on Form

5300.35 as optional information.

Some commenters suggested that the

regulations prescribe a maximum time

period between the completion of Form

5300.35 and delivery of the handgun.

The Brady law is silent on this issue. It

requires licensees to execute Form

5300.35 after the most recent proposal

of transfer by the transferee and before

transferring the handgun. The law

would not prohibit a licensee from

transferring a handgun even though

there is a long lapse of time between

execution of the form and delivery of

the firearm. However, ATF is

encouraging licensees to have the form

executed as close in time to the delivery

of the handgun as possible, so that any

records check performed will be recent.

Another commenter requested that

§ 178.130(c), which requires licensees to

retain all executed original Forms

5300.35 even when a transfer does not

occur, be eliminated. One commenter

also recommended that the final

regulations clarify how long licensees

must retain these forms.

ATF is not amending § 178.130(c).

The retention of executed Forms

5300.35 is necessary to ensure

compliance with the Brady law which

requires that the form be completed at

the time the buyer expresses an intent

to acquire a handgun from a licensee.

With respect to retention of Form

5300.35, § 178.129(b) provides that

licensees shall retain each Form 5300.35

for a period of not less than 5 years after

notice of the intent to obtain a handgun

was forwarded to the chief law

enforcement officer.

Recordkeeping Requirements

One commenter requested an

amendment of § 178.131(a)(3),

concerning recordkeeping requirements

for handgun transactions in States that

have a permit/license-to-purchase

background check system. This section

provides that the licensee shall retain a

copy of the purchaser’s permit or

license and attach it to the firearms

transaction record, Form 4473, executed

upon delivery of the handgun. The

commenter contends that this

requirement places an unnecessary and

expensive burden on licensees,

particularly for those licensees who

cannot afford, or do not have access to,

a photocopier.

Rather than making a copy of the

purchaser’s permit or license, the

commenter suggests that the licensee

make a record of the information

contained on the permit. ATF believes

that recording this information on Form

4473 sufficiently demonstrates that a

handgun transfer has been made under

the State permit system. Accordingly,

this final rule amends § 178.131(a)(3) to

require licensees to either retain a copy

of the purchaser’s permit or license and

attach it to the Form 4473 or record

certain minimal information contained

on such permit or license on the Form

4473, including any identifying number,

the date of issuance and the expiration

date (if provided).

The same commenter requested an

amendment of § 178.131(a)(4). This

section requires licensees in alternative

States with ‘‘instant check’’ systems to

retain with the Form 4473 a statement

showing the date of verification, any

identifying number, and the name,

location, and title of the authorized

government official who did the

background check. According to the

commenter, ‘‘[i]n virtually all instances,

the person actually checking the status

of the transferee will not be an

‘authorized government official’

personally known to the licensee who

will conduct the appropriate records

check.’’

Since the agency responsible for

determining the status of the purchaser

will have verifiable information that the

background check was completed, the

commenter has suggested that the

regulations be amended to require the

name of the agency responsible for

conducting the records check rather

than the name of the Government

official who made the check.

In response, ATF is revising

§ 178.131(a)(4) to require licensees in

alternative States with ‘‘instant check’’

systems to retain with the Form 4473 a

statement indicating the date of

verification and any identifying number

assigned to the transaction by the

agency responsible for conducting the

verification of eligibility.

Common and Contract Carriers

Section 922(f)(2) of the GCA and its

implementing regulation in § 178.31(d)

impose a new requirement on common

or contract carriers to obtain a written

receipt upon delivery of a package or

other container in which there is a

firearm. Two commenters raised

concerns regarding the application of

§ 178.31(d) which they believe need to

be addressed in the final regulations.

One commenter, a trade association of

the moving industry, noted that some

customers who are relocating do not

reveal to the mover that a firearm is

included in the household goods being

shipped. The firearm may, for example,

be in a dresser or other piece of

furniture. Since the mover has no

knowledge that there is a firearm

included in the shipment, the

commenter contends that the carrier

should not be held accountable for
Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations 10785

failing to obtain proof of delivery of the

firearm from the recipient.

Pursuant to section 924 of the GCA,

whoever ‘‘knowingly’’ violates the

provisions of section 922(f) shall be

subject to certain penalties, including a

fine, imprisonment, or both. If the

carrier has no knowledge that a firearm

is being transported in the shipment, no

violation would occur. For clarification,

ATF is amending § 178.31(d) in the final

regulations to add the requisite

knowledge element.

The second commenter, a trade and

service organization of the larger U.S.

airlines, also expressed some concerns

regarding the application of § 178.31(d).

First, the commenter asked whether the

regulation requires an airline to obtain

a written receipt from a passenger when

baggage, containing a declared firearm

that accompanies the passenger, is

delivered at the destination airport. ATF

interprets section 922(f) as not requiring

carriers to obtain a written

acknowledgement of receipt upon

return of a firearm to a passenger who

places a firearm in the carrier’s custody

for the duration of the trip. ATF is

amending § 178.31(d) in the final

regulations to clarify this point.

The commenter also inquired as to

whether an electronic signature satisfies

the receipt requirement of § 178.31(d).

According to the commenter, small

cargo package services utilize electronic

notebooks that enable a consignee to

sign electronically, rather than in ink,

for a shipment. Hard copies of the

delivery records, including the signature

of the recipients, can be printed out.

The records are retrievable from the

database by the name of the consignee

or consignor.

ATF finds that an electronic signature

is a ‘‘written acknowledgement of

receipt’’ which would satisfy the

requirements of § 178.31(d), provided

the signature is that of the individual

who received the package. However,

ATF believes it is unnecessary to amend

the regulations to specifically address

this particular type of receipt.

Finally, the commenter requested a

clarification of § 178.31 with respect to

the handling of firearms shipped on

commercial air carriers on behalf of

governmental entities, specifically,

military personnel. In the case of

firearms shipped as cargo on behalf of

military personnel, § 925(a)(1) of the

GCA provides that the provisions of the

Act do not apply with respect to the

transportation, shipment, receipt,

possession, or importation of any

firearm or ammunition imported for,

sold or shipped to, or issued for the use

of governmental entities. Thus, the

provisions of § 178.31 are not applicable

to firearms being shipped or transported

on behalf of governmental entities,

including the Armed Forces.

Since there are existing regulations

which implement the provisions of

§ 925(a)(1), i.e., § 178.141, ATF has

determined that amendment of § 178.31

is unnecessary.

Chief Law Enforcement Officers

Two commenters suggested that the

final regulations provide guidance for

law enforcement officers with respect to

their responsibilities and duties in

implementing the provisions of Brady.

This includes a clarification of who is

a CLEO and who may designate a CLEO;

a clarification that CLEOs have no

authority to impose a ‘‘temporary hold’’

on the transfer of a handgun to a

transferee who is not prohibited by law

from purchasing a handgun; guidance to

CLEOs regarding what constitutes

‘‘reasonable effort’’ when conducting

background checks on purchasers; and

guidance regarding the destruction of

Brady related records by law

enforcement officers.

ATF has not included the

commenters’ suggestions in the final

rule, since the regulations address the

responsibilities of Federal firearms

licensees. ATF has given actual notice

to CLEOs of their responsibilities under

the Brady law.

Finally, the temporary regulations,

§ 178.102(a)(3), provide that the notice

licensees are required to give CLEOs

shall be actual notice and shall be given

in a manner acceptable to the CLEO. For

clarification, ATF is amending

§ 178.102(a)(3) to provide that licensees

in jurisdictions where CLEOs have

specified hand-delivery as the only

means of delivering notice will satisfy

their legal obligation under the Brady

law if they provide notice to the CLEO

by certified mail (return receipt

requested) or by any other method of

mailing which will provide a written

receipt. This section has been

redesignated as § 178.102(b).

Identification of Transferee

The temporary regulations,

§ 178.102(a)(1)(ii), require licensees to

verify the identity of the transferee by

examining the identification document

presented. The term ‘‘identification

document’’ is defined in Brady and the

regulations as ‘‘a document containing

the name, residence address, date of

birth, and photograph of the holder and

which was made or issued by or under

the authority of the United States

Government, a State, political

subdivision of a State . . .’’ A question

was raised in the comments with

respect to acceptable identification

documents in the case of military

personnel.

In the case of military personnel, the

purchaser’s military identification card

and official orders showing that his

permanent duty station is within the

State where the licensed premises is

located will suffice for purposes of the

identification requirement of Brady.

ATF was also asked if a licensee

could accept an identification document

from a transferee who has an incorrect

address. A transferee who presents a

driver’s license with an address that is

not a current residence would not

present a proper ‘‘identification

document’’ as that term is defined in the

law and the regulations. However, if the

individual presents a combination of

documents, all issued by a

governmental entity, containing all the

information required by Brady, the

combination of documents would

satisfy the identification requirements of

the law.

ATF believes the preceding

discussion sufficiently clarifies the

application of § 178.102(a)(1)(ii), and an

amendment of the regulations is

unnecessary. This section has been

redesignated as § 178.102(a)(2) in the

final regulations.

Miscellaneous

One commenter suggested that the

final regulations specify that the waiting

period provisions of Brady do not apply

to licensed collectors of curios and

relics. ATF is not adopting this

suggestion, since Brady applies to

certain handgun transactions by

licensed collectors. The law and

regulations make it clear that the

waiting period provisions of Brady

apply to transfers of handguns by

licensed IMPORTERS, licensed

MANUFACTURERS, and licensed

DEALERS to individuals who are not

licensed under section 923. Thus, it is

apparent that transfers of handguns BY

licensed collectors are not subject to the

provisions of Brady. As for transfers of

handguns by licensed importers,

licensed manufacturers, and licensed

dealers TO licensed collectors, such

transfers are subject to Brady unless the

collector is purchasing a handgun

designated as a curio or relic. A

collector’s license authorizes the

licensee to engage only in transactions

in firearms designated as curios or relics

and would not enable the licensed

collector to avoid the requirements of

the GCA, including the Brady law, for

firearms other than curios or relics.

One commenter recommended that

the final regulations include a provision

that requires licensees to obtain a

transferee’s fingerprints to resolve
10786 Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations

appeals involving positive

identification. ATF is not adopting this

suggestion. The Brady law does not

involve licensees in the appeals process.

If a CLEO determines that a prospective

buyer is ineligible to receive a firearm

and the handgun purchase is denied,

Brady provides that the individual can

request from the CLEO the reason for

such determination. Thus, the licensee

is no longer involved and the matter

will be resolved by the prospective

buyer and the CLEO. In situations where

the denial is based on inconclusive

identification of the transferee, it is

incumbent upon the prospective buyer

to provide the CLEO with whatever

additional identifying information is

needed, including fingerprints, to

establish positive identification.

Finally, this Treasury decision makes

some technical amendments to the

temporary regulations. Specifically, the

temporary regulations redesignated

§ 178.150 as § 178.151. Section 178.150

should have been redesignated as

§ 178.152. In addition, § 178.126a has

been amended to clarify that licensees

retain a copy of Form 3310.4, consistent

with the instructions on the form.

Section 178.129 provides that licensees

shall retain such copies of Form 3310.4

for a period of not less than 5 years.

Lastly, the definition of the term ‘‘chief

law enforcement officer’’ has been

moved from § 178.11 to § 178.102(c).

Executive Order 12866

It has been determined that this final

rule is not a significant regulatory action

because the economic effects flow

directly from the underlying statute and

not from this final rule. Accordingly,

this final rule is not subject to the

analysis required by this Executive

order.

Regulatory Flexibility Act

The provisions of the Regulatory

Flexibility Act relating to an initial and

final regulatory flexibility analysis (5

U.S.C. 604) are not applicable to this

final rule because the agency was not

required to publish a notice of proposed

rulemaking under 5 U.S.C. 553 or any

other law.

Paperwork Reduction Act

The collection of information

contained in this final regulation has

been reviewed and approved by the

Office of Management and Budget in

accordance with the requirements of the

Paperwork Reduction Act (44 U.S.C.

3504(h)) under control number 1512–

0520. The estimated average annual

burden associated with the collection of

information in this regulation is 2.52

hours per respondent or recordkeeper.

Comments concerning the accuracy of

this burden estimate and suggestions for

reducing this burden should be directed

to the Chief, Information Programs

Branch, Room 3450, Bureau of Alcohol,

Tobacco and Firearms, 650

Massachusetts Avenue, NW.,

Washington, DC 20226 and to the Office

of Management and Budget, Attention:

Desk Officer for the Bureau of Alcohol,

Tobacco and Firearms, Office of

Information and Regulatory Affairs,

Washington, DC 20503.

Disclosure

Copies of the temporary rule, the

notice of proposed rulemaking, all

written comments, and this final rule

will be available for public inspection

during normal business hours at: ATF

Public Reading Room, Room 6480, 650

Massachusetts Avenue, NW.,

Washington, DC.

Drafting Information

The author of this document is James

P. Ficaretta, Regulations Branch, Bureau

of Alcohol, Tobacco and Firearms.

List of Subjects in 27 CFR Part 178

Administrative practice and

procedure, Arms and ammunition,

Authority delegations, Customs duties

and inspection, Exports, Imports,

Military personnel, Penalties, Reporting

requirements, Research, Seizures and

forfeitures, and Transportation.

Authority and Issuance

PART 178—COMMERCE IN FIREARMS

AND AMMUNITION

27 CFR Part 178 is amended as

follows:

Paragraph 1. The authority citation for

27 CFR Part 178 continues to read as

follows:

Authority: 5 U.S.C. 552(a); 18 U.S.C. 847,

921–930; 44 U.S.C. 3504(h).

§ 178.11 [Amended]

Par. 2. Section 178.11 is amended by

removing the definition for ‘‘chief law

enforcement officer.’’

Par. 3. Section 178.31 is amended by

revising paragraph (d) to read as

follows:

§ 178.31 Delivery by common or contract

carrier.

* * * * *

(d) No common or contract carrier

shall knowingly deliver in interstate or

foreign commerce any firearm without

obtaining written acknowledgement of

receipt from the recipient of the package

or other container in which there is a

firearm: Provided, That this paragraph

shall not apply with respect to the

return of a firearm to a passenger who

places firearms in the carrier’s custody

for the duration of the trip.

Par. 4. Section 178.102 is revised to

read as follows:

§ 178.102 Sales or deliveries of handguns

after February 27, 1994, and before

November 30, 1998.

(a) Waiting period. Except as provided

in paragraph (d), a licensed importer,

licensed manufacturer, or licensed

dealer shall not sell, deliver, or transfer

a handgun (other than the return of a

handgun to the person from whom it

was received) to any individual who is

not licensed under this part unless the

licensee:

(1) Receives from the transferee a

statement of intent to obtain a handgun

on Form 5300.35 in accordance with

§ 178.130;

(2) Verifies the identity of the

transferee by examining the

identification document presented, and

noting on Form 5300.35 the type of

identification used;

(3) Within 1 day after the transferee

furnishes the statement, provides notice

of the contents of the statement on Form

5300.35, in the manner prescribed by

paragraph (b) of this section, to the chief

law enforcement officer of the place of

residence of the transferee;

(4) Within 1 day after the transferee

furnishes the statement to the licensee,

transmits a copy of Form 5300.35 to the

chief law enforcement officer of the

place of residence of the transferee; and

(5)(i) Five business days (meaning

days on which State offices are open)

have elapsed from the date the licensee

furnished actual notice of the contents

of the statement to the chief law

enforcement officer, during which

period the licensee has not received

information from such officer that

receipt or possession of the handgun by

the transferee would be in violation of

Federal, State, or local law; or

(ii) The licensee has received notice

from the chief law enforcement officer

within the 5 business days that the

officer has no information indicating

that receipt or possession of the

handgun by the transferee would violate

Federal, State, or local law.

Example 1. A licensee furnishes actual

notice of the contents of the statement to the

chief law enforcement officer on Tuesday. If

State offices are not open on Saturday and

Sunday, 5 business days would have elapsed

on the following Tuesday. The licensee may

deliver the handgun on the next day,

Wednesday.

Example 2. A licensee furnishes actual

notice of the contents of the statement to the

chief law enforcement officer on Saturday. If

State offices are not open on Saturday and

Sunday, 5 business days would have elapsed
Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations 10787

on the following Friday. The licensee may

deliver the handgun on the next day,

Saturday.

(b) Form of notice. The notice

required by paragraph (a)(3) of this

section shall be actual notice and shall

be given in a manner acceptable to such

officer. For example, if the chief law

enforcement officer will only accept

notice in writing and not by telephone,

notice shall be given by the licensee to

the chief law enforcement officer in

writing. In that case, the 5-day waiting

period prescribed by paragraph (a)(5)(i)

of this section begins at the time such

written notice is received by the chief

law enforcement officer. If the licensee

sends notice to such officer by mail, the

licensee shall send the notice by

certified mail (return receipt requested)

or by any other method of mailing

which will provide a written receipt:

Provided, That where the chief law

enforcement officer will only accept

notice by hand delivery, notice may be

sent in writing by the licensee to the

chief law enforcement officer by

certified mail (return receipt requested)

or by any other method of mailing

which will provide a written receipt.

(c) Chief law enforcement officer. The

law requires that notice of the contents

of the transferee’s statement of intent to

obtain a handgun and the statement be

provided by the licensee to the chief law

enforcement officer of the place of

residence of the transferee. For purposes

of this section, § 178.130, and § 178.131,

the ‘‘chief law enforcement officer’’

means the chief of police, the sheriff, or

an equivalent officer or the designee of

any such individual. Where the State or

local law enforcement officials have

notified the licensee that a particular

official has been designated to receive

the notice and statement specified in

paragraphs (a) (3) and (4) of this section,

the licensee shall provide the

information to that designated official.

(d) Alternatives to waiting period. The

provisions of paragraph (a) of this

section shall not apply if—

(1) The transferee has presented to the

licensee a written statement, issued by

the chief law enforcement officer of the

transferee’s place of residence, stating

that the transferee requires access to a

handgun because of a threat to the life

of the transferee or of any member of the

household of the transferee. The written

statement must have been issued by the

chief law enforcement officer during the

10-day period ending on the date that

the transferee has informed the licensee

of the transferee’s intention to obtain a

handgun. The written statement shall be

on a letter bearing the letterhead of the

chief law enforcement officer and shall

be signed by the officer and dated;

(2) The transferee has presented to the

licensee a permit or license that—

(i) Allows the transferee to possess or

acquire a handgun;

(ii) Was issued not more than 5 years

earlier by the State in which the transfer

is to take place; and

(iii) The law of the State provides that

such a permit is to be issued only after

an authorized government official has

verified that the information available to

such official does not indicate that

possession of a handgun by the

transferee would be in violation of

Federal, State, or local law;

(3) The law of the State requires that,

before any licensed importer, licensed

manufacturer, or licensed dealer

completes the transfer of a handgun to

an individual who is not licensed under

this part, an authorized government

official verify that the information

available to such official does not

indicate that possession of a handgun by

the transferee would be in violation of

law;

(4) The handgun is subject to the

provisions of the National Firearms Act

and has been approved for transfer

under 27 CFR Part 179; or

(5) On application of the licensee, in

accordance with the provisions of

§ 178.150, the Director has certified that

compliance with paragraph (a) of this

section is impracticable.

(6) The documents referred to in

paragraphs (d)(1) and (2) of this section

shall be retained in the records of the

licensee in accordance with the

provisions of § 178.131.

(e) Disclosure of information. (1) Any

licensed importer, licensed

manufacturer, or licensed dealer who,

after the transfer of a handgun to a

nonlicensee, receives a report from a

chief law enforcement officer containing

information that receipt or possession of

the handgun by the transferee violates

Federal, State, or local law shall, within

1 business day (meaning a day on which

State offices are open) after receipt of

the report, communicate any

information the licensee has concerning

the transfer and the transferee,

including a copy of Form 4473 required

by § 178.124, to the chief law

enforcement officer of the place of

business of the licensee and to the chief

law enforcement officer of the place of

residence of the transferee. The licensee

may also provide this information to the

local ATF office.

(2) Any licensed importer, licensed

manufacturer, or licensed dealer who

receives information from a chief law

enforcement officer regarding the

transfer of a handgun to a nonlicensee,

not otherwise available to the public,

shall not disclose such information

except to the transferee, to law

enforcement authorities, or pursuant to

the direction of a court of law.

(Approved by the Office of Management and

Budget under control number 1512–0520)

Par. 5. Section 178.126a is amended

by adding a fifth sentence to the text

preceding Example 1 to read as follows:

§ 178.126a Reporting multiple sales or

other disposition of pistols and revolvers.

* * * The licensee shall retain one

copy of Form 3310.4 and attach it to the

firearms transaction record, Form 4473,

executed upon delivery of the pistols or

revolvers.

* * * * *

Par. 6. Section 178.129(b) and the

parenthetical text at the end of the

section are revised to read as follows:

§ 178.129 Record retention.

* * * * *

(b) Firearms transaction record,

statement of intent to obtain a handgun,

and reports of multiple sales or other

disposition of pistols and revolvers.

Licensees shall retain each Form 4473

and Form 4473(LV) for a period of not

less than 20 years after the date of sale

or disposition. Licensees shall retain

each Form 5300.35 for a period of not

less than 5 years after notice of the

intent to obtain the handgun was

forwarded to the chief law enforcement

officer. Licensees shall retain each copy

of Form 3310.4 for a period of not less

than 5 years after the date of sale or

other disposition.

* * * * *

(Paragraph (b) approved by the Office

of Management and Budget under

control numbers 1512–0520 and 1512–

0006; all other recordkeeping approved

by the Office of Management and

Budget under control number 1512–

0129.)

Par. 7. Section 178.130 is amended by

revising paragraphs (a) and (e) to read as

follows:

§ 178.130 Statement of intent to obtain a

handgun after February 27, 1994, and

before November 30, 1998.

(a)(1) Except as provided in

§§ 178.102(d) and 178.131, a licensed

importer, licensed manufacturer, or

licensed dealer shall not sell, deliver, or

transfer a handgun (other than the

return of a handgun to the person from

whom it was received) unless the

licensee has received from the transferee

a statement of intent to obtain a

handgun on Form 5300.35 in duplicate.

The statement shall contain the

transferee’s name, address, and date of

birth. The transferee must date and

execute the sworn statement contained

on the form showing that the transferee
10788 Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 / Rules and Regulations

is not under indictment for a crime

punishable by imprisonment for a term

exceeding 1 year; has not been

convicted in any court of such a crime;

is not a fugitive from justice; is not an

unlawful user of or addicted to any

controlled substance; has not been

adjudicated as a mental defective or

been committed to a mental institution;

is not an alien who is illegally or

unlawfully in the United States; has not

been discharged from the Armed Forces

under dishonorable conditions; and is

not a person who, having been a citizen

of the United States, has renounced

such citizenship.

(2) In order to facilitate the transfer of

a handgun and enable the chief law

enforcement officer to verify the identity

of the person acquiring the handgun,

Form 5300.35 requests certain

additional optional information. This

information includes the social security

number, height, weight, sex, alien

registration number, and place of birth

of the transferee. Such information may

help avoid the possibility of the

transferee being misidentified as a felon

or other prohibited person.

* * * * *

(e) A licensee may obtain, upon

request, an emergency supply of Forms

5300.35 from any regional director

(compliance) or local ATF office

(compliance).

* * * * *

Par. 8. Section 178.131 is revised to

read as follows:

§ 178.131 Handgun transactions not

subject to the waiting period.

(a)(1) A licensed importer, licensed

manufacturer, or licensed dealer whose

sale, delivery, or transfer of a handgun

is made pursuant to the alternative

provisions of § 178.102(d) and is not

subject to the waiting period prescribed

by § 178.102(a) shall maintain the

records required by this paragraph.

(2) If the transfer is pursuant to a

written statement of the chief law

enforcement officer in accordance with

§ 178.102(d)(1), the licensee shall retain

such statement and attach it to the

firearms transaction record, Form 4473,

executed upon delivery of the handgun.

(3) If the transfer is pursuant to a

permit or license in accordance with

§ 178.102(d)(2), the licensee shall either

retain a copy of the purchaser’s permit

or license and attach it to the firearms

transaction record, Form 4473, or record

on the firearms transaction record, Form

4473, any identifying number, the date

of issuance, and the expiration date (if

provided) from the permit or license.

(4) If the transfer is pursuant to a

verification of eligibility to possess a

handgun (e.g., an instant record check)

by a government official in accordance

with § 178.102(d)(3), the licensee shall

attach to the firearms transaction record,

Form 4473, executed upon delivery of

the handgun, a statement showing the

date of verification and any identifying

number assigned to the transaction by

the agency responsible for conducting

the verification of eligibility.

(5) If the transfer is pursuant to a

certification by ATF in accordance with

§§ 178.102(d)(5) and 178.150, the

licensee shall maintain the certification

as part of the records required to be kept

under this subpart and for the period

prescribed for the retention of Form

5300.35 in § 178.129(b).

(b) The requirements of this section

shall be in addition to any other

recordkeeping requirements contained

in this part. (Approved by the Office of

Management and Budget under control

number 1512–0520)

Par. 9. Section 178.150 is amended by

revising the introductory text of

paragraph (a) to read as follows:

§ 178.150 Alternative to handgun waiting

period in certain geographical locations.

(a) The provisions of § 178.102(d)(5)

shall be applicable when the Director

has certified that compliance with the

waiting period provisions of

§ 178.102(a) is impracticable because:

* * * * *

Par. 10. In Subpart I, § 178.151,

Seizure and forfeiture, is redesignated as

§ 178.152.

Signed: December 6, 1994.

Daniel R. Black,

Acting Director.

Approved: December 27, 1994.

John P. Simpson,

Deputy Assistant Secretary, Regulatory, Tariff

and Trade Enforcement.

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

BILLING CODE 4810–31–U