Machine Guns, Destructive Devices and Certain Other Firearms; Background Checks for Responsible Persons of a Corporation, Trust or Other Legal Entity With Respect To Making or Transferring a Firearm, 55014-55029 [2013-21661]
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Federal Register / Vol. 78, No. 174 / Monday, September 9, 2013 / Proposed Rules
DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms,
and Explosives
27 CFR Part 479
[Docket No. ATF 41P; AG Order No. 3398–
2013]
RIN 1140–AA43
Machine Guns, Destructive Devices
and Certain Other Firearms;
Background Checks for Responsible
Persons of a Corporation, Trust or
Other Legal Entity With Respect To
Making or Transferring a Firearm
Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF),
Department of Justice.
ACTION: Notice of proposed rulemaking.
AGENCY:
The Department of Justice
proposes amending Bureau of Alcohol,
Tobacco, Firearms, and Explosives
(ATF) regulations that concern the
making or transferring of a firearm
under the National Firearms Act (NFA).
The proposed changes include: Defining
the term ‘‘responsible person,’’ as used
in reference to a trust, partnership,
association, company, or corporation;
requiring ‘‘responsible persons’’ of such
legal entities to submit, inter alia,
photographs and fingerprints, as well as
a law enforcement certificate, when the
legal entity files an application to make
an NFA firearm or is listed as the
transferee on an application to transfer
an NFA firearm; modifying the
information required in a law
enforcement certificate, so that the
certificate no longer requires a statement
from the certifying official that he or she
has no information indicating that the
maker or transferee of the NFA firearm
will use the firearm for other than
lawful purposes; and adding a new
section to ATF’s regulations to address
the possession and transfer of firearms
registered to a decedent. The new
section would clarify that the executor,
administrator, personal representative,
or other person authorized under state
law to dispose of property in an estate
may possess a firearm registered to a
decedent during the term of probate
without such possession being treated
as a ‘‘transfer’’ under the NFA. It also
would specify that the transfer of the
firearm to any beneficiary of the estate
may be made on a tax-exempt basis.
DATES: Written comments must be
postmarked and electronic comments
must be submitted on or before
December 9, 2013. Commenters should
be aware that the electronic Federal
Docket Management System will not
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accept comments after 11:59 p.m.
Eastern Time on the last day of the
comment period.
You may submit comments,
identified by docket number (ATF 41P),
by any of the following methods—
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: (202) 648–9741.
• Mail: Brenda Raffath Friend,
Mailstop 6N–602, 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;
ATTN: ATF 41P.
Instructions: All submissions received
must include the agency name and
docket number for this rulemaking. All
comments received will be posted
without change to the Federal
eRulemaking portal, https://
www.regulations.gov, including any
personal information provided. For
detailed instructions on submitting
comments and additional information
on the rulemaking process, see the
‘‘Public Participation’’ heading of the
SUPPLEMENTARY INFORMATION section of
this document.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Brenda Raffath Friend, 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
The Attorney General is responsible
for enforcing the provisions of the NFA,
26 U.S.C. Chapter 53.1 The Attorney
General has delegated that
responsibility to the Director of ATF,
subject to the direction of the Attorney
General and the Deputy Attorney
General. 28 CFR 0.130(a). Regulations
implementing the provisions of the NFA
are set forth in 27 CFR part 479, which
contains the procedural and substantive
requirements relating to the
importation, making, exportation,
transfer, taxing, identification,
registration of, and the dealing in,
1 Provisions of the NFA discussed below refer to
the ‘‘Secretary’’ rather than the ‘‘Attorney General’’;
however, the relevant functions of the Secretary of
the Treasury have been transferred to the
Department of Justice, under the general authority
of the Attorney General. 28 U.S.C. 599A(c)(1). For
ease of reference, we will substitute ‘‘Attorney
General’’ for ‘‘Secretary’’ when discussing these
statutes.
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machine guns, destructive devices, and
certain other firearms.
A. Application To Make a Firearm
Section 5822 of the NFA, 26 U.S.C.
5822, provides that no person shall
make a firearm unless the person has: (I)
Filed with the Attorney General a
written application, in duplicate, to
make and register the firearm; (II) paid
any tax payable on the making, and
evidenced such payment by affixing the
proper stamp to the original application
form; (III) identified the firearm to be
made in the application form, in such
manner as prescribed by regulation; (IV)
identified themself in the application
form, in such manner as prescribed by
regulation, except that, if such person is
an individual, the identification must
include the individual’s fingerprints
and photograph; and (V) obtained the
approval of the Attorney General to
make and register the firearm and shows
such approval on the application form.
Applications shall be denied if the
making or possession of the firearm
would place the person making the
firearm in violation of law. For purposes
of title 26, United States Code, the term
‘‘person’’ means ‘‘an individual, a trust,
estate, partnership, association,
company or corporation.’’ 26 U.S.C.
7701(a)(1).
Regulations implementing section
5822 are set forth in 27 CFR part 479,
subpart E. Section 479.62 provides, in
pertinent part, that no person may make
a firearm unless the person has filed
with the Director a written application
on ATF Form 1 (5320.1), Application to
Make and Register a Firearm, in
duplicate, and has received the approval
of the Director to make the firearm.
Approval of the application will
effectuate registration of the firearm to
the applicant. The application must
identify the firearm to be made by serial
number and other specified markings
and information. In addition, the
applicant must be identified on the form
by name and address and, if other than
a natural person (e.g., a corporation or
trust), by the name and address of the
principal officer or authorized
representative of the entity, as well as
the employer identification number of
the entity. If an individual, the
identification must also include certain
information prescribed in § 479.63.
Section 479.63 states that if the
applicant is an individual, a photograph
of the applicant, approximately 2 × 2
inches and taken within 1 year prior to
the date of the application, must be
affixed to the indicated space on each
copy of the Form 1. The regulation also
provides that a completed Federal
Bureau of Investigation (FBI) Form FD–
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258 (Fingerprint Card), containing the
fingerprints of the applicant, must be
submitted in duplicate with the
application.
In addition, section 479.63 provides
that the law enforcement certificate
located on Form 1 must be completed
and signed by the local chief of police
or county sheriff, the head of the state
police, the state or local district attorney
or prosecutor, or such other person
whose certificate may be acceptable to
the Director. The certifying official must
state, inter alia, that he or she has no
information indicating that possession
of the firearm by the maker would be in
violation of state or local law or that the
maker will use the firearm for other than
lawful purposes. The certifying official
must have jurisdiction over the area
within which the maker resides. The
purpose of this requirement is to ensure
that the official will have access to
criminal records concerning the maker,
and knowledge of the state and local
laws governing the transfer, receipt, and
possession of the firearm by the maker.
Under the current regulations, the
requirements for fingerprints,
photographs, and law enforcement
certificate specified in § 479.63 are not
applicable to an applicant who is not an
individual, e.g., a corporation or other
legal entity.
Section 479.64 sets forth the
procedure for approval of an application
to make a firearm. As specified, the
Form 1 application must be forwarded,
in duplicate, by the maker of the firearm
to the Director, in accordance with the
instructions on the form. If the
application is approved, the Director
will return the original to the maker of
the firearm and retain the duplicate.
Upon receipt of the approved
application, the maker is authorized to
make the firearm described therein. The
maker of the firearm may not, under any
circumstances, make the firearm until
the application has been forwarded to
the Director and has been approved and
returned by the Director with the NFA
stamp affixed. If the application is
disapproved, the original Form 1 and
the remittance submitted by the
applicant for the purchase of the stamp
will be returned to the applicant with
the reason for disapproval stated on the
form.
B. Application for Transfer of a Firearm
Section 5812(a) of the NFA, 26 U.S.C.
5812(a), provides that a firearm may not
be transferred unless: (I) The transferor
of the firearm has filed with the
Attorney General a written application,
in duplicate, for the transfer and
registration of the firearm to the
transferee, using the prescribed
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application form; (II) any tax payable on
the transfer is paid as evidenced by the
proper stamp affixed to the original
application form; (III) the transferee is
identified in the application form, in
such manner as the Attorney General
may prescribe by regulation, except that,
if such person is an individual, the
identification must include the
individual’s fingerprints and
photograph; (IV) the transferor of the
firearm is identified in the application
form, in such manner as the Attorney
General may prescribe by regulation; (V)
the firearm is identified in the
application form, in such manner as the
Attorney General may prescribe by
regulation; and (VI) the application form
shows that the Attorney General has
approved the transfer and the
registration of the firearm to the
transferee. Applications shall be denied
if the transfer, receipt, or possession of
the firearm would place the transferee
in violation of law. Section 5812(b)
provides that the transferee may not
take possession of the firearm unless the
Attorney General has approved the
transfer and registration of the firearm to
the transferee.
Regulations implementing section
5812 are set forth in 27 CFR part 479,
subpart F. In general, § 479.84 provides
that no firearm may be transferred in the
United States unless an application,
ATF Form 4 (5320.4), Application for
Tax Paid Transfer and Registration of
Firearm, has been filed in duplicate
with, and approved by, the Director.
Form 4 must be filed by the transferor
and must identify the firearm to be
transferred by type, serial number, and
other specified markings and
information. The application must
identify the transferor by name and
address and must include the
transferor’s Federal firearms license and
special (occupational) tax stamp, if any.
If the transferor is other than a natural
person, the title or status of the person
executing the application must be
provided. The application must identify
the transferee by name and address and,
if the transferee is a natural person not
qualified as a manufacturer, importer, or
dealer under part 479, the person must
be further identified in the manner
prescribed in § 479.85.
Section 479.85 states that if the
transferee is an individual, such person
must securely attach to each copy of the
Form 4, in the space provided on the
form, a 2 x 2 inch photograph of the
transferee taken within 1 year prior to
the date of the application. The
transferee must also attach to the
application two properly completed FBI
Forms FD–258 (Fingerprint Card). In
addition, a certificate by the local chief
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of police, county sheriff, head of the
state police, state or local district
attorney or prosecutor, or such other
person whose certificate may in a
particular case be acceptable to the
Director, must be completed on each
copy of the Form 4. The certifying
official must state, inter alia, that he or
she has no information indicating that
the receipt or possession of the firearm
would place the transferee in violation
of state or local law or that the
transferee will use the firearm for other
than lawful purposes. The certifying
official must have jurisdiction over the
area within which the transferee resides.
The purpose of this requirement is to
ensure that the official will have access
to criminal records concerning the
transferee, and knowledge of the state
and local laws governing the transfer,
receipt, and possession of the firearm by
the transferee.
Under the current regulations, the
requirements for fingerprints,
photographs, and law enforcement
certificate specified in § 479.85 apply
only to natural persons not qualified as
a manufacturer, importer, or dealer
under part 479; they do not apply to
transferees who are not natural persons,
e.g., corporations or other legal entities.
C. Transfer Tax Exemption Available
Section 5852(e) of the NFA, 26 U.S.C.
5852(e), provides that an unserviceable
firearm may be transferred as a curio or
ornament without payment of the
transfer tax imposed by section 5811,
under such requirements as the
Attorney General may by regulations
prescribe.
Section 5853(a) of the NFA, 26 U.S.C.
5853(a), provides that a firearm may be
transferred without the payment of the
transfer tax imposed by section 5811 to
any State, possession of the United
States, any political subdivision thereof,
or any official police organization of
such a government entity engaged in
criminal investigations.
Regulations implementing sections
5852(e) and 5853(a) are set forth in 27
CFR 479.90 and 479.91. These sections
provide, in pertinent part, that the
exemption from the transfer tax for the
transfer of an unserviceable firearm as a
curio or ornament or for a transfer to or
from certain government entities may be
obtained by the transferor of the firearm
by filing with the Director an
application, ATF Form 5 (5320.5),
Application for Tax Exempt Transfer
and Registration of Firearm, in
duplicate. The application must: (I)
Show the name and address of the
transferor and of the transferee; (II)
identify the Federal firearms license and
special (occupational) tax stamp, if any,
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of the transferor and of the transferee;
(III) show the name and address of the
manufacturer and the importer of the
firearm, if known; (IV) show the type,
model, overall length (if applicable),
length of barrel, caliber, gauge or size,
serial number, and other marks of
identification of the firearm; and (V)
contain a statement by the transferor
that the transferor is entitled to the
exemption because either the transferor
or the transferee is a governmental
entity coming within the purview of
§ 479.90(a) or the firearm is
unserviceable and is being transferred as
a curio or ornament. In the case of the
transfer of a firearm by a governmental
entity to a transferee who is a natural
person not qualified as a manufacturer,
importer, or dealer under part 479, the
transferee must be further identified in
the manner prescribed in § 479.85.
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II. Petition
ATF received a petition for
rulemaking, dated December 3, 2009,
filed on behalf of the National Firearms
Act Trade and Collectors Association
(NFATCA). The petition requests
amendments to §§ 479.63 and 479.85, as
well as to corresponding ATF Forms 1
and 4. The requested amendments are
discussed below.
A. Amendment of §§ 479.63 and 479.85
As discussed above, the photograph,
fingerprint card, and chief law
enforcement officer (CLEO) certificate
requirements of §§ 479.63 and 479.85 do
not apply if the applicant or transferee
is a partnership, company, association,
trust, or corporation. As such, persons
who possess, directly or indirectly, the
power or authority to receive, possess,
ship, transport, deliver, transfer or
otherwise dispose of a firearm for, or on
behalf of the entity are not subject to
these requirements, and ATF does not
conduct a background check of those
individuals.
The NFATCA expressed concern that
persons who are prohibited by law from
possessing or receiving firearms may
acquire NFA firearms through the
establishment of a legal entity such as
a corporation, trust, or partnership. It
contends that the number of
applications to acquire NFA firearms via
a corporation, partnership, trust, or
other legal entity has increased
significantly over the years. ATF has
researched the issue and has determined
that the number of Forms 1, 4, and 5
involving legal entities that are not
Federal firearms licensees increased
from approximately 840 in 2000 to
12,600 in 2009 and to 40,700 in 2012.
There accordingly has been an increase
in the number of individuals who have
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access to NFA firearms but who have
not undergone a background check. The
petitioner expressed concern that an
NFA firearm could be acquired by a
prohibited person and used in a violent
crime. Therefore, for applications for a
corporation, trust, partnership, or other
legal entity to make or receive an NFA
firearm, the petitioner has requested
amendments to §§ 479.63 and 479.85 to
require photographs and fingerprint
cards for persons who are responsible
for directing the management and
policies of the entity, so that a
background check of the individual may
be conducted.
The Department of Justice agrees with
the concerns underlying this proposal,
and believes that such persons should
not be excluded from background
checks and other requirements of the
regulations that seek to ensure that
prohibited persons do not gain access to
NFA firearms. ATF recently
encountered a situation where an
application for a transfer of a silencer
was denied because the transferee was
determined to be prohibited from
possessing an NFA firearm. The
transferor subsequently applied to
transfer the same silencer to a trust
whose name contained the same last
name as the prior transferee. ATF
reviewed the trust documents and found
that the prohibited person was a settlor
of the trust and, thus, would have access
to the firearm. ATF denied the transfer.
However, if the trust name had been
different from that of the prior
transferee, or if the transferor sought to
transfer a different firearm, ATF
employees may not have realized that
the prior transferee was a settlor of the
trust and so may have approved the
transfer.
B. Certification of Citizenship
When filing an ATF Form 1, 4, or 5,
the applicant also must submit ATF
Form 5330.20, Certification of
Compliance with 18 U.S.C. 922(g)(5)(B).
Under section 922(g)(5)(B) of the Gun
Control Act, 18 U.S.C. 922(g)(5)(B), it
generally is unlawful for any alien
admitted under a nonimmigrant visa to
ship or transport in interstate or foreign
commerce, or possess in or affecting
commerce, any firearm or ammunition,
or to receive any firearm or ammunition
that has been shipped or transported in
interstate or foreign commerce. Section
922(y)(2) provides for certain
exceptions. 18 U.S.C. 922(y)(2). If an
alien who was admitted under a
nonimmigrant visa falls within one of
the specified exceptions, or has
obtained a waiver from the Attorney
General under 18 U.S.C. 922(y)(3),
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appropriate documentation must be
provided on Form 5330.20.
The petitioner requests that the
information required on Form 5330.20
be incorporated into the requirements of
27 CFR 479.63 and 479.85 and the
corresponding forms. According to the
petitioner, ‘‘[e]limination of the ATF
Form 5330.20 by adding a citizenship
statement to the transfer [and making]
forms would reduce human effort for
both the public and ATF while reducing
funds expenditures for printing,
copying, and handling the form.’’
The Department supports the
elimination of unnecessary forms and is
committed to reducing the paperwork
burden for individuals and businesses.
Accordingly, the Department proposes
amending 27 CFR 479.62 and 479.84
and the corresponding forms to
incorporate information currently
required in Form 5330.20.
C. Revision of Instructions on Forms 1,
4, and 5
The NFATCA requests that the
instructions on applications to make or
transfer a firearm be revised so that they
are consistent with those on ATF Form
7 (5310.12), Application for Federal
Firearms License. The petitioner
appears to be referring to the instruction
on Form 7 regarding the submission of
photographs and fingerprint cards for
responsible persons, namely, in the case
of a corporation, partnership, or
association, any individual possessing,
directly or indirectly, the power to
direct or cause the direction of the
management, policies, and practices of
the legal entity, insofar as they pertain
to firearms. The Department agrees that
proposed changes to regulations will
require modifications to corresponding
Forms 1, 4, and 5, including changes to
the instructions on the forms.
D. Law Enforcement Certificate
With respect to an application to
make a firearm, 27 CFR 479.63 provides
that if the applicant is an individual, a
certificate of the local chief of police,
county sheriff, head of the state police,
state or local district attorney or
prosecutor, or such other person whose
certificate may be acceptable to the
Director, shall be completed on each
copy of the Form 1. The certificate must
state, inter alia, that the certifying
official has no information indicating
that possession of the firearm by the
maker would be in violation of state or
local law or that the maker will use the
firearm for other than lawful purposes.
The law enforcement certificate
requirement also applies with respect to
an application to transfer a firearm if the
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transferee is an individual. 27 CFR
479.85.
The petitioner requests that the law
enforcement certificate requirement be
eliminated and that ATF ‘‘adopt a CLEO
[chief law enforcement officer] process
that will include a full NICS [National
Instant Criminal Background Check
System] check for principal officers of a
trust or corporation receiving such
firearms for the trust or corporation.’’
The petitioner articulates several
reasons in support of its request. For
example, it states that the lack of
cooperation on the part of many CLEOs
in recent years has forced larger
numbers of individuals to acquire NFA
firearms via a trust or corporate entity,
so as to avoid the need for a law
enforcement certificate. The petitioner
also asserts that ATF no longer accepts
the CLEO certificate as prima facie
verification of compliance with state
and local law, and that the certificate
therefore does not alleviate the burden
on ATF to verify that receipt or
possession of a NFA firearm would not
place the applicant or transferee in
violation of state or local law.
Although ATF agrees in principle
with some of petitioner’s assertions (for
example, with the fact that ATF
independently verifies whether receipt
or possession of a NFA firearm would
place the applicant or transferee in
violation of state or local law), ATF does
not propose to eliminate the CLEO
certificate requirement at this time.
Rather, ATF proposes extending the
CLEO certificate requirement to
responsible persons of a legal entity.
ATF also proposes amending the
language of the certificate to omit the
requirement that the certifying official
state that he has no information that the
applicant or transferee will use the
firearm for other than lawful purposes.
Sections 5812 and 5822 of the NFA,
26 U.S.C. 5812 and 5822, provide that
applications shall be denied if the
transfer, making, receipt, or possession
of the firearm would place the applicant
or transferee in violation of law. When
the law enforcement certificate
requirement was implemented in 1934,
local law enforcement officials were
generally better situated than federal
officials to determine whether the
transfer, making, receipt, or possession
of the firearm would place the applicant
or transferee in violation of state or local
law. There were not at that time any
readily accessible national automated
databases, such as the National Crime
Information Center (NCIC), that could
facilitate instantaneous comprehensive
nationwide criminal background
checks. Although federal officials would
consult available criminal history and
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criminal identification records, the
assessment of whether an applicant or
transferee would use the firearm for
other than lawful purposes often was
based on information in the possession
of local police. The CLEO certificate
requirement thus was intended in part
to ensure that an individual’s authority
to make, receive, or possess an NFA
firearm was consistent with state and
local law, and that the background of
the individual was assessed by those in
the best position to evaluate it.
In light of the NCIC’s establishment in
1967 and additional technological
developments, ATF now has direct
access to a number of criminal history
databases, a fact that puts it in a stronger
position than before to assess the
criminal background of applicants and
transferees. ATF no longer relies
exclusively on CLEO certificates to
assess whether the making, receipt, or
possession of a firearm by an applicant
or transferee would violate state or local
law or whether a particular applicant or
transferee has a record that would
warrant denying the application. ATF
conducts its own background checks of
individuals applying to make and
receive NFA firearms. In addition to
transmitting fingerprints to the FBI for
a criminal history check, ATF routinely
queries the following databases and
indexes:
• National Crime Information Center
• TECS (formerly named the Treasury
Enforcement Communication System)
• National Law Enforcement
Telecommunications System
• Interstate Identification Index
• National Instant Criminal
Background Check System
Although access to these databases
provides ATF with a fuller picture of
any individual than was possible in
1934, the available information is not
comprehensive in all cases. For a variety
of reasons, it is still the case that local
law enforcement may have access to
more complete records. For example,
according to a 2006 publication by the
Department of Justice, not all state
criminal history records meet the
standard for inclusion in the Interstate
Identification Index database (the
national criminal history record
depository maintained by the FBI), and
only 50 percent of arrest records in the
database have final dispositions.2 To
ensure that background checks for NFA
firearms are as complete as possible,
ATF proposes to retain the CLEO
certificate requirement for individuals,
2 U.S. Department of Justice, The Attorney
General’s Report on Criminal History Background
Checks, at 17 (June 2006), available at https://
www.justice.gov/olp/ag_bgchecks_report.pdf.
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and to expand the requirement to
responsible persons of a legal entity.
With respect to the law enforcement
officer’s statement in the CLEO
certificate that he or she has no
information indicating that the
transferee will use the firearm described
on the Form 4 for other than lawful
purposes, the petitioner states that
‘‘[s]ome CLEOs express a concern of
perceived liability; that signing an NFA
transfer application will link them to
any inappropriate use of the firearm.’’
ATF agrees with the petitioner that state
and local law enforcement officials may
be concerned with the language of the
current law enforcement certificate, a
concern that also applies to Forms 1 and
5. ATF has received numerous
statements from chiefs of police,
sheriffs, and other CLEOs expressing
discomfort with the portion of the
certificate that requires them to state
that they have no information to suggest
that the individual will use the firearm
for other than lawful purposes. ATF is
aware that officials in a number of
jurisdictions refuse to sign the
certificate because of concern about
potential liability for an individual’s
intentional or accidental misuse. Such
refusals have resulted in litigation by
some applicants against ATF. See
Lomont v. O’Neill, 285 F.3d 9 (D.C. Cir.
2002); Westfall v. Miller, 77 F.3d 868
(5th Cir. 1996). While courts have
upheld the CLEO certificate
requirement, ATF proposes to amend
the language of the regulations and the
corresponding forms to address this
concern. Sections 479.63 and 479.85
will no longer require the certificate to
contain a statement regarding
information about the use of the firearm
for other than lawful purposes. ATF
requests comments on the specific
language proposed, and whether this
change will address the concerns raised
by some CLEOs.
III. Proposed Rule
A. Amendment of § 479.11
The Department proposes amending
§ 479.11 to add a definition for the term
‘‘responsible person.’’ The term would
include specific definitions in the case
of a trust, partnership, association,
company (including a Limited Liability
Company (LLC)), or corporation.
Depending on the context, the term
includes any individual, including any
grantor, trustee, beneficiary, partner,
member, officer, director, board
member, owner, shareholder, or
manager, who possesses, directly or
indirectly, the power or authority under
any trust instrument, contract,
agreement, article, certificate, bylaw, or
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instrument, or under state law, to
receive, possess, ship, transport, deliver,
transfer, or otherwise dispose of a
firearm for, or on behalf of, the entity.
To ensure that responsible persons, as
so defined, are subject to penalties
under 26 U.S.C. 5871 for committing
prohibited acts under the NFA (as
defined in 26 U.S.C. 5861) to the same
extent as are the legal entities with
which they are associated, the
Department also proposes amending the
definition of ‘‘person’’ in 27 CFR 479.11
to clarify that a ‘‘person’’ is a
partnership, company, association,
trust, or corporation, including each
responsible person associated with such
an entity; an estate; or an individual.
Although the definition of ‘‘person’’
in section 479.11 includes the word
‘‘estate,’’ ATF traditionally has treated
estates differently from business
entities, and does not propose defining
the term ‘‘responsible person’’ to
include estates. Estates are temporary
legal entities created to dispose of
property previously possessed by a
decedent. The term during which an
estate exists typically is defined by state
law in the State in which the decedent
resided. Conversely, partnerships,
trusts, associations, companies, and
corporations are formed for a specific
purpose and remain in existence until
action is taken to dissolve them.
Historically, ATF has treated the
transfer of an NFA-registered firearm
held by an estate differently from other
transfers under the NFA. ATF allows
the registered firearm to be held by the
executor, administrator, personal
representative, or other person
authorized under state law to dispose of
property in an estate (executor) without
such possession being treated as a
transfer under the NFA. Because the
executor holds the property temporarily,
is representing the decedent, and is
bound by the limits of probate, ATF
does not register the firearm to the
executor and allows the transfer from
the estate of the decedent directly to the
beneficiaries, with the executor signing
as the transferor. The disposition of the
firearm to the beneficiaries of the estate
is a ‘‘transfer by operation of law,’’
because it is an involuntary transfer
dictated by the terms of a will or by
intestacy laws in the State where the
decedent resided. The transfer to the
beneficiaries of the estate is treated like
any other transfer of registered firearms,
except that ATF allows such transfers to
be made on a tax-exempt basis when an
ATF Form 5 is submitted and approved
in accordance with 27 CFR 479.90. The
transfer of the firearm to persons outside
the estate requires the executor to file an
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ATF Form 4 and to pay any transfer tax
in accordance with § 479.84.
B. Amendment of §§ 479.62 and 479.63
With respect to an application to
make a firearm, the Department
proposes several amendments to
§§ 479.62 (Application to make) and
479.63 (Identification of applicant).
The proposed § 479.62:
1. Provides that if the applicant is a
partnership, company, association,
trust, or corporation, all information on
the Form 1 application must be
furnished for each responsible person of
the applicant;
2. Specifies that if the applicant is a
partnership, company, association,
trust, or corporation, each responsible
person must comply with the
identification requirements prescribed
in § 479.63(b); and
3. Requires the applicant (including,
if other than an individual, any
responsible person), if an alien admitted
under a nonimmigrant visa, to provide
applicable documentation
demonstrating that he or she falls within
an exception to 18 U.S.C. 922(g)(5)(B) or
has obtained a waiver of that provision.
The proposed § 479.63, where the
applicant is an individual, maintains
the CLEO certificate but omits the
requirement for a statement about the
use of a firearm for other than lawful
purposes. The certificate must state that
the official is satisfied that the
fingerprints and photograph
accompanying the application are those
of the applicant and that the official has
no information indicating that
possession of the firearm by the maker
would be in violation of state or local
law.
The CLEO’s certification that he or
she ‘‘is satisfied that the fingerprints
and photograph accompanying the
application are those of the applicant,’’
is an existing requirement. ATF intends
to modify Form 1 to include
certification to that effect by the CLEO
for individuals (which has always been
a requirement but was not reflected on
the current form). As discussed below,
ATF will include the same certification
on Form 5320.23 for responsible
persons of a legal entity.
The proposed § 479.63, where the
applicant is a partnership, company,
association, trust, or corporation:
1. Provides that the applicant must be
identified on the Form 1 application by
the name and exact location of the place
of business, including the name of the
county in which the business is located
or, in the case of a trust, the address
where the firearm is located. In the case
of two or more locations, the address
shown must be the principal place of
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business (or principal office, in the case
of a corporation) or, in the case of a
trust, the principal address at which the
firearm is located;
2. Requires the applicant to attach to
the application:
• Documentation evidencing the
existence and validity of the entity,
which includes, without limitation,
complete and unredacted copies of
partnership agreements, articles of
incorporation, corporate registration,
declarations of trust with any trust
schedules, attachments, exhibits, and
enclosures; however, if the entity had an
application approved as a maker or
transferee within the preceding 24
months, and there has been no change
to the documentation previously
provided, the entity may provide a
certification that the information has not
changed since the prior approval and
must identify the application for which
the documentation had been submitted
by form number, serial number, and
date approved;
• A completed ATF Form 5320.23 for
each responsible person. Form 5320.23
would require certain identifying
information for each responsible person,
including each responsible person’s full
name, position, social security number
(optional), home address, date and place
of birth, and country of citizenship;
• In accordance with the instructions
provided on Form 5320.23, a
photograph of each responsible person 2
× 2 inches in size, clearly showing a full
front view of the features of the
responsible person with head bare, with
the distance from the top of the head to
the point of the chin approximately 11⁄4
inches, and which must have been taken
within 1 year prior to the date of the
application;
• Two properly completed FBI Forms
FD–258 (Fingerprint Card) for each
responsible person. The fingerprints
must be clear for accurate classification
and should be taken by someone
properly equipped to take them; and
• In accordance with the instructions
provided on Form 5320.23, a certificate
for each responsible person completed
by the local chief of police, sheriff of the
county, head of the state police, state or
local district attorney or prosecutor, or
such other person whose certificate may
in a particular case be acceptable to the
Director. The certificate for each
responsible person must be completed
by the CLEO who has jurisdiction in the
area in which the responsible person
resides. The certificate must state that
the official is satisfied that the
fingerprints and photograph
accompanying the application are those
of the responsible person and that the
certifying official has no information
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tkelley on DSK3SPTVN1PROD with PROPOSALS
indicating that possession of the firearm
by the responsible person would be in
violation of state or local law.
ATF seeks public comments regarding
whether it is feasible to ask CLEOs to
certify that they are satisfied that the
photographs and fingerprints match
those of the responsible person. For
example, some responsible persons may
bring their fingerprint cards to the CLEO
office already stamped, and some legal
entities may have the paperwork,
fingerprint cards, and photographs for
each of their responsible persons
couriered to the CLEO office. In such
instances, ATF seeks comments on
whether CLEOs will have enough
information to certify that they are
satisfied that the photographs and
fingerprints match those of the
responsible persons, or whether changes
are needed to this proposal.
C. Amendment of §§ 479.84 and 479.85
With respect to an application to
transfer a firearm, the Department
proposes several amendments to
§§ 479.84 (Application to transfer) and
479.85 (Identification of transferee).
The proposed § 479.84:
1. Provides that the Form 4
application, in duplicate, must be filed
by the transferor. If the transferee is a
partnership, company, association,
trust, or corporation, all information on
the Form 4 application must be
furnished for each responsible person of
the transferee; and
2. Provides that the type of firearm
being transferred must be noted on the
Form 4. If the firearm is other than one
classified as ‘‘any other weapon,’’ the
applicant must submit a remittance in
the amount of $200 with the application
in accordance with the instructions on
the form. If the firearm is classified as
‘‘any other weapon,’’ the applicant must
submit a remittance in the amount of $5.
The proposed § 479.85, where the
transferee is an individual, maintains
the certificate but omits the requirement
for a statement about the use of a
firearm for other than lawful purposes.
The certificate must state that the
official is satisfied that the fingerprints
and photograph accompanying the
application are those of the applicant
and that the certifying official has no
information indicating that receipt or
possession of the firearm by the
transferee would be in violation of state
or local law.
The CLEO’s certification that he or
she ‘‘is satisfied that the fingerprints
and photograph accompanying the
application are those of the applicant,’’
is an existing requirement. ATF intends
to modify Forms 4 and 5 to include
certification to that effect by the CLEO
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for individuals (which has always been
a requirement but was not reflected on
the current forms). As discussed below,
ATF will include the same certification
on Form 5320.23 for responsible
persons of a legal entity.
The proposed § 479.85, where the
transferee is a partnership, company,
association, trust, or corporation:
1. Provides that the transferee must be
identified on the Form 4 application by
the name and exact location of the place
of business, including the name of the
county in which the business is located
or, in the case of a trust, the address
where the firearm is to be located. In the
case of two or more locations, the
address shown must be the principal
place of business (or principal office, in
the case of a corporation) or, in the case
of a trust, the principal address at which
the firearm is to be located;
2. Requires the transferee to attach to
the application:
• Documentation evidencing the
existence and validity of the entity,
which includes, without limitation,
complete and unredacted copies of
partnership agreements, articles of
incorporation, corporate registration,
declarations of trust with any trust
schedules, attachments, exhibits, and
enclosures; however, if the entity has
had an application approved as a maker
or transferee within the preceding 24
months, and there has been no change
to the documentation previously
provided, including the responsible
person information, the entity may
provide a certification that the
information has not changed since the
prior approval and must identify the
application for which the
documentation had been submitted by
form number, serial number, and date
approved;
• A completed ATF Form 5320.23 for
each responsible person. Form 5320.23
would require certain identifying
information, including the responsible
person’s full name, position, social
security number (optional), home
address, date and place of birth, and
country of citizenship;
• In accordance with the instructions
provided on Form 5320.23, a
photograph of each responsible person 2
x 2 inches in size, clearly showing a full
front view of the features of the
responsible person with head bare, with
the distance from the top of the head to
the point of the chin approximately 11⁄4
inches, and which must have been taken
within 1 year prior to the date of the
application;
• Two properly completed FBI Forms
FD–258 (Fingerprint Card) for each
responsible person. The fingerprints
must be clear for accurate classification
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55019
and should be taken by someone
properly equipped to take them; and
• In accordance with the instructions
provided on Form 5320.23, a certificate
for each responsible person completed
by the local chief of police, sheriff of the
county, head of the state police, state or
local district attorney or prosecutor, or
such other person whose certificate may
in a particular case be acceptable to the
Director. The certificate for each
responsible person must be completed
by the CLEO who has jurisdiction in the
area in which the responsible person
resides. The certificate must state that
the official is satisfied that the
fingerprints and photograph
accompanying the application are those
of the responsible person and that the
certifying official has no information
indicating that receipt or possession of
the firearm by the responsible person
would be in violation of state or local
law.
ATF seeks public comments regarding
whether it is feasible to ask CLEOs to
certify that they are satisfied that the
photographs and fingerprints match
those of the responsible person. For
example, some responsible persons may
bring their fingerprint cards to the CLEO
office already stamped, and some legal
entities may have the paperwork,
fingerprint cards, and photographs for
each of their responsible persons
couriered to the CLEO office. In such
instances, ATF seeks comments on
whether CLEOs will have enough
information to certify that they are
satisfied that the photographs and
fingerprints match those of the
responsible persons, or whether changes
are needed to this proposal.
D. Amendment of § 479.90
Section 5853(a) of the NFA, 26 U.S.C.
5853(a), provides that a firearm may be
transferred to any State, possession of
the United States, any political
subdivision thereof, or any official
police organization of such a
government entity engaged in criminal
investigations, without the payment of
the transfer tax. Regulations
implementing section 5853(a) are set
forth in 27 CFR 479.90. That section
provides, in pertinent part, that the
transfer tax exemption may be obtained
by the transferor of the firearm by filing
with the Director an application on ATF
Form 5 (5320.5), Application for Tax
Exempt Transfer and Registration of
Firearm, in duplicate. The application
must provide certain information,
including the name and address of the
transferor and the transferee. In the case
of a transfer of a firearm by a
governmental entity to a transferee who
is a natural person not qualified as a
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manufacturer, importer, or dealer under
part 479, the transferee must be further
identified in the manner prescribed in
§ 479.85.
The Department proposes amending
§ 479.90(b) to remove the word
‘‘natural.’’ Removing the word ‘‘natural’’
leaves the term ‘‘person,’’ which would
be defined in § 479.11 to include a
partnership, company, association,
trust, or corporation (including each
responsible person of such entity), an
estate, or an individual. This change
would mean that in the case of a transfer
of a firearm by a governmental entity to
a transferee that is a partnership,
company, association, trust, or
corporation, and that is not qualified as
a manufacturer, importer, or dealer
under part 479, each responsible person
of the transferee would be subject to the
requirements prescribed in § 479.85.
E. Addition of § 479.90a, Estates
The Department proposes adding a
new section to part 479 to address the
possession and transfer of firearms
registered to a decedent. The new
section would specify that the executor,
administrator, personal representative,
or other person authorized under state
law to dispose of property in an estate
(collectively ‘‘executor’’) may lawfully
possess the decedent’s NFA firearm
during the term of probate without such
possession being treated as a transfer
from the decedent. The new section also
would clarify that the executor may
transfer firearms held by the estate on a
tax-free basis when the transfer is to a
beneficiary of the estate; when the
transfer is to persons outside the estate,
the executor must pay the appropriate
transfer tax.
tkelley on DSK3SPTVN1PROD with PROPOSALS
F. Transfer of Unserviceable Firearm
Section 479.91 provides that an
unserviceable firearm, defined in
§ 479.11 as a firearm which is incapable
of discharging a shot by means of an
explosive and incapable of being readily
restored to a firing condition, may be
transferred as a curio or ornament
without payment of the transfer tax.
This section also provides that the
procedures set forth in § 479.90 must be
followed for the transfer of an
unserviceable firearm, with the
exception that a statement must be
entered on the application that the
transferor is entitled to the exemption
because the firearm is unserviceable and
is being transferred as a curio or
ornament. This section will remain
unchanged. It references the procedures
in § 479.90, which itself references
§ 479.85, which would be amended by
the proposals herein.
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G. Miscellaneous
ATF recognizes that the composition
of the responsible persons associated
with a trust, partnership, association,
company, or corporation may change,
and is considering a requirement that
new responsible persons submit Form
5320.23 within 30 days of the change.
ATF seeks comments on this option and
solicits recommendations for other
approaches.
IV. Statutory and Executive Order
Review
A. Executive Order 12866 and 13563—
Regulatory Review
This proposed rule has been drafted
in accordance with section 1(b) of
Executive Order 12866 (‘‘Regulatory
Planning and Review’’) and with section
1(b) of Executive Order 13563
(‘‘Improving Regulation and Regulatory
Review’’). The Department of Justice has
determined that this proposed rule is a
significant regulatory action under
section 3(f) of Executive Order 12866,
and accordingly this proposed rule has
been reviewed by the Office of
Management and Budget (OMB).
The proposed rule complies with the
public participation requirements of
Executive Order 13563. As this
rulemaking is in response to a petition
for rulemaking, ATF seeks the views of
those who are likely to be affected by
the proposed rule (including those who
are likely to benefit and those who are
potentially subject to the proposed rule)
prior to issuing the final rule.
This proposed rule will not have an
annual effect on the economy of $100
million or more; nor will it adversely
affect in a material way the economy, a
sector of the economy, productivity,
competition, jobs, the environment,
public health or safety, or state, local, or
tribal governments or communities.
Accordingly, this proposed rule is not
an economically significant rulemaking
as defined by Executive Order 12866.
The estimated costs and benefits of the
proposed rule are discussed below.
1. Summary of Costs and Benefits
This proposed rule would require
certain legal entities (trusts,
partnerships, companies, associations,
and corporations) applying to make or
receive an NFA firearm to submit
information for each of its responsible
persons to ATF in order for ATF to
ensure such persons are not prohibited
from possessing NFA firearms. ATF
estimates a total cost of $14.9 million
annually for: (1) Legal entities to gather,
procure, and submit such information to
ATF; (2) ATF to process the information
and conduct a background check on
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responsible persons; and (3) local and
state agencies possibly to review the
information provided on Form 5320.23
which is submitted as part of a Form 1,
4, or 5 application, conduct their own
background checks, and determine
whether to complete the certificate.
These proposed provisions will have
public safety benefits in that they will
enable ATF to ensure that the
responsible persons within legal entities
that request to make or receive NFA
firearms are not prohibited from
possessing such firearms under federal,
state, or local law.
2. Costs and Benefits of Ensuring
Responsible Persons Within Legal
Entities are Not Prohibited From
Possessing NFA Firearms
ATF estimated the cost of the
proposed provisions to ensure
responsible persons within legal entities
are not prohibited from possessing NFA
firearms by: (1) Estimating the time and
other resources that would be expended
by legal entities to complete paperwork,
obtain photographs and fingerprints,
receive CLEO certificates, and send this
information to ATF; (2) estimating the
time and other resources that would be
expended by ATF to process and review
the materials provided by the legal
entities and to conduct background
checks of responsible persons; and (3)
estimating costs for state and local
agencies in the event they review the
information provided, conduct their
own background checks; and determine
whether to complete the CLEO
certificate.
ATF estimated the cost of the time for
legal entities to complete these tasks
using employee compensation data for
September 2012 as determined by the
U.S. Department of Labor, Bureau of
Labor Statistics (BLS). See https://
www.bls.gov/news.release/archives/
ecec_12112012.pdf. The BLS
determined the hourly compensation
(which includes wages, salaries, and
benefits) for civilian workers to be
$30.80. In addition, ATF estimates that
each legal entity has an average of two
responsible persons, an estimate that is
based on ATF’s review of 39 recent
randomly selected paper (hardcopy)
applications for corporations, LLCs, and
trusts. ATF welcomes comments from
the industry and other members of the
public regarding the accuracy of its
assumptions and estimates.
In calendar year (CY) 2012, ATF
received 84,435 applications that were
either ATF Forms 1, 4, or 5. Of these,
40,700 applications were for unlicensed
legal entities (e.g., corporations,
companies, and trusts) to make or
receive an NFA firearm; 29,448 were for
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individuals to make or receive an NFA
firearm; and 14,287 were for
government agencies or qualified
Federal firearms licensees (Gov/FFLs) to
make or receive an NFA firearm. The
numbers of applications, by Form and
55021
submitting individual or entity, are set
forth below.
TABLE A—NUMBERS OF APPLICATIONS
CY 2012
Legal entity
Individual
Gov/FFL
Total
Form 1 .............................................................................................................
Form 4 .............................................................................................................
Form 5 .............................................................................................................
5328
35237
135
3758
25102
588
576
4746
8965
9662
65085
9688
Total ..........................................................................................................
40700
29448
14287
84435
Under the proposed rule, a legal
entity would be required to complete
the following steps in addition to
completing the applicable Form 1, 4, or
5 before it is permitted to make or
receive an NFA firearm:
1. Complete and submit proposed
Form 5320.23 for each responsible
person;
2. Submit fingerprints, photographs,
and CLEO certificate for each
responsible person; and
3. Submit a copy of the
documentation that establishes the legal
existence of the legal entity.
In addition, under the proposed rule,
information required on the existing
ATF Form 5330.20 would be
incorporated into the ATF Forms 1, 4,
and 5.
Cost to Legal Entities
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Cost of Completion of a Responsible
Person Form
The proposed rule would require legal
entities to complete and submit to ATF
a new form (Form 5320.23),
photographs, fingerprint cards, and a
CLEO certificate for each responsible
person before the legal entity is
permitted to make or receive an NFA
firearm. The information required on
Form 5320.23 would include the
responsible person’s name, position,
home address, social security number
(optional), date and place of birth, and
country of citizenship. The identifying
information for each responsible person
is necessary in order for ATF, and
possibly state and local law
enforcement, to conduct a background
check on each individual to ensure the
individual is not prohibited from
possessing an NFA firearm under
federal, state, or local law.
ATF estimates the time for each
responsible person to complete Form
5320.23 to be 10 minutes. Based on an
estimate of 2 responsible persons per
legal entity and 40,700 entities, the
estimated annual cost of proposed Form
5320.23 is $417,854 (10 minutes at
$30.80 per hour × 40,700 × 2).
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Cost of Photographs
ATF estimates that:
• The cost of the photographs is $8.00
(cost based on the average of the costs
determined for seven large retailers);
and
• The time needed to procure
photographs is 50 minutes.
Currently, only individuals must
obtain and submit photographs to ATF.
Based on an estimate of 29,448
individuals, the current estimated cost
is $991,416. (Cost of Photographs =
$8.00 × 29,448 = $235,584; Cost to
Procure Photographs = 50 minutes at
$30.80 per hour × 29,448 = $755,832).
Under the proposed rule, costs for
individuals would remain the same, but
legal entities would incur new costs.
Each responsible person of a legal entity
would be required to obtain and submit
photographs. Based on an estimate of 2
responsible persons per entity and
40,700 entities, the estimated cost for
legal entities to obtain and submit
photographs is $2,740,467. (Cost of
Photographs = $8.00 × 40,700 × 2 =
$651,200; Cost to Procure Photographs =
50 minutes at $30.80 per hour × 40,700
× 2 = $2,089,267).
rule, costs for individuals would remain
the same, but legal entities would incur
new costs. Each responsible person of a
legal entity would be required to obtain
and submit fingerprints to ATF. Based
on an estimate of 2 responsible persons
per entity and 40,700 entities, the
estimated cost for legal entities to obtain
and submit fingerprints is $4,460,720.
(Cost of Fingerprints = $24.00 × 40,700
× 2 = $1,953,600; Cost to Procure
Fingerprints = 60 minutes at $30.80 per
hour × 40,700 × 2 = $2,507,120).
Cost of Fingerprints
A legal entity that is applying to make
or receive an NFA firearm must provide
to ATF documentation evidencing the
existence and validity of the entity—
e.g., copies of partnership agreements,
articles of incorporation, corporate
registration, declarations of trust with
any trust schedules, attachments,
exhibits, and enclosures. Currently,
legal entities may submit this
documentation with their application
package, although they are not required
to do so. Therefore, ATF will treat the
costs for documentation as new costs.
ATF accepts, and will continue to
accept, photocopies of the documents
without notarization. ATF based the
cost estimate by determining the average
number of pages in the corporate or
trust documents for 50 recent randomly
selected paper (hardcopy) submissions,
which was 15 pages.
ATF estimates that:
ATF has reviewed various
fingerprinting services. At the present
time, ATF is only able to accept
fingerprints on hard copy fingerprint
cards. Thus, the cost estimates are based
on the submission of two fingerprint
hard copy cards for each responsible
person.
• The estimated cost of the
fingerprints is $24.00 (cost based on the
average of the costs determined for
seven fingerprint services); and
• The estimated time needed to
procure the fingerprints is 60 minutes.
Currently, only individuals must
obtain and submit fingerprints. Based
on an estimate of 29,448 individuals,
the current estimated cost is $1,613,750.
(Cost of Fingerprints = $24.00 × 29,448
= $706,752; Cost to Procure Fingerprints
= 60 minutes at $30.80 per hour ×
29,448 = $906,998). Under the proposed
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Costs for a Legal Entity To Obtain CLEO
Certificate
ATF estimates that the time needed
for a responsible person to procure the
CLEO certificate is 100 minutes (70
minutes travel time and 30 minutes
review time with the CLEO). Based on
an estimate of 2 responsible persons per
legal entity and 40,700 entities, the
estimated cost for legal entities to obtain
CLEO certificate is $4,178,533 (100
minutes at $30.80 per hour × 40,700 ×
2).
Cost of Documents To Establish
Existence of Legal Entity
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• The cost of the copied
documentation is $1.50 ($.10 per page at
15 pages); and
• The time needed to copy
attachments is 5 minutes.
Assuming 40,700 entities would
provide ATF this documentation each
year, the estimated annual cost to
submit the documentation is $165,513.
(Cost of documentation = $1.50 × 40,700
= $61,050; Cost to copy attachments =
5 minutes at $30.80 per hours × 40,700
= $104,463). This cost is not dependent
on the number of responsible persons
associated with a legal entity. ATF notes
that the estimated cost is likely to be
lower if the entity already has filed the
documents with ATF as part of a recent
making or transfer application and the
information previously provided has not
changed. Under these circumstances,
the entity can certify to ATF that the
documentation is on file and is
unchanged.
Cost of Completing and Mailing Form 1,
4, or 5
Currently, both individuals and legal
entities must complete and mail Form 1,
4, or 5. This proposed rule should not
change the costs associated with this
process. Even if there are multiple
responsible persons associated with a
legal entity, the legal entity still would
be completing and mailing one Form 1,
4, or 5.
The estimated costs to legal entities
that are discussed above are
summarized in Tables B(1) and B(2).
The total estimated new cost of the
proposals for legal entities to provide to
ATF identification information for each
of its responsible persons is $11,963,087
annually.
TABLE B(1)—COST ESTIMATES OF THE TIME TO COMPLY WITH THE PROPOSED RULE’S REQUIREMENTS
Estimated time
(minutes)
Process
Number of
entities
2 Responsible
persons
Completion of F 5320.23 .............................................................................................................
Procure Photographs ...................................................................................................................
Procure Fingerprints ....................................................................................................................
Obtain Certificate .........................................................................................................................
Copy Attachments .......................................................................................................................
10
50
60
100
5
40,700
40,700
40,700
40,700
40,700
$417,854
2,089,267
2,507,120
4,178,533
104,463
Total ......................................................................................................................................
........................
........................
9,297,237
TABLE B(2)—COST ESTIMATES OF PROCURING PHOTOGRAPHS, FINGERPRINTS, AND DOCUMENTATION
Process-related item
Estimated cost
Number of
entities
2 Responsible
persons
Photographs .................................................................................................................................
Fingerprints ..................................................................................................................................
Documentation of Legal Entity ....................................................................................................
$8.00
24.00
1.50
40,700
40,700
40,700
$651,200
1,953,600
61,050
Total ......................................................................................................................................
........................
........................
2,665,850
Cost to ATF
ATF incurs costs to process forms,
fingerprint cards, photographs, and to
conduct and review background checks.
Currently, ATF incurs these costs for the
29,448 applications for individuals to
make or receive NFA firearms. Under
the proposed rule, ATF would incur
these costs for applications for legal
entities to make or receive NFA
firearms. ATF estimates that:
• ATF’s cost for FBI to process a set
of fingerprints is $14.50. (The cost is
based on FBI’s current fee, which is set
by statute on a cost recovery basis.)
• The estimated cost for an examiner
at ATF’s NFA Branch to conduct and
review the results of a background
check is $7.70 (15 minutes at $30.80 per
hour); and
• The estimated cost to print the new
5320.23 forms is $.01 per form.
Based on an estimate of 2 responsible
persons per legal entity and 40,700
entities, the estimated cost for ATF to
process forms, fingerprint cards,
photographs, and to conduct and review
background checks for applications for
legal entities to make or receive firearms
is $1,807,894 annually. (Cost for
processing fingerprints = $14.50 ×
40,700 × 2 = $1,180,300; Cost for
background checks = $7.70 × 40,700 ×
2 = $626,780; Cost to print forms = $.01
× 40,700 × 2 = $814).
TABLE C—COSTS TO ATF UNDER PROPOSED RULE
Number of
entities
2 Responsible
persons
tkelley on DSK3SPTVN1PROD with PROPOSALS
Process
Estimated cost or time
ATF’s costs for Processing Fingerprints ......................
Time Needed to Conduct and Review Background
Check by ATF.
Cost of 5320.23 form ....................................................
$14.50 ...........................................................................
15 minutes ....................................................................
40,700
40,700
$1,180,300
626,780
.01 .................................................................................
40,700
814
Total .......................................................................
.......................................................................................
........................
1,807,894
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Cost to State and Local Agencies
The proposed requirement for each
responsible person of a legal entity to
obtain a CLEO certificate may increase
the cost to state and local agencies as
they may decide to review the
information provided, conduct their
own background checks, and determine
whether to complete the certificate.
Based on an estimate of 2 responsible
persons per legal entity and 40,700
55023
entities, the estimated cost for state and
local agencies to determine whether to
sign the CLEO certificate is $1,253,560
(30 minutes of review time at $30.80 per
hour × 40,700 × 2).
TABLE D—COSTS TO STATE AND LOCAL AGENCIES UNDER PROPOSED RULE
Number of
entities
2 Responsible
persons
Estimated time
Agency Costs to Review/Sign Certificate .....................
30 minutes ....................................................................
40,700
$1,263,560
Total .......................................................................
tkelley on DSK3SPTVN1PROD with PROPOSALS
Process
.......................................................................................
........................
1,263,560
Benefits of Background Checks for
Responsible Persons
Existing regulations do not require the
identification of responsible persons of
a legal entity. Therefore, ATF lacks the
necessary information to perform a
background check on a person who
meets this proposed rule’s definition of
‘‘responsible person’’ to determine if
that person is prohibited from
possessing an NFA firearm. This
proposed rule, if finalized, would
provide important public safety and
security benefits by enabling ATF to
identify and perform background checks
on such persons.
For example, there may be a number
of responsible persons associated with a
corporation, LLC, or trust. As noted
above, based on a recent review of paper
(hardcopy) applications for
corporations, LLCs, and trusts, ATF
estimates that there are 2 responsible
persons associated with such legal
entities. One or more of these persons
could be a prohibited person, e.g., a
convicted felon. Currently, when an
NFA transfer application is approved, a
corporate officer or trustee arranges for
the receipt of the firearm. If the seller is
a Federal firearms licensee, the officer
or trustee must complete ATF Form
4473 (5300.9), Firearms Transaction
Record. On the Form 4473, the officer or
trustee must answer questions which
determine if the officer or trustee is a
prohibited person. If one of the officers
or trustees is prohibited, then one of the
other officers or trustees may pick up
the firearm and complete the Form
4473. If the seller is not a licensee, then
no form is completed. Once the firearm
is picked up by the officer or trustee,
then it becomes corporate or trust
property and can be possessed by any of
the officers or trustees. In Texas, ATF
became aware of a situation in which
the member of an LLC was an illegal
alien, living in the United States under
an assumed name, and had a felony
warrant outstanding. At that time, the
LLC had 19 firearms registered to it and
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ATF lacked the necessary information to
conduct any background checks to
determine whether the member was a
prohibited person. In Tennessee, as a
result of information provided by a
Federal firearms licensee, ATF became
aware of applications submitted to
transfer two NFA firearms to a trust in
which one of the trustees was a
convicted felon. If there had been no
referral, ATF would not have known of
the need to conduct any background
checks for the trust members to
determine if any were prohibited
persons. As a result, under current
regulations, prohibited persons can
circumvent the statutory prohibitions
and receive and possess firearms. This
proposed rule will make the
requirements for background checks the
same for certain legal entities as they are
now for individuals.
3. Consolidation of Forms
The incorporation of the information
required on ATF Form 5330.20 into the
existing Forms 1, 4, and 5 will reduce
the burden upon the applicant or
transferee by eliminating an additional
form to be completed and filed. The
current estimated time to complete the
form is 3 minutes. Because the
information requested on the forms is
the same, any savings result from the
applicant not having to attach a separate
form. ATF estimates the elimination of
the form will reduce the industry costs
by $108,028 (70,148 transactions for
both individuals and legal entities × 3
minutes per form saved × $30.80 per
hour) and ATF’s printing costs by $701
(70,148 forms × .01 cents per form) for
a total reduction in costs of $108,729.
4. Number of Legal Entities
ATF cannot estimate with reasonable
precision what effect this proposed rule
will have on resources used for creating
and maintaining these entities. ATF
seeks information from the public to
measure this effect, including how
many fewer legal entities there may be
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(if any), and how much it costs on
average to create and maintain such
entities.
B. Executive Order 13132
This proposed 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.
While there would be an increase in
the paperwork filed with ATF and an
increase in the resources ATF devotes to
processing that paperwork, as well as a
potential increase in the resources state
and local agencies may devote to
processing CLEO certificates for
responsible persons of a legal entity, any
impact on state and local resources
would be voluntary and expected to be
minimal, and must be balanced against
the benefits of ATF being able to
identify and conduct background checks
on such persons. Therefore, in
accordance with section 6 of Executive
Order 13132 (‘‘Federalism’’), the
Attorney General has determined that
this proposed regulation does not have
sufficient federalism implications to
warrant the preparation of a federalism
summary impact statement.
C. Executive Order 12988
This proposed 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
The Regulatory Flexibility Act
requires an agency to conduct a
regulatory flexibility analysis of any rule
subject to notice and comment
rulemaking requirements unless the
agency certifies that the rule will not
have a significant economic impact on
a substantial number of small entities. 5
U.S.C. 605(b). Small entities include
small businesses, small not-for-profit
enterprises, and small governmental
jurisdictions. 5 U.S.C. 601. The Attorney
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General has reviewed this proposed rule
and, by approving it, certifies that this
proposed rule will not have a significant
economic impact on a substantial
number of small entities.
This proposed rule will primarily
affect legal entities that are seeking to
make or acquire NFA firearms and are
not making or acquiring them as a
qualified Federal firearms licensee. ATF
believes that the increased cost of
implementing the proposed regulations
will not be significant on the entities.
The estimated annual cost of
implementing the proposed regulations
is $11,963,087 for identification costs
for legal entities. Accordingly, the
estimated cost increase per entity is
$293.93 (Cost of increase ÷ 40,700
entities).
E. Small Business Regulatory
Enforcement Fairness Act of 1996
This proposed rule is not a major rule
as defined by section 251 of the Small
Business Regulatory Enforcement
Fairness Act of 1996. 5 U.S.C. 804. This
proposed rule will not result in an
annual effect on the economy of $100
million or more; a major increase in
costs or prices; or significant adverse
effects on competition, employment,
investment, productivity, innovation, or
on the ability of United States-based
enterprises to compete with foreignbased enterprises in domestic and
export markets.
tkelley on DSK3SPTVN1PROD with PROPOSALS
F. Unfunded Mandates Reform Act of
1995
This proposed rule will not result in
the expenditure by state, local, and
tribal governments, in the aggregate, 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
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995.
G. Paperwork Reduction Act
Under the Paperwork Reduction Act,
a federal agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a valid control
number assigned by OMB. This
proposed rule would revise several
existing information collections and
create a new information collection. The
existing information collections that
would be revised are in 27 CFR 479.62,
479.63, 479.84, 479.85, 479.90, 479.90a,
and 479.91, which are associated with
ATF Forms 1, 4, and 5. Forms 1, 4, and
5 have been approved by the OMB
under control numbers 1140–0011,
1140–0014, and 1140–0015,
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respectively. The new information
collection that would be created is
associated with ATF Form 5320.23.
Form 5320.23 would require certain
identifying information for each
responsible person within a legal entity
requesting to make or receive an NFA
firearm, including their full name,
position, social security number
(optional), home address, date and place
of birth, and country of citizenship.
Form 5320.23 also would require a
proper photograph of each responsible
person; two properly completed FBI
Forms FD–258 (Fingerprint Card) for
each responsible person; and a law
enforcement certificate.
ATF is submitting a request to revise
currently approved OMB control
numbers 1140–0011, 1140–0014, and
1140–0015, and to obtain a new OMB
control number for ATF Form 5320.23
in accordance with 5 CFR 1320.11. ATF
requests public comments on all aspects
of these proposed collections, including
to:
• Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
• evaluate the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
• enhance the quality, utility, and
clarity of the information to be
collected; and
• minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
The estimated total annual burden
hours and related information (number
of respondents, frequency of responses,
costs, etc.) for the proposed revisions to
Forms 1, 4, and 5, as well as the new
Form 5320.23, appear below.
For a recent submission of an
information collection request to the
OMB regarding other changes to these
forms, ATF performed an analysis of the
time it takes to fulfill the requirements
of each form. ATF found that the time
varies among individuals, legal entities,
and Gov/FFLs. For example, ATF
estimates that it takes four hours for an
individual to complete Form 1 due to
the requirements to provide
fingerprints, photographs and a law
enforcement certificate. ATF estimates it
takes less time for a Gov/FFL to
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Sfmt 4702
complete Form 1 because the
application does not require the
submission of these items. The
estimated submission times for
individuals, legal entities, and Gov/
FFLs are:
• 230 minutes for submission by an
individual (50 minutes to procure
photographs; 60 minutes to procure
fingerprints, 100 minutes to obtain
certificate; and 20 minutes to complete
and mail the form);
• 465 minutes for a submission by a
legal entity (for two responsible
persons) (20 minutes to complete Form
5320.23; 100 minutes to procure
photographs; 120 minutes to procure
fingerprints; 200 minutes to obtain
CLEO certificate; 5 minutes to procure
the attachments; and 20 minutes to
complete and mail the form); and
• 20 minutes (to complete and mail
the form) for a submission by a Gov/
FFL.
With respect to ATF Form 1:
Estimated total annual reporting and/
or recordkeeping burden: 55,890 hours
(current estimated total annual reporting
and/or recordkeeping burden from OMB
Information Collection Number 1140–
0011: 4,284 hours). Note: 576 Gov/FFL
responders will take 20 minutes (192
hours); 5,328 legal entity responders
will take 465 minutes (41,292 hours);
and 3,758 individual responders will
take 230 minutes (14,406 hours). (The
numbers of responders by type are
estimated based on the data in Table A.)
Estimated average burden hours per
respondent and/or recordkeeper: 5.78
hours (current estimated average burden
hours per respondent or recordkeeper
from OMB Information Collection
Number 1140–0011: 4 hours).
Estimated number of respondents
and/or recordkeepers: 9,662 (current
estimated number of respondents and/or
recordkeepers from OMB Information
Collection Number 1140–0011: 1,071).
Estimated annual frequency of
responses: 1 (current estimated annual
frequency of responses from OMB
Information Collection Number 1140–
0011: 1).
Estimated total costs: $487,757.60.
$461,248 (fingerprints and photographs
($32 × 3,758 (individuals) =
$120,256; $32 × 10,656 (2
responsible persons) = $340,992))
$7,992 (copies of legal entity documents
($1.50 × 5,328))
$18,517.60 (mailing ($2 each for 9,086
respondents and $.60 for 576
respondents) (current estimated total
costs from OMB Information Collection
Number 1140–0011: $471).
With respect to ATF Form 4:
Estimated total annual reporting and/
or recordkeeping burden: 370,893 hours
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Federal Register / Vol. 78, No. 174 / Monday, September 9, 2013 / Proposed Rules
(current estimated total annual reporting
and/or recordkeeping burden from OMB
Information Collection Number 1140–
0014: 44,260 hours). Note: 4,746 Gov/
FFL respondents will take 20 minutes
(1,582 hours), 35,237 legal entity
respondents will take 465 minutes
(273,087 hours), and 25,102 individual
respondents will take 230 minutes
(96,224 hours). (The numbers of
responders by type are estimated based
on the data in Table A.)
Estimated average burden hours per
respondent and/or recordkeeper: 5.69
hours (current estimated average burden
hours per respondent and/or
recordkeeper from OMB Information
Collection Number 1140–0014: 4 hours).
Estimated number of respondents
and/or recordkeepers: 65,085 (current
estimated number of respondents and/or
recordkeepers from OMB Information
Collection Number 1140–0014: 11,065).
Estimated annual frequency of
responses: 1 (current estimated annual
frequency of responses from OMB
Information Collection Number 1140–
0014: 1).
Estimated total costs: $3,234,813.
$3,058,432 (fingerprints and
photographs ($32 × 25,102
(individuals) = $803,264; $32 ×
70,474 (2 responsible persons) =
$2,255,168))
$52,855.50 (copies of legal entity
documents ($1.50 × 35,237))
$123,525.60 (mailing ($2 each for
60,339 respondents and $.60 for 4,746
respondents) (current estimated total
costs from OMB Information Collection
Number 1140–0014: $4,536).
With respect to ATF Form 5:
Estimated total annual reporting and/
or recordkeeping burden: 6,288 hours
(current estimated total annual reporting
and/or recordkeeping burden from OMB
Information Collection Number 1140–
0015: 379,896 hours).3 Note: 8,965 Gov/
FFL respondents will take 20 minutes
(2,988 hours); 135 legal entity
respondents will take 465 minutes
(1,046 hours); and 588 individual
respondents will take 230 minutes
(2,254 hours). (The numbers of
responders by type are estimated based
on the data in Table A.)
Estimated average burden hours per
respondent and/or recordkeeper: .65
hours (current estimated average burden
hours per respondent and/or
recordkeeper from OMB Information
Collection Number 1140–0015: 4 hours).
3 The large drop in burden hours from 379,896 to
6,288 is attributable to a change in methodology.
We no longer count each item on a Form 5 as a
separate response. The current burden hours using
the new methodology is 4,380 hours ((7,388
government agencies or legal entities × 20 minutes
and ÷ 60) plus (500 individual respondents × 230
minutes and ÷ 60)).
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Jkt 229001
Estimated number of respondents
and/or recordkeepers: 9,688 (current
estimated number of respondents and/or
recordkeepers from OMB Information
Collection Number 1140–0015: 7,888).
Estimated annual frequency of
responses: 1 (current estimated annual
frequency of responses from OMB
Information Collection Number 1140–
0015: 12).
Estimated total costs: $34,483.50.
$27,456 (fingerprints and photographs
($32 × 588 (individuals) = $18,816;
$32 × 270 (2 responsible persons) =
$8,640))
$202.50 (copies of legal entity
documents ($1.50 × 135))
$6,825 (mailing ($2 each for 723
respondents and $.60 for 8,965
respondents)) (current estimated total
costs from OMB Information Collection
Number 1140–0015: $20,894).
With respect to ATF Form 5320.23:
Estimated total annual reporting and/
or recordkeeping burden: 13,566.67
hours (based on 2 responsible persons).
Estimated average burden hours per
respondent and/or recordkeeper: .33
hours.
Estimated number of respondents
and/or recordkeepers: 40,700.
Estimated annual frequency of
responses: 1.
Estimated total costs: 0. (All the
estimated costs are associated with the
submission package for Forms 1, 4, and
5.)
The current estimated costs provided
above for Forms 1, 4, and 5 are being
revised. Due to an administrative
oversight, the initial costs provided to
OMB only reflected the costs associated
with mailing the completed forms to
ATF. They did not include the costs
associated with certain information that
must be included as part of the
application, e.g., fingerprint cards. ATF
has provided OMB with the adjusted
cost estimates for these forms.
Public Participation
A. Comments Sought
ATF is requesting comments on the
proposed rule from all interested
persons. ATF is also specifically
requesting comments on the clarity of
this proposed rule and how it may be
made easier to understand, as well as
comments on the costs or benefits of the
proposed rule and on the appropriate
methodology and data for calculating
those costs and benefits.
All comments must reference the
docket number (ATF 41P), be legible,
and include the commenter’s name and
complete mailing address. ATF will
treat all comments as originals and will
not acknowledge receipt of comments.
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55025
Comments received on or before the
closing date will be carefully
considered. Comments received after
that date will be given the same
consideration if it is practical to do so,
but assurance of consideration cannot
be given except as to comments received
on or before the closing date.
B. Confidentiality
Comments, whether submitted
electronically or on paper, will be made
available for public viewing at ATF, and
on the Internet as part of the
eRulemaking initiative, and are subject
to the Freedom of Information Act.
Commenters who do not want their
name or other personal identifying
information posted on the Internet
should submit their comment by mail or
facsimile, along with a separate cover
sheet that contains their personal
identifying information. Both the cover
sheet and comment must reference this
docket number (ATF 41P). Information
contained in the cover sheet will not be
posted on the Internet. Any personal
identifying information that appears
within the comment will be posted on
the Internet and will not be redacted by
ATF.
Any material that the commenter
considers to be inappropriate for
disclosure to the public should not be
included in the comment. Any person
submitting a comment shall specifically
designate that portion (if any) of his
comments that contains material that is
confidential under law (e.g., trade
secrets, processes). Any portion of a
comment that is confidential under law
shall be set forth on pages separate from
the balance of the comment and shall be
prominently marked ‘‘confidential’’ at
the top of each page. Confidential
information will be included in the
rulemaking record but will not be
disclosed to the public. Any comments
containing material that is not
confidential under law may be disclosed
to the public. In any event, the name of
the person submitting a comment is not
exempt from disclosure.
C. Submitting Comments
Comments may be submitted in any of
three ways:
• Mail: Send written comments to the
address listed in the ADDRESSES section
of this document. Written comments
must appear in minimum 12 point font
size (.17 inches), include your mailing
address, be signed, and may be of any
length.
• Facsimile: You may submit
comments by facsimile transmission to
(202) 648–9741. Faxed comments must:
(1) Be legible and appear in minimum
12 point font size (.17 inches);
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(2) Be on 81⁄2″ x 11″ paper;
(3) Contain a legible, written
signature; and
(4) Be no more than five pages long.
ATF will not accept faxed comments
that exceed five pages.
• Federal eRulemaking Portal: To
submit comments to ATF via the
Federal eRulemaking portal, visit
https://www.regulations.gov and follow
the instructions for submitting
comments.
D. Request for Hearing
Any interested person who desires an
opportunity to comment orally at a
public hearing should submit his or her
request, in writing, to the Director of
ATF within the 90-day comment period.
The Director, however, reserves the
right to determine, in light of all
circumstances, whether a public hearing
is necessary.
Disclosure
Copies of this proposed rule and the
comments received will be available for
public inspection through the Federal
eGovernment portal, https://
www.regulations.gov, 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.
Drafting Information
The author of this document is
Brenda Raffath Friend, Office of
Regulatory Affairs, Enforcement
Programs and Services, Bureau of
Alcohol, Tobacco, Firearms, and
Explosives.
List of Subjects in 27 CFR Part 479
Administrative practice and
procedure, Arms and munitions,
Authority delegations, Customs duties
and inspection, Exports, Imports,
Military personnel, Penalties, Reporting
and recordkeeping requirements,
Research, Seizures and forfeitures, and
Transportation.
Authority and Issuance
tkelley on DSK3SPTVN1PROD with PROPOSALS
Accordingly, for the reasons
discussed in the preamble, 27 CFR part
479 is proposed to be amended as
follows:
PART 479—MACHINE GUNS,
DESTRUCTIVE DEVICES, AND
CERTAIN OTHER FIREARMS
1. The authority citation for 27 CFR
part 479 is revised to read as follows:
■
Authority: 26 U.S.C. 5812; 26 U.S.C. 5822;
26 U.S.C. 7805.
2. Amend § 479.11, by revising the
definition for ‘‘Person’’ and adding a
■
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definition for the term ‘‘Responsible
person’’ to read as follows:
§ 479.11
Meaning of terms.
*
*
*
*
*
Person. A partnership, company,
association, trust, corporation, including
each responsible person associated with
such an entity; an estate; or an
individual.
*
*
*
*
*
Responsible person. (1) In the case of
a trust, any individual, including any
grantor, trustee, or beneficiary, who
possesses, directly or indirectly, the
power or authority under any trust
instrument or other document, or under
state law, to receive, possess, ship,
transport, deliver, transfer, or otherwise
dispose of a firearm for, or on behalf of,
the trust;
(2) In the case of a partnership, any
individual, including any partner or
manager, who possesses, directly or
indirectly, the power or authority under
any contract, agreement, article,
certificate, bylaw, or instrument, or
under state law, to direct the
management and policies of the
partnership to receive, possess, ship,
transport, deliver, transfer, or otherwise
dispose of a firearm for, or on behalf of,
the partnership;
(3) In the case of an association, any
individual, including any member,
officer, director, board member, owner,
or manager, who possesses, directly or
indirectly, the power or authority under
any contract, agreement, article,
certificate, bylaw, or instrument, or
under state law, to direct the
management and policies of the
association to receive, possess, ship,
transport, deliver, transfer, or otherwise
dispose of a firearm for, or on behalf of,
the association;
(4) In the case of a company
(including a Limited Liability Company
(LLC)), any individual, including any
member, officer, director, board
member, owner, shareholder, or
manager, who possesses, directly or
indirectly, the power or authority under
any contract, agreement, article,
certificate, bylaw, or instrument, or
under state law, to direct the
management and policies of the
company to receive, possess, ship,
transport, deliver, transfer, or otherwise
dispose of a firearm for, or on behalf of,
the company; and
(5) In the case of a corporation, any
individual, including any officer,
director, board member, owner,
shareholder, or manager, who possesses,
directly or indirectly, the power or
authority under any contract,
agreement, article, certificate, bylaw, or
instrument, or under state law, to direct
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Fmt 4702
Sfmt 4702
the management and policies of the
corporation to receive, possess, ship,
transport, deliver, transfer, or otherwise
dispose of a firearm for, or on behalf of,
the corporation.
*
*
*
*
*
■ 3. Revise § 479.62 to read as follows:
§ 479.62
Application to make.
(a) General. No person shall make a
firearm unless the person has filed with
the Director a completed application on
ATF Form 1 (5320.1), Application to
Make and Register a Firearm, in
duplicate, executed under the penalties
of perjury, to make and register the
firearm and has received the approval of
the Director to make the firearm, which
approval shall effectuate registration of
the firearm to the applicant. If the
applicant is not a licensed
manufacturer, importer, or dealer
qualified under this part and is a
partnership, company (including a
Limited Liability Company (LLC)),
association, trust, or corporation, all
information on the Form 1 application
shall be furnished for each responsible
person of the applicant.
(b) Preparation of ATF Form 1. All of
the information called for on Form 1
shall be provided, including:
(1) The type of application, i.e., tax
paid or tax exempt. If the making of the
firearm is taxable, the applicant shall
submit a remittance in the amount of
$200 with the application in accordance
with the instructions on the form;
(2) The identity of the applicant. If an
individual, the applicant shall provide
his or her name, address, and date and
place of birth, and also comply with the
identification requirements prescribed
in § 479.63(a). If other than an
individual, the applicant shall provide
its name, address, and employer
identification number, as well as the
name and address of each responsible
person. Each responsible person of the
applicant also shall comply with the
identification requirements prescribed
in § 479.63(b);
(3) A description of the firearm to be
made by type, caliber, gauge or size,
model, length of barrel, serial number,
other marks of identification, and the
name and address of the original
manufacturer (if the applicant is not the
original manufacturer);
(4) The applicant’s Federal firearms
license number (if any);
(5) The applicant’s special
(occupational) tax stamp (if applicable);
and
(6) If the applicant (including, if other
than an individual, any responsible
person) is an alien admitted under a
nonimmigrant visa, applicable
documentation demonstrating that the
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Federal Register / Vol. 78, No. 174 / Monday, September 9, 2013 / Proposed Rules
nonimmigrant alien falls within an
exception to 18 U.S.C. 922(g)(5)(B)
under 18 U.S.C. 922(y)(2) or has
obtained a waiver of that provision
under 18 U.S.C. 922(y)(3).
(c) Approval of Form 1. If the
application is approved, the Director
will affix a National Firearms Act stamp
to the original application in the space
provided therefor and properly cancel
the stamp (see § 479.67). The approved
application will then be returned to the
applicant.
■ 4. Revise § 479.63 to read as follows:
tkelley on DSK3SPTVN1PROD with PROPOSALS
§ 479.63
Identification of applicant.
(a) If the applicant is an individual,
the applicant shall:
(1) Securely attach to each copy of the
Form 1, in the space provided on the
form, a photograph of the applicant 2 x
2 inches in size, clearly showing a full
front view of the features of the
applicant with head bare, with the
distance from the top of the head to the
point of the chin approximately 11⁄4
inches, and which shall have been taken
within 1 year prior to the date of the
application;
(2) Attach to the application two
properly completed FBI Forms FD–258
(Fingerprint Card). The fingerprints
must be clear for accurate classification
and should be taken by someone
properly equipped to take them; and
(3) Have a certificate completed on
each copy of the Form 1 by the local
chief of police, sheriff of the county,
head of the state police, state or local
district attorney or prosecutor, or such
other person whose certificate may in a
particular case be acceptable to the
Director, for the jurisdiction in which
the individual resides. The certificate
shall state that the certifying official is
satisfied that the fingerprints and
photograph accompanying the
application are those of the applicant
and that the certifying official has no
information indicating that possession
of the firearm by the maker would be in
violation of state or local law.
(b) If the applicant is not a licensed
manufacturer, importer, or dealer
qualified under this part and is a
partnership, company (including a
Limited Liability Company (LLC)),
association, trust, or corporation, the
applicant shall:
(1) Be identified on the Form 1 by the
name and exact location of the place of
business, including the name and
number of the building and street, and
the name of the county in which the
business is located or, in the case of a
trust, the address where the firearm is
located. In the case of two or more
locations, the address shown shall be
the principal place of business (or
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17:22 Sep 06, 2013
Jkt 229001
principal office, in the case of a
corporation) or, in the case of a trust, the
principal address at which the firearm
is located;
(2) Except as provided in paragraph
(c) of this section, attach to the
application—
(i) Documentation evidencing the
existence and validity of the entity,
which includes complete and
unredacted copies of partnership
agreements, articles of incorporation,
corporate registration, declarations of
trust with any trust schedules,
attachments, exhibits, and enclosures;
(ii) A completed ATF Form 5320.23
for each responsible person. Form
5320.23 requires certain identifying
information, including each responsible
person’s full name, position, social
security number (optional), home
address, date and place of birth, and
country of citizenship;
(iii) In the space provided on Form
5320.23, a photograph of each
responsible person 2 x 2 inches in size,
clearly showing a full front view of the
features of the responsible person with
head bare, with the distance from the
top of the head to the point of the chin
approximately 11⁄4 inches, and which
shall have been taken within 1 year
prior to the date of the application;
(iv) Two properly completed FBI
Forms FD–258 (Fingerprint Card) for
each responsible person. The
fingerprints must be clear for accurate
classification and should be taken by
someone properly equipped to take
them; and
(v) In the space provided on Form
5320.23, a certificate completed by the
local chief of police, sheriff of the
county, head of the state police, state or
local district attorney or prosecutor, or
such other person whose certificate may
in a particular case be acceptable to the
Director, for the jurisdiction in which
the responsible person resides. The
certificate shall state that the certifying
official is satisfied that the fingerprints
and photograph accompanying the form
are those of the responsible person and
that the certifying official has no
information indicating that possession
of the firearm by the responsible person
would be in violation of state or local
law.
(c) If the applicant entity has had an
application approved as a maker or
transferee within the preceding 24
months, and there has been no change
to the documentation previously
provided, the entity may provide a
certification that the information has not
been changed since the prior approval
and shall identify the application for
which the documentation had been
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Fmt 4702
Sfmt 4702
55027
submitted by form number, serial
number, and date approved.
■ 5. Revise § 479.84 to read as follows:
§ 479.84
Application to transfer.
(a) General. Except as otherwise
provided in this subpart, no firearm may
be transferred in the United States
unless an application, Form 4 (5320.4),
Application for Tax Paid Transfer and
Registration of Firearm, in duplicate,
executed under the penalties of perjury,
to transfer the firearm and register it to
the transferee has been filed with and
approved by the Director. The
application shall be filed by the
transferor. If the transferee is not a
licensed manufacturer, importer, or
dealer qualified under this part and is
a partnership, company (including a
Limited Liability Company (LLC)),
association, trust, or corporation, all
information on the Form 4 application
shall be furnished for each responsible
person of the transferee.
(b) Preparation of ATF Form 4. All of
the information called for on Form 4
shall be provided, including:
(1) The type of firearm being
transferred. If the firearm is other than
one classified as ‘‘any other weapon,’’
the applicant shall submit a remittance
in the amount of $200 with the
application in accordance with the
instructions on the form. If the firearm
is classified as ‘‘any other weapon,’’ the
applicant shall submit a remittance in
the amount of $5;
(2) The identity of the transferor by
name and address and, if the transferor
is other than a natural person, the title
or legal status of the person executing
the application in relation to the
transferor;
(3) The transferor’s Federal firearms
license number (if any);
(4) The transferor’s special
(occupational) tax stamp (if any);
(5) The identity of the transferee by
name and address and, if the transferee
is a person not qualified as a
manufacturer, importer, or dealer under
this part, the transferee shall be further
identified in the manner prescribed in
§ 479.85;
(6) The transferee’s Federal firearms
license number (if any);
(7) The transferee’s special
(occupational) tax stamp (if any); and
(8) A description of the firearm to be
transferred by name and address of the
manufacturer or importer (if known);
caliber, gauge, or size; model; serial
number; in the case of a short-barreled
shotgun or a short-barreled rifle, the
length of the barrel; in the case of a
weapon made from a rifle or shotgun,
the overall length of the weapon and the
length of the barrel; and any other
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Federal Register / Vol. 78, No. 174 / Monday, September 9, 2013 / Proposed Rules
identifying marks on the firearm. In the
event the firearm does not bear a serial
number, the applicant shall obtain a
serial number from ATF and shall stamp
(impress) or otherwise conspicuously
place such serial number on the firearm
in a manner not susceptible of being
readily obliterated, altered, or removed.
(9) If the applicant (including, if other
than an individual, any responsible
person) is an alien admitted under a
nonimmigrant visa, applicable
documentation demonstrating that the
nonimmigrant alien falls within an
exception to 18 U.S.C. 922(g)(5)(B)
under 18 U.S.C. 922(y)(2) or has
obtained a waiver of that provision
under 18 U.S.C. 922(y)(3).
(c) Approval of Form 4. If the
application is approved, the Director
will affix a National Firearms Act stamp
to the original application in the space
provided therefor and properly cancel
the stamp (see § 479.87). The approved
application will then be returned to the
transferor.
■ 6. Revise § 479.85 to read as follows:
tkelley on DSK3SPTVN1PROD with PROPOSALS
§ 479.85
Identification of transferee.
(a) If the transferee is an individual,
such person shall:
(1) Securely attach to each copy of the
Form 4, in the space provided on the
form, a photograph of the applicant 2 x
2 inches in size, clearly showing a full
front view of the features of the
applicant with head bare, with the
distance from the top of the head to the
point of the chin approximately 11⁄4
inches, and which shall have been taken
within 1 year prior to the date of the
application;
(2) Attach to the application two
properly completed FBI Forms FD–258
(Fingerprint Card). The fingerprints
must be clear for accurate classification
and should be taken by someone
properly equipped to take them; and
(3) Have a certificate completed on
each copy of the Form 4 by the local
chief of police, sheriff of the county,
head of the state police, state or local
district attorney or prosecutor, or such
other person whose certificate may in a
particular case be acceptable to the
Director, for the jurisdiction in which
the individual resides. The certificate
shall state that the certifying official is
satisfied that the fingerprints and
photograph accompanying the
application are those of the applicant
and that the certifying official has no
information indicating that receipt or
possession of the firearm by the
transferee would be in violation of state
or local law.
(b) If the transferee is not a licensed
manufacturer, importer, or dealer
qualified under this part and is a
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17:22 Sep 06, 2013
Jkt 229001
partnership, company, association,
trust, or corporation, such person shall:
(1) Be identified on the Form 4 by the
name and exact location of the place of
business, including the name and
number of the building and street, and
the name of the county in which the
business is located or, in the case of a
trust, the address where the firearm is
located. In the case of two or more
locations, the address shown shall be
the principal place of business (or
principal office, in the case of a
corporation) or, in the case of a trust, the
principal address at which the firearm
is located;
(2) Except as provided in paragraph
(c) of this section, attach to the
application—
(i) Documentation evidencing the
existence and validity of the entity,
which includes complete and
unredacted copies of partnership
agreements, articles of incorporation,
corporate registration, declarations of
trust with any trust schedules,
attachments, exhibits, and enclosures;
(ii) A completed ATF Form 5320.23
for each responsible person. Form
5320.23 requires certain identifying
information, including the responsible
person’s full name, position, social
security number (optional), home
address, date and place of birth, and
country of citizenship;
(iii) In the space provided on Form
5320.23, a photograph of each
responsible person 2 x 2 inches in size,
clearly showing a full front view of the
features of the responsible person with
head bare, with the distance from the
top of the head to the point of the chin
approximately 11⁄4 inches, and which
shall have been taken within 1 year
prior to the date of the application;
(iv) Two properly completed FBI
Forms FD–258 (Fingerprint Card) for
each responsible person. The
fingerprints must be clear for accurate
classification and should be taken by
someone properly equipped to take
them; and
(v) In the space provided on Form
5320.23, a certificate completed by the
local chief of police, sheriff of the
county, head of the state police, state or
local district attorney or prosecutor, or
such other person whose certificate may
in a particular case be acceptable to the
Director, for the jurisdiction in which
the responsible person resides. The
certificate shall state that the certifying
official is satisfied that the fingerprints
and photograph accompanying the form
are those of the responsible person and
that the certifying official has no
information indicating that receipt or
possession of the firearm by the
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Fmt 4702
Sfmt 4702
transferee would be in violation of state
or local law.
(c) If the applicant entity has had an
application approved as a maker or
transferee within the preceding 24
months, and there has been no change
to the documentation previously
provided, the entity may provide a
certification that the information has not
been changed since the prior approval
and shall identify the application for
which the documentation had been
submitted by form number, serial
number, and date approved.
■ 7. Revise § 479.90 to read as follows:
§ 479.90
Estates.
(a) The executor, administrator,
personal representative, or other person
authorized under state law to dispose of
property in an estate (collectively
‘‘executor’’) may possess a firearm
registered to a decedent during the term
of probate without such possession
being treated as a ‘‘transfer’’ as defined
in § 479.11. No later than the close of
probate, the executor must submit an
application to transfer the firearm to
beneficiaries or other transferees in
accordance with this section. If the
transfer is to a beneficiary, the executor
shall file an ATF Form 5 (5320.5),
Application for Tax Exempt Transfer
and Registration of Firearm, to register
a firearm to any beneficiary of an estate
in accordance with § 479.90. The
executor will identify the estate as the
transferor, and will sign the form on
behalf of the decedent, showing his or
her title and the date of filing. The
executor must also provide the
documentation prescribed in paragraph
(c) of this section.
(b) If there are no beneficiaries of the
estate or the beneficiaries do not wish
to possess the registered firearm, the
executor will dispose of the property
outside the estate (i.e., to a nonbeneficiary). The executor shall file an
ATF Form 4 (5320.4), Application for
Tax Paid Transfer and Registration of
Firearm, in accordance with § 479.84.
The executor, administrator, personal
representative, or other authorized
person must also provide
documentation prescribed in paragraph
(c) of this section.
(c) The executor, administrator,
personal representative, or other person
authorized under state law to dispose of
property in an estate shall submit with
the transfer application documentation
of his or her appointment as executor,
administrator, personal representative,
or as an authorized person, a copy of the
decedent’s death certificate, a copy of
the will (if any), any other evidence of
his or her authority to dispose of
property, and any other document
E:\FR\FM\09SEP1.SGM
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Federal Register / Vol. 78, No. 174 / Monday, September 9, 2013 / Proposed Rules
relating to, or affecting the disposition
of firearms from the estate.
Dated: August 29, 2013.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2013–21661 Filed 9–6–13; 8:45 am]
BILLING CODE 4410–FY–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52
[EPA–R06–OAR–2010–0333; FRL–9900–83–
Region 6]
Approval and Promulgation of
Implementation; Texas; Houston:
Reasonable Further Progress Plan,
Contingency Measures, and
Transportation Conformity Budgets for
the 1997 8-Hour Severe Ozone
Nonattainment Area
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The EPA is proposing to
approve revisions to the Texas State
Implementation Plan to the emissions
inventory (EI), the reasonable further
progress (RFP) plan and contingency
measures, the vehicle miles traveled
(VMT) offset analysis, and
transportation conformity motor vehicle
emissions budgets associated with the
reasonable further progress portion of
these revisions. The EPA is proposing to
approve these revisions because they
satisfy the EI, the RFP, the VMT offset,
and transportation conformity
requirements for areas classified as
severe nonattainment for the 1997 8hour ozone national ambient air quality
standard and demonstrate further
progress in reducing ozone precursors.
DATES: Comments must be received on
or before October 9, 2013.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R06–
OAR–2010–0333, by one of the
following methods:
• Federal Rulemaking Portal: https://
www.regulations.gov. Follow the on-line
instructions for submitting comments.
• U.S. EPA Region 6 ‘‘Contact Us’’
Web site: https://epa.gov/region6/
r6coment.htm. Please click on ‘‘6PD’’
(Multimedia) and select ‘‘Air’’ before
submitting comments.
• Email: Mr. Guy Donaldson at
donaldson.guy@epa.gov. Please also
send a copy by email to the person
listed in the FOR FURTHER INFORMATION
CONTACT section below.
tkelley on DSK3SPTVN1PROD with PROPOSALS
SUMMARY:
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17:22 Sep 06, 2013
Jkt 229001
• Fax: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD–L), at fax
number 214–665–7263.
• Mail: Mr. Guy Donaldson, Chief,
Air Planning Section (6PD–L),
Environmental Protection Agency, 1445
Ross Avenue, Suite 1200, Dallas, Texas
75202–2733.
• Hand or Courier Delivery: Mr. Guy
Donaldson, Chief, Air Planning Section
(6PD–L), Environmental Protection
Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202–2733. Such
deliveries are accepted only between the
hours of 8:00 a.m. and 4:00 p.m.
weekdays except for legal holidays.
Special arrangements should be made
for deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R06–OAR–2010–
0333. The EPA’s policy is that all
comments received will be included in
the public docket without change and
may be made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit through
www.regulations.gov or email,
information that you consider to be CBI
or otherwise protected. The
www.regulations.gov Web site is an
‘‘anonymous access’’ system, which
means the EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an email
comment directly to EPA without going
through www.regulations.gov, your
email address will be automatically
captured and included as part of the
comment that is placed in the public
docket and made available on the
Internet. If you submit an electronic
comment, the EPA recommends that
you include your name and other
contact information in the body of your
comment and with any disk or CD–ROM
you submit. If the EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
the EPA may not be able to consider
your comment. Electronic files should
avoid the use of special characters, any
form of encryption, and be free of any
defects or viruses. For additional
information about the EPA’s public
docket visit the EPA Docket Center
homepage at https://www.epa.gov/
epahome/dockets.htm.
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
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Sfmt 4702
55029
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the Air Planning Section (6PD–L),
Environmental Protection Agency, 1445
Ross Avenue, Suite 700, Dallas, Texas
75202–2733. The file will be made
available by appointment for public
inspection in the Region 6 FOIA Review
Room between the hours of 8:30 a.m.
and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in
the FOR FURTHER INFORMATION CONTACT
paragraph below to make an
appointment. If possible, please make
the appointment at least two working
days in advance of your visit. There will
be a fee of 15 cents per page for making
photocopies of documents. On the day
of the visit, please check in at the EPA
Region 6 reception area at 1445 Ross
Avenue, Suite 700, Dallas, Texas.
The State submittal, which is part of
the EPA record, is also available for
public inspection at the State Air
Agency listed below during official
business hours by appointment: Texas
Commission on Environmental Quality,
Office of Air Quality, 12124 Park 35
Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Ms.
Sandra Rennie, Air Planning Section
(6PD–L), Environmental Protection
Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202–2733,
telephone (214) 665–7367; fax number
(214) 665–7263; email address
rennie.sandra@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ means EPA.
Table of Contents
I. What action is EPA proposing?
II. What is the background for this action?
III. What is EPA’s evaluation of the revisions?
A. Base Year Emissions Inventory
B. Adjusted Base Year Inventory and 2008
RFP Target Levels
C. Projected Inventories and Determination
of RFP
D. Control Measures and Emission
Reductions for RFP
E. Contingency Measures
F. Vehicle Miles Traveled Offset Analysis
G. Transportation Conformity Budgets
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. What action is EPA proposing?
The EPA is proposing to approve a
revision to the Texas State
Implementation Plan (SIP) for the
Houston-Galveston-Brazoria (HGB)
ozone nonattainment area submitted by
the Texas Commission on
Environmental Quality on April 1, 2010,
E:\FR\FM\09SEP1.SGM
09SEP1
Agencies
[Federal Register Volume 78, Number 174 (Monday, September 9, 2013)]
[Proposed Rules]
[Pages 55014-55029]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-21661]
[[Page 55014]]
=======================================================================
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 479
[Docket No. ATF 41P; AG Order No. 3398-2013]
RIN 1140-AA43
Machine Guns, Destructive Devices and Certain Other Firearms;
Background Checks for Responsible Persons of a Corporation, Trust or
Other Legal Entity With Respect To Making or Transferring a Firearm
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF),
Department of Justice.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Justice proposes amending Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF) regulations that concern the
making or transferring of a firearm under the National Firearms Act
(NFA). The proposed changes include: Defining the term ``responsible
person,'' as used in reference to a trust, partnership, association,
company, or corporation; requiring ``responsible persons'' of such
legal entities to submit, inter alia, photographs and fingerprints, as
well as a law enforcement certificate, when the legal entity files an
application to make an NFA firearm or is listed as the transferee on an
application to transfer an NFA firearm; modifying the information
required in a law enforcement certificate, so that the certificate no
longer requires a statement from the certifying official that he or she
has no information indicating that the maker or transferee of the NFA
firearm will use the firearm for other than lawful purposes; and adding
a new section to ATF's regulations to address the possession and
transfer of firearms registered to a decedent. The new section would
clarify that the executor, administrator, personal representative, or
other person authorized under state law to dispose of property in an
estate may possess a firearm registered to a decedent during the term
of probate without such possession being treated as a ``transfer''
under the NFA. It also would specify that the transfer of the firearm
to any beneficiary of the estate may be made on a tax-exempt basis.
DATES: Written comments must be postmarked and electronic comments must
be submitted on or before December 9, 2013. Commenters should be aware
that the electronic Federal Docket Management System will not accept
comments after 11:59 p.m. Eastern Time on the last day of the comment
period.
ADDRESSES: You may submit comments, identified by docket number (ATF
41P), by any of the following methods--
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: (202) 648-9741.
Mail: Brenda Raffath Friend, Mailstop 6N-602, 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; ATTN: ATF 41P.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received will be
posted without change to the Federal eRulemaking portal, https://www.regulations.gov, including any personal information provided. For
detailed instructions on submitting comments and additional information
on the rulemaking process, see the ``Public Participation'' heading of
the SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Brenda Raffath Friend, 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
The Attorney General is responsible for enforcing the provisions of
the NFA, 26 U.S.C. Chapter 53.\1\ The Attorney General has delegated
that responsibility to the Director of ATF, subject to the direction of
the Attorney General and the Deputy Attorney General. 28 CFR 0.130(a).
Regulations implementing the provisions of the NFA are set forth in 27
CFR part 479, which contains the procedural and substantive
requirements relating to the importation, making, exportation,
transfer, taxing, identification, registration of, and the dealing in,
machine guns, destructive devices, and certain other firearms.
---------------------------------------------------------------------------
\1\ Provisions of the NFA discussed below refer to the
``Secretary'' rather than the ``Attorney General''; however, the
relevant functions of the Secretary of the Treasury have been
transferred to the Department of Justice, under the general
authority of the Attorney General. 28 U.S.C. 599A(c)(1). For ease of
reference, we will substitute ``Attorney General'' for ``Secretary''
when discussing these statutes.
---------------------------------------------------------------------------
A. Application To Make a Firearm
Section 5822 of the NFA, 26 U.S.C. 5822, provides that no person
shall make a firearm unless the person has: (I) Filed with the Attorney
General a written application, in duplicate, to make and register the
firearm; (II) paid any tax payable on the making, and evidenced such
payment by affixing the proper stamp to the original application form;
(III) identified the firearm to be made in the application form, in
such manner as prescribed by regulation; (IV) identified themself in
the application form, in such manner as prescribed by regulation,
except that, if such person is an individual, the identification must
include the individual's fingerprints and photograph; and (V) obtained
the approval of the Attorney General to make and register the firearm
and shows such approval on the application form. Applications shall be
denied if the making or possession of the firearm would place the
person making the firearm in violation of law. For purposes of title
26, United States Code, the term ``person'' means ``an individual, a
trust, estate, partnership, association, company or corporation.'' 26
U.S.C. 7701(a)(1).
Regulations implementing section 5822 are set forth in 27 CFR part
479, subpart E. Section 479.62 provides, in pertinent part, that no
person may make a firearm unless the person has filed with the Director
a written application on ATF Form 1 (5320.1), Application to Make and
Register a Firearm, in duplicate, and has received the approval of the
Director to make the firearm. Approval of the application will
effectuate registration of the firearm to the applicant. The
application must identify the firearm to be made by serial number and
other specified markings and information. In addition, the applicant
must be identified on the form by name and address and, if other than a
natural person (e.g., a corporation or trust), by the name and address
of the principal officer or authorized representative of the entity, as
well as the employer identification number of the entity. If an
individual, the identification must also include certain information
prescribed in Sec. 479.63.
Section 479.63 states that if the applicant is an individual, a
photograph of the applicant, approximately 2 x 2 inches and taken
within 1 year prior to the date of the application, must be affixed to
the indicated space on each copy of the Form 1. The regulation also
provides that a completed Federal Bureau of Investigation (FBI) Form
FD-
[[Page 55015]]
258 (Fingerprint Card), containing the fingerprints of the applicant,
must be submitted in duplicate with the application.
In addition, section 479.63 provides that the law enforcement
certificate located on Form 1 must be completed and signed by the local
chief of police or county sheriff, the head of the state police, the
state or local district attorney or prosecutor, or such other person
whose certificate may be acceptable to the Director. The certifying
official must state, inter alia, that he or she has no information
indicating that possession of the firearm by the maker would be in
violation of state or local law or that the maker will use the firearm
for other than lawful purposes. The certifying official must have
jurisdiction over the area within which the maker resides. The purpose
of this requirement is to ensure that the official will have access to
criminal records concerning the maker, and knowledge of the state and
local laws governing the transfer, receipt, and possession of the
firearm by the maker.
Under the current regulations, the requirements for fingerprints,
photographs, and law enforcement certificate specified in Sec. 479.63
are not applicable to an applicant who is not an individual, e.g., a
corporation or other legal entity.
Section 479.64 sets forth the procedure for approval of an
application to make a firearm. As specified, the Form 1 application
must be forwarded, in duplicate, by the maker of the firearm to the
Director, in accordance with the instructions on the form. If the
application is approved, the Director will return the original to the
maker of the firearm and retain the duplicate. Upon receipt of the
approved application, the maker is authorized to make the firearm
described therein. The maker of the firearm may not, under any
circumstances, make the firearm until the application has been
forwarded to the Director and has been approved and returned by the
Director with the NFA stamp affixed. If the application is disapproved,
the original Form 1 and the remittance submitted by the applicant for
the purchase of the stamp will be returned to the applicant with the
reason for disapproval stated on the form.
B. Application for Transfer of a Firearm
Section 5812(a) of the NFA, 26 U.S.C. 5812(a), provides that a
firearm may not be transferred unless: (I) The transferor of the
firearm has filed with the Attorney General a written application, in
duplicate, for the transfer and registration of the firearm to the
transferee, using the prescribed application form; (II) any tax payable
on the transfer is paid as evidenced by the proper stamp affixed to the
original application form; (III) the transferee is identified in the
application form, in such manner as the Attorney General may prescribe
by regulation, except that, if such person is an individual, the
identification must include the individual's fingerprints and
photograph; (IV) the transferor of the firearm is identified in the
application form, in such manner as the Attorney General may prescribe
by regulation; (V) the firearm is identified in the application form,
in such manner as the Attorney General may prescribe by regulation; and
(VI) the application form shows that the Attorney General has approved
the transfer and the registration of the firearm to the transferee.
Applications shall be denied if the transfer, receipt, or possession of
the firearm would place the transferee in violation of law. Section
5812(b) provides that the transferee may not take possession of the
firearm unless the Attorney General has approved the transfer and
registration of the firearm to the transferee.
Regulations implementing section 5812 are set forth in 27 CFR part
479, subpart F. In general, Sec. 479.84 provides that no firearm may
be transferred in the United States unless an application, ATF Form 4
(5320.4), Application for Tax Paid Transfer and Registration of
Firearm, has been filed in duplicate with, and approved by, the
Director. Form 4 must be filed by the transferor and must identify the
firearm to be transferred by type, serial number, and other specified
markings and information. The application must identify the transferor
by name and address and must include the transferor's Federal firearms
license and special (occupational) tax stamp, if any. If the transferor
is other than a natural person, the title or status of the person
executing the application must be provided. The application must
identify the transferee by name and address and, if the transferee is a
natural person not qualified as a manufacturer, importer, or dealer
under part 479, the person must be further identified in the manner
prescribed in Sec. 479.85.
Section 479.85 states that if the transferee is an individual, such
person must securely attach to each copy of the Form 4, in the space
provided on the form, a 2 x 2 inch photograph of the transferee taken
within 1 year prior to the date of the application. The transferee must
also attach to the application two properly completed FBI Forms FD-258
(Fingerprint Card). In addition, a certificate by the local chief of
police, county sheriff, head of the state police, state or local
district attorney or prosecutor, or such other person whose certificate
may in a particular case be acceptable to the Director, must be
completed on each copy of the Form 4. The certifying official must
state, inter alia, that he or she has no information indicating that
the receipt or possession of the firearm would place the transferee in
violation of state or local law or that the transferee will use the
firearm for other than lawful purposes. The certifying official must
have jurisdiction over the area within which the transferee resides.
The purpose of this requirement is to ensure that the official will
have access to criminal records concerning the transferee, and
knowledge of the state and local laws governing the transfer, receipt,
and possession of the firearm by the transferee.
Under the current regulations, the requirements for fingerprints,
photographs, and law enforcement certificate specified in Sec. 479.85
apply only to natural persons not qualified as a manufacturer,
importer, or dealer under part 479; they do not apply to transferees
who are not natural persons, e.g., corporations or other legal
entities.
C. Transfer Tax Exemption Available
Section 5852(e) of the NFA, 26 U.S.C. 5852(e), provides that an
unserviceable firearm may be transferred as a curio or ornament without
payment of the transfer tax imposed by section 5811, under such
requirements as the Attorney General may by regulations prescribe.
Section 5853(a) of the NFA, 26 U.S.C. 5853(a), provides that a
firearm may be transferred without the payment of the transfer tax
imposed by section 5811 to any State, possession of the United States,
any political subdivision thereof, or any official police organization
of such a government entity engaged in criminal investigations.
Regulations implementing sections 5852(e) and 5853(a) are set forth
in 27 CFR 479.90 and 479.91. These sections provide, in pertinent part,
that the exemption from the transfer tax for the transfer of an
unserviceable firearm as a curio or ornament or for a transfer to or
from certain government entities may be obtained by the transferor of
the firearm by filing with the Director an application, ATF Form 5
(5320.5), Application for Tax Exempt Transfer and Registration of
Firearm, in duplicate. The application must: (I) Show the name and
address of the transferor and of the transferee; (II) identify the
Federal firearms license and special (occupational) tax stamp, if any,
[[Page 55016]]
of the transferor and of the transferee; (III) show the name and
address of the manufacturer and the importer of the firearm, if known;
(IV) show the type, model, overall length (if applicable), length of
barrel, caliber, gauge or size, serial number, and other marks of
identification of the firearm; and (V) contain a statement by the
transferor that the transferor is entitled to the exemption because
either the transferor or the transferee is a governmental entity coming
within the purview of Sec. 479.90(a) or the firearm is unserviceable
and is being transferred as a curio or ornament. In the case of the
transfer of a firearm by a governmental entity to a transferee who is a
natural person not qualified as a manufacturer, importer, or dealer
under part 479, the transferee must be further identified in the manner
prescribed in Sec. 479.85.
II. Petition
ATF received a petition for rulemaking, dated December 3, 2009,
filed on behalf of the National Firearms Act Trade and Collectors
Association (NFATCA). The petition requests amendments to Sec. Sec.
479.63 and 479.85, as well as to corresponding ATF Forms 1 and 4. The
requested amendments are discussed below.
A. Amendment of Sec. Sec. 479.63 and 479.85
As discussed above, the photograph, fingerprint card, and chief law
enforcement officer (CLEO) certificate requirements of Sec. Sec.
479.63 and 479.85 do not apply if the applicant or transferee is a
partnership, company, association, trust, or corporation. As such,
persons who possess, directly or indirectly, the power or authority to
receive, possess, ship, transport, deliver, transfer or otherwise
dispose of a firearm for, or on behalf of the entity are not subject to
these requirements, and ATF does not conduct a background check of
those individuals.
The NFATCA expressed concern that persons who are prohibited by law
from possessing or receiving firearms may acquire NFA firearms through
the establishment of a legal entity such as a corporation, trust, or
partnership. It contends that the number of applications to acquire NFA
firearms via a corporation, partnership, trust, or other legal entity
has increased significantly over the years. ATF has researched the
issue and has determined that the number of Forms 1, 4, and 5 involving
legal entities that are not Federal firearms licensees increased from
approximately 840 in 2000 to 12,600 in 2009 and to 40,700 in 2012.
There accordingly has been an increase in the number of individuals who
have access to NFA firearms but who have not undergone a background
check. The petitioner expressed concern that an NFA firearm could be
acquired by a prohibited person and used in a violent crime. Therefore,
for applications for a corporation, trust, partnership, or other legal
entity to make or receive an NFA firearm, the petitioner has requested
amendments to Sec. Sec. 479.63 and 479.85 to require photographs and
fingerprint cards for persons who are responsible for directing the
management and policies of the entity, so that a background check of
the individual may be conducted.
The Department of Justice agrees with the concerns underlying this
proposal, and believes that such persons should not be excluded from
background checks and other requirements of the regulations that seek
to ensure that prohibited persons do not gain access to NFA firearms.
ATF recently encountered a situation where an application for a
transfer of a silencer was denied because the transferee was determined
to be prohibited from possessing an NFA firearm. The transferor
subsequently applied to transfer the same silencer to a trust whose
name contained the same last name as the prior transferee. ATF reviewed
the trust documents and found that the prohibited person was a settlor
of the trust and, thus, would have access to the firearm. ATF denied
the transfer. However, if the trust name had been different from that
of the prior transferee, or if the transferor sought to transfer a
different firearm, ATF employees may not have realized that the prior
transferee was a settlor of the trust and so may have approved the
transfer.
B. Certification of Citizenship
When filing an ATF Form 1, 4, or 5, the applicant also must submit
ATF Form 5330.20, Certification of Compliance with 18 U.S.C.
922(g)(5)(B). Under section 922(g)(5)(B) of the Gun Control Act, 18
U.S.C. 922(g)(5)(B), it generally is unlawful for any alien admitted
under a nonimmigrant visa to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or
ammunition, or to receive any firearm or ammunition that has been
shipped or transported in interstate or foreign commerce. Section
922(y)(2) provides for certain exceptions. 18 U.S.C. 922(y)(2). If an
alien who was admitted under a nonimmigrant visa falls within one of
the specified exceptions, or has obtained a waiver from the Attorney
General under 18 U.S.C. 922(y)(3), appropriate documentation must be
provided on Form 5330.20.
The petitioner requests that the information required on Form
5330.20 be incorporated into the requirements of 27 CFR 479.63 and
479.85 and the corresponding forms. According to the petitioner,
``[e]limination of the ATF Form 5330.20 by adding a citizenship
statement to the transfer [and making] forms would reduce human effort
for both the public and ATF while reducing funds expenditures for
printing, copying, and handling the form.''
The Department supports the elimination of unnecessary forms and is
committed to reducing the paperwork burden for individuals and
businesses. Accordingly, the Department proposes amending 27 CFR 479.62
and 479.84 and the corresponding forms to incorporate information
currently required in Form 5330.20.
C. Revision of Instructions on Forms 1, 4, and 5
The NFATCA requests that the instructions on applications to make
or transfer a firearm be revised so that they are consistent with those
on ATF Form 7 (5310.12), Application for Federal Firearms License. The
petitioner appears to be referring to the instruction on Form 7
regarding the submission of photographs and fingerprint cards for
responsible persons, namely, in the case of a corporation, partnership,
or association, any individual possessing, directly or indirectly, the
power to direct or cause the direction of the management, policies, and
practices of the legal entity, insofar as they pertain to firearms. The
Department agrees that proposed changes to regulations will require
modifications to corresponding Forms 1, 4, and 5, including changes to
the instructions on the forms.
D. Law Enforcement Certificate
With respect to an application to make a firearm, 27 CFR 479.63
provides that if the applicant is an individual, a certificate of the
local chief of police, county sheriff, head of the state police, state
or local district attorney or prosecutor, or such other person whose
certificate may be acceptable to the Director, shall be completed on
each copy of the Form 1. The certificate must state, inter alia, that
the certifying official has no information indicating that possession
of the firearm by the maker would be in violation of state or local law
or that the maker will use the firearm for other than lawful purposes.
The law enforcement certificate requirement also applies with respect
to an application to transfer a firearm if the
[[Page 55017]]
transferee is an individual. 27 CFR 479.85.
The petitioner requests that the law enforcement certificate
requirement be eliminated and that ATF ``adopt a CLEO [chief law
enforcement officer] process that will include a full NICS [National
Instant Criminal Background Check System] check for principal officers
of a trust or corporation receiving such firearms for the trust or
corporation.'' The petitioner articulates several reasons in support of
its request. For example, it states that the lack of cooperation on the
part of many CLEOs in recent years has forced larger numbers of
individuals to acquire NFA firearms via a trust or corporate entity, so
as to avoid the need for a law enforcement certificate. The petitioner
also asserts that ATF no longer accepts the CLEO certificate as prima
facie verification of compliance with state and local law, and that the
certificate therefore does not alleviate the burden on ATF to verify
that receipt or possession of a NFA firearm would not place the
applicant or transferee in violation of state or local law.
Although ATF agrees in principle with some of petitioner's
assertions (for example, with the fact that ATF independently verifies
whether receipt or possession of a NFA firearm would place the
applicant or transferee in violation of state or local law), ATF does
not propose to eliminate the CLEO certificate requirement at this time.
Rather, ATF proposes extending the CLEO certificate requirement to
responsible persons of a legal entity. ATF also proposes amending the
language of the certificate to omit the requirement that the certifying
official state that he has no information that the applicant or
transferee will use the firearm for other than lawful purposes.
Sections 5812 and 5822 of the NFA, 26 U.S.C. 5812 and 5822, provide
that applications shall be denied if the transfer, making, receipt, or
possession of the firearm would place the applicant or transferee in
violation of law. When the law enforcement certificate requirement was
implemented in 1934, local law enforcement officials were generally
better situated than federal officials to determine whether the
transfer, making, receipt, or possession of the firearm would place the
applicant or transferee in violation of state or local law. There were
not at that time any readily accessible national automated databases,
such as the National Crime Information Center (NCIC), that could
facilitate instantaneous comprehensive nationwide criminal background
checks. Although federal officials would consult available criminal
history and criminal identification records, the assessment of whether
an applicant or transferee would use the firearm for other than lawful
purposes often was based on information in the possession of local
police. The CLEO certificate requirement thus was intended in part to
ensure that an individual's authority to make, receive, or possess an
NFA firearm was consistent with state and local law, and that the
background of the individual was assessed by those in the best position
to evaluate it.
In light of the NCIC's establishment in 1967 and additional
technological developments, ATF now has direct access to a number of
criminal history databases, a fact that puts it in a stronger position
than before to assess the criminal background of applicants and
transferees. ATF no longer relies exclusively on CLEO certificates to
assess whether the making, receipt, or possession of a firearm by an
applicant or transferee would violate state or local law or whether a
particular applicant or transferee has a record that would warrant
denying the application. ATF conducts its own background checks of
individuals applying to make and receive NFA firearms. In addition to
transmitting fingerprints to the FBI for a criminal history check, ATF
routinely queries the following databases and indexes:
National Crime Information Center
TECS (formerly named the Treasury Enforcement
Communication System)
National Law Enforcement Telecommunications System
Interstate Identification Index
National Instant Criminal Background Check System
Although access to these databases provides ATF with a fuller
picture of any individual than was possible in 1934, the available
information is not comprehensive in all cases. For a variety of
reasons, it is still the case that local law enforcement may have
access to more complete records. For example, according to a 2006
publication by the Department of Justice, not all state criminal
history records meet the standard for inclusion in the Interstate
Identification Index database (the national criminal history record
depository maintained by the FBI), and only 50 percent of arrest
records in the database have final dispositions.\2\ To ensure that
background checks for NFA firearms are as complete as possible, ATF
proposes to retain the CLEO certificate requirement for individuals,
and to expand the requirement to responsible persons of a legal entity.
---------------------------------------------------------------------------
\2\ U.S. Department of Justice, The Attorney General's Report on
Criminal History Background Checks, at 17 (June 2006), available at
https://www.justice.gov/olp/ag_bgchecks_report.pdf.
---------------------------------------------------------------------------
With respect to the law enforcement officer's statement in the CLEO
certificate that he or she has no information indicating that the
transferee will use the firearm described on the Form 4 for other than
lawful purposes, the petitioner states that ``[s]ome CLEOs express a
concern of perceived liability; that signing an NFA transfer
application will link them to any inappropriate use of the firearm.''
ATF agrees with the petitioner that state and local law enforcement
officials may be concerned with the language of the current law
enforcement certificate, a concern that also applies to Forms 1 and 5.
ATF has received numerous statements from chiefs of police, sheriffs,
and other CLEOs expressing discomfort with the portion of the
certificate that requires them to state that they have no information
to suggest that the individual will use the firearm for other than
lawful purposes. ATF is aware that officials in a number of
jurisdictions refuse to sign the certificate because of concern about
potential liability for an individual's intentional or accidental
misuse. Such refusals have resulted in litigation by some applicants
against ATF. See Lomont v. O'Neill, 285 F.3d 9 (D.C. Cir. 2002);
Westfall v. Miller, 77 F.3d 868 (5th Cir. 1996). While courts have
upheld the CLEO certificate requirement, ATF proposes to amend the
language of the regulations and the corresponding forms to address this
concern. Sections 479.63 and 479.85 will no longer require the
certificate to contain a statement regarding information about the use
of the firearm for other than lawful purposes. ATF requests comments on
the specific language proposed, and whether this change will address
the concerns raised by some CLEOs.
III. Proposed Rule
A. Amendment of Sec. 479.11
The Department proposes amending Sec. 479.11 to add a definition
for the term ``responsible person.'' The term would include specific
definitions in the case of a trust, partnership, association, company
(including a Limited Liability Company (LLC)), or corporation.
Depending on the context, the term includes any individual, including
any grantor, trustee, beneficiary, partner, member, officer, director,
board member, owner, shareholder, or manager, who possesses, directly
or indirectly, the power or authority under any trust instrument,
contract, agreement, article, certificate, bylaw, or
[[Page 55018]]
instrument, or under state law, to receive, possess, ship, transport,
deliver, transfer, or otherwise dispose of a firearm for, or on behalf
of, the entity.
To ensure that responsible persons, as so defined, are subject to
penalties under 26 U.S.C. 5871 for committing prohibited acts under the
NFA (as defined in 26 U.S.C. 5861) to the same extent as are the legal
entities with which they are associated, the Department also proposes
amending the definition of ``person'' in 27 CFR 479.11 to clarify that
a ``person'' is a partnership, company, association, trust, or
corporation, including each responsible person associated with such an
entity; an estate; or an individual.
Although the definition of ``person'' in section 479.11 includes
the word ``estate,'' ATF traditionally has treated estates differently
from business entities, and does not propose defining the term
``responsible person'' to include estates. Estates are temporary legal
entities created to dispose of property previously possessed by a
decedent. The term during which an estate exists typically is defined
by state law in the State in which the decedent resided. Conversely,
partnerships, trusts, associations, companies, and corporations are
formed for a specific purpose and remain in existence until action is
taken to dissolve them.
Historically, ATF has treated the transfer of an NFA-registered
firearm held by an estate differently from other transfers under the
NFA. ATF allows the registered firearm to be held by the executor,
administrator, personal representative, or other person authorized
under state law to dispose of property in an estate (executor) without
such possession being treated as a transfer under the NFA. Because the
executor holds the property temporarily, is representing the decedent,
and is bound by the limits of probate, ATF does not register the
firearm to the executor and allows the transfer from the estate of the
decedent directly to the beneficiaries, with the executor signing as
the transferor. The disposition of the firearm to the beneficiaries of
the estate is a ``transfer by operation of law,'' because it is an
involuntary transfer dictated by the terms of a will or by intestacy
laws in the State where the decedent resided. The transfer to the
beneficiaries of the estate is treated like any other transfer of
registered firearms, except that ATF allows such transfers to be made
on a tax-exempt basis when an ATF Form 5 is submitted and approved in
accordance with 27 CFR 479.90. The transfer of the firearm to persons
outside the estate requires the executor to file an ATF Form 4 and to
pay any transfer tax in accordance with Sec. 479.84.
B. Amendment of Sec. Sec. 479.62 and 479.63
With respect to an application to make a firearm, the Department
proposes several amendments to Sec. Sec. 479.62 (Application to make)
and 479.63 (Identification of applicant).
The proposed Sec. 479.62:
1. Provides that if the applicant is a partnership, company,
association, trust, or corporation, all information on the Form 1
application must be furnished for each responsible person of the
applicant;
2. Specifies that if the applicant is a partnership, company,
association, trust, or corporation, each responsible person must comply
with the identification requirements prescribed in Sec. 479.63(b); and
3. Requires the applicant (including, if other than an individual,
any responsible person), if an alien admitted under a nonimmigrant
visa, to provide applicable documentation demonstrating that he or she
falls within an exception to 18 U.S.C. 922(g)(5)(B) or has obtained a
waiver of that provision.
The proposed Sec. 479.63, where the applicant is an individual,
maintains the CLEO certificate but omits the requirement for a
statement about the use of a firearm for other than lawful purposes.
The certificate must state that the official is satisfied that the
fingerprints and photograph accompanying the application are those of
the applicant and that the official has no information indicating that
possession of the firearm by the maker would be in violation of state
or local law.
The CLEO's certification that he or she ``is satisfied that the
fingerprints and photograph accompanying the application are those of
the applicant,'' is an existing requirement. ATF intends to modify Form
1 to include certification to that effect by the CLEO for individuals
(which has always been a requirement but was not reflected on the
current form). As discussed below, ATF will include the same
certification on Form 5320.23 for responsible persons of a legal
entity.
The proposed Sec. 479.63, where the applicant is a partnership,
company, association, trust, or corporation:
1. Provides that the applicant must be identified on the Form 1
application by the name and exact location of the place of business,
including the name of the county in which the business is located or,
in the case of a trust, the address where the firearm is located. In
the case of two or more locations, the address shown must be the
principal place of business (or principal office, in the case of a
corporation) or, in the case of a trust, the principal address at which
the firearm is located;
2. Requires the applicant to attach to the application:
Documentation evidencing the existence and validity of the
entity, which includes, without limitation, complete and unredacted
copies of partnership agreements, articles of incorporation, corporate
registration, declarations of trust with any trust schedules,
attachments, exhibits, and enclosures; however, if the entity had an
application approved as a maker or transferee within the preceding 24
months, and there has been no change to the documentation previously
provided, the entity may provide a certification that the information
has not changed since the prior approval and must identify the
application for which the documentation had been submitted by form
number, serial number, and date approved;
A completed ATF Form 5320.23 for each responsible person.
Form 5320.23 would require certain identifying information for each
responsible person, including each responsible person's full name,
position, social security number (optional), home address, date and
place of birth, and country of citizenship;
In accordance with the instructions provided on Form
5320.23, a photograph of each responsible person 2 x 2 inches in size,
clearly showing a full front view of the features of the responsible
person with head bare, with the distance from the top of the head to
the point of the chin approximately 1\1/4\ inches, and which must have
been taken within 1 year prior to the date of the application;
Two properly completed FBI Forms FD-258 (Fingerprint Card)
for each responsible person. The fingerprints must be clear for
accurate classification and should be taken by someone properly
equipped to take them; and
In accordance with the instructions provided on Form
5320.23, a certificate for each responsible person completed by the
local chief of police, sheriff of the county, head of the state police,
state or local district attorney or prosecutor, or such other person
whose certificate may in a particular case be acceptable to the
Director. The certificate for each responsible person must be completed
by the CLEO who has jurisdiction in the area in which the responsible
person resides. The certificate must state that the official is
satisfied that the fingerprints and photograph accompanying the
application are those of the responsible person and that the certifying
official has no information
[[Page 55019]]
indicating that possession of the firearm by the responsible person
would be in violation of state or local law.
ATF seeks public comments regarding whether it is feasible to ask
CLEOs to certify that they are satisfied that the photographs and
fingerprints match those of the responsible person. For example, some
responsible persons may bring their fingerprint cards to the CLEO
office already stamped, and some legal entities may have the paperwork,
fingerprint cards, and photographs for each of their responsible
persons couriered to the CLEO office. In such instances, ATF seeks
comments on whether CLEOs will have enough information to certify that
they are satisfied that the photographs and fingerprints match those of
the responsible persons, or whether changes are needed to this
proposal.
C. Amendment of Sec. Sec. 479.84 and 479.85
With respect to an application to transfer a firearm, the
Department proposes several amendments to Sec. Sec. 479.84
(Application to transfer) and 479.85 (Identification of transferee).
The proposed Sec. 479.84:
1. Provides that the Form 4 application, in duplicate, must be
filed by the transferor. If the transferee is a partnership, company,
association, trust, or corporation, all information on the Form 4
application must be furnished for each responsible person of the
transferee; and
2. Provides that the type of firearm being transferred must be
noted on the Form 4. If the firearm is other than one classified as
``any other weapon,'' the applicant must submit a remittance in the
amount of $200 with the application in accordance with the instructions
on the form. If the firearm is classified as ``any other weapon,'' the
applicant must submit a remittance in the amount of $5.
The proposed Sec. 479.85, where the transferee is an individual,
maintains the certificate but omits the requirement for a statement
about the use of a firearm for other than lawful purposes. The
certificate must state that the official is satisfied that the
fingerprints and photograph accompanying the application are those of
the applicant and that the certifying official has no information
indicating that receipt or possession of the firearm by the transferee
would be in violation of state or local law.
The CLEO's certification that he or she ``is satisfied that the
fingerprints and photograph accompanying the application are those of
the applicant,'' is an existing requirement. ATF intends to modify
Forms 4 and 5 to include certification to that effect by the CLEO for
individuals (which has always been a requirement but was not reflected
on the current forms). As discussed below, ATF will include the same
certification on Form 5320.23 for responsible persons of a legal
entity.
The proposed Sec. 479.85, where the transferee is a partnership,
company, association, trust, or corporation:
1. Provides that the transferee must be identified on the Form 4
application by the name and exact location of the place of business,
including the name of the county in which the business is located or,
in the case of a trust, the address where the firearm is to be located.
In the case of two or more locations, the address shown must be the
principal place of business (or principal office, in the case of a
corporation) or, in the case of a trust, the principal address at which
the firearm is to be located;
2. Requires the transferee to attach to the application:
Documentation evidencing the existence and validity of the
entity, which includes, without limitation, complete and unredacted
copies of partnership agreements, articles of incorporation, corporate
registration, declarations of trust with any trust schedules,
attachments, exhibits, and enclosures; however, if the entity has had
an application approved as a maker or transferee within the preceding
24 months, and there has been no change to the documentation previously
provided, including the responsible person information, the entity may
provide a certification that the information has not changed since the
prior approval and must identify the application for which the
documentation had been submitted by form number, serial number, and
date approved;
A completed ATF Form 5320.23 for each responsible person.
Form 5320.23 would require certain identifying information, including
the responsible person's full name, position, social security number
(optional), home address, date and place of birth, and country of
citizenship;
In accordance with the instructions provided on Form
5320.23, a photograph of each responsible person 2 x 2 inches in size,
clearly showing a full front view of the features of the responsible
person with head bare, with the distance from the top of the head to
the point of the chin approximately 1\1/4\ inches, and which must have
been taken within 1 year prior to the date of the application;
Two properly completed FBI Forms FD-258 (Fingerprint Card)
for each responsible person. The fingerprints must be clear for
accurate classification and should be taken by someone properly
equipped to take them; and
In accordance with the instructions provided on Form
5320.23, a certificate for each responsible person completed by the
local chief of police, sheriff of the county, head of the state police,
state or local district attorney or prosecutor, or such other person
whose certificate may in a particular case be acceptable to the
Director. The certificate for each responsible person must be completed
by the CLEO who has jurisdiction in the area in which the responsible
person resides. The certificate must state that the official is
satisfied that the fingerprints and photograph accompanying the
application are those of the responsible person and that the certifying
official has no information indicating that receipt or possession of
the firearm by the responsible person would be in violation of state or
local law.
ATF seeks public comments regarding whether it is feasible to ask
CLEOs to certify that they are satisfied that the photographs and
fingerprints match those of the responsible person. For example, some
responsible persons may bring their fingerprint cards to the CLEO
office already stamped, and some legal entities may have the paperwork,
fingerprint cards, and photographs for each of their responsible
persons couriered to the CLEO office. In such instances, ATF seeks
comments on whether CLEOs will have enough information to certify that
they are satisfied that the photographs and fingerprints match those of
the responsible persons, or whether changes are needed to this
proposal.
D. Amendment of Sec. 479.90
Section 5853(a) of the NFA, 26 U.S.C. 5853(a), provides that a
firearm may be transferred to any State, possession of the United
States, any political subdivision thereof, or any official police
organization of such a government entity engaged in criminal
investigations, without the payment of the transfer tax. Regulations
implementing section 5853(a) are set forth in 27 CFR 479.90. That
section provides, in pertinent part, that the transfer tax exemption
may be obtained by the transferor of the firearm by filing with the
Director an application on ATF Form 5 (5320.5), Application for Tax
Exempt Transfer and Registration of Firearm, in duplicate. The
application must provide certain information, including the name and
address of the transferor and the transferee. In the case of a transfer
of a firearm by a governmental entity to a transferee who is a natural
person not qualified as a
[[Page 55020]]
manufacturer, importer, or dealer under part 479, the transferee must
be further identified in the manner prescribed in Sec. 479.85.
The Department proposes amending Sec. 479.90(b) to remove the word
``natural.'' Removing the word ``natural'' leaves the term ``person,''
which would be defined in Sec. 479.11 to include a partnership,
company, association, trust, or corporation (including each responsible
person of such entity), an estate, or an individual. This change would
mean that in the case of a transfer of a firearm by a governmental
entity to a transferee that is a partnership, company, association,
trust, or corporation, and that is not qualified as a manufacturer,
importer, or dealer under part 479, each responsible person of the
transferee would be subject to the requirements prescribed in Sec.
479.85.
E. Addition of Sec. 479.90a, Estates
The Department proposes adding a new section to part 479 to address
the possession and transfer of firearms registered to a decedent. The
new section would specify that the executor, administrator, personal
representative, or other person authorized under state law to dispose
of property in an estate (collectively ``executor'') may lawfully
possess the decedent's NFA firearm during the term of probate without
such possession being treated as a transfer from the decedent. The new
section also would clarify that the executor may transfer firearms held
by the estate on a tax-free basis when the transfer is to a beneficiary
of the estate; when the transfer is to persons outside the estate, the
executor must pay the appropriate transfer tax.
F. Transfer of Unserviceable Firearm
Section 479.91 provides that an unserviceable firearm, defined in
Sec. 479.11 as a firearm which is incapable of discharging a shot by
means of an explosive and incapable of being readily restored to a
firing condition, may be transferred as a curio or ornament without
payment of the transfer tax. This section also provides that the
procedures set forth in Sec. 479.90 must be followed for the transfer
of an unserviceable firearm, with the exception that a statement must
be entered on the application that the transferor is entitled to the
exemption because the firearm is unserviceable and is being transferred
as a curio or ornament. This section will remain unchanged. It
references the procedures in Sec. 479.90, which itself references
Sec. 479.85, which would be amended by the proposals herein.
G. Miscellaneous
ATF recognizes that the composition of the responsible persons
associated with a trust, partnership, association, company, or
corporation may change, and is considering a requirement that new
responsible persons submit Form 5320.23 within 30 days of the change.
ATF seeks comments on this option and solicits recommendations for
other approaches.
IV. Statutory and Executive Order Review
A. Executive Order 12866 and 13563--Regulatory Review
This proposed rule has been drafted in accordance with section 1(b)
of Executive Order 12866 (``Regulatory Planning and Review'') and with
section 1(b) of Executive Order 13563 (``Improving Regulation and
Regulatory Review''). The Department of Justice has determined that
this proposed rule is a significant regulatory action under section
3(f) of Executive Order 12866, and accordingly this proposed rule has
been reviewed by the Office of Management and Budget (OMB).
The proposed rule complies with the public participation
requirements of Executive Order 13563. As this rulemaking is in
response to a petition for rulemaking, ATF seeks the views of those who
are likely to be affected by the proposed rule (including those who are
likely to benefit and those who are potentially subject to the proposed
rule) prior to issuing the final rule.
This proposed rule will not have an annual effect on the economy of
$100 million or more; nor will it adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or state, local, or tribal
governments or communities. Accordingly, this proposed rule is not an
economically significant rulemaking as defined by Executive Order
12866. The estimated costs and benefits of the proposed rule are
discussed below.
1. Summary of Costs and Benefits
This proposed rule would require certain legal entities (trusts,
partnerships, companies, associations, and corporations) applying to
make or receive an NFA firearm to submit information for each of its
responsible persons to ATF in order for ATF to ensure such persons are
not prohibited from possessing NFA firearms. ATF estimates a total cost
of $14.9 million annually for: (1) Legal entities to gather, procure,
and submit such information to ATF; (2) ATF to process the information
and conduct a background check on responsible persons; and (3) local
and state agencies possibly to review the information provided on Form
5320.23 which is submitted as part of a Form 1, 4, or 5 application,
conduct their own background checks, and determine whether to complete
the certificate. These proposed provisions will have public safety
benefits in that they will enable ATF to ensure that the responsible
persons within legal entities that request to make or receive NFA
firearms are not prohibited from possessing such firearms under
federal, state, or local law.
2. Costs and Benefits of Ensuring Responsible Persons Within Legal
Entities are Not Prohibited From Possessing NFA Firearms
ATF estimated the cost of the proposed provisions to ensure
responsible persons within legal entities are not prohibited from
possessing NFA firearms by: (1) Estimating the time and other resources
that would be expended by legal entities to complete paperwork, obtain
photographs and fingerprints, receive CLEO certificates, and send this
information to ATF; (2) estimating the time and other resources that
would be expended by ATF to process and review the materials provided
by the legal entities and to conduct background checks of responsible
persons; and (3) estimating costs for state and local agencies in the
event they review the information provided, conduct their own
background checks; and determine whether to complete the CLEO
certificate.
ATF estimated the cost of the time for legal entities to complete
these tasks using employee compensation data for September 2012 as
determined by the U.S. Department of Labor, Bureau of Labor Statistics
(BLS). See https://www.bls.gov/news.release/archives/ecec_12112012.pdf.
The BLS determined the hourly compensation (which includes wages,
salaries, and benefits) for civilian workers to be $30.80. In addition,
ATF estimates that each legal entity has an average of two responsible
persons, an estimate that is based on ATF's review of 39 recent
randomly selected paper (hardcopy) applications for corporations, LLCs,
and trusts. ATF welcomes comments from the industry and other members
of the public regarding the accuracy of its assumptions and estimates.
In calendar year (CY) 2012, ATF received 84,435 applications that
were either ATF Forms 1, 4, or 5. Of these, 40,700 applications were
for unlicensed legal entities (e.g., corporations, companies, and
trusts) to make or receive an NFA firearm; 29,448 were for
[[Page 55021]]
individuals to make or receive an NFA firearm; and 14,287 were for
government agencies or qualified Federal firearms licensees (Gov/FFLs)
to make or receive an NFA firearm. The numbers of applications, by Form
and submitting individual or entity, are set forth below.
Table A--Numbers of Applications
----------------------------------------------------------------------------------------------------------------
CY 2012 Legal entity Individual Gov/FFL Total
----------------------------------------------------------------------------------------------------------------
Form 1.......................................... 5328 3758 576 9662
Form 4.......................................... 35237 25102 4746 65085
Form 5.......................................... 135 588 8965 9688
---------------------------------------------------------------
Total....................................... 40700 29448 14287 84435
----------------------------------------------------------------------------------------------------------------
Under the proposed rule, a legal entity would be required to
complete the following steps in addition to completing the applicable
Form 1, 4, or 5 before it is permitted to make or receive an NFA
firearm:
1. Complete and submit proposed Form 5320.23 for each responsible
person;
2. Submit fingerprints, photographs, and CLEO certificate for each
responsible person; and
3. Submit a copy of the documentation that establishes the legal
existence of the legal entity.
In addition, under the proposed rule, information required on the
existing ATF Form 5330.20 would be incorporated into the ATF Forms 1,
4, and 5.
Cost to Legal Entities
Cost of Completion of a Responsible Person Form
The proposed rule would require legal entities to complete and
submit to ATF a new form (Form 5320.23), photographs, fingerprint
cards, and a CLEO certificate for each responsible person before the
legal entity is permitted to make or receive an NFA firearm. The
information required on Form 5320.23 would include the responsible
person's name, position, home address, social security number
(optional), date and place of birth, and country of citizenship. The
identifying information for each responsible person is necessary in
order for ATF, and possibly state and local law enforcement, to conduct
a background check on each individual to ensure the individual is not
prohibited from possessing an NFA firearm under federal, state, or
local law.
ATF estimates the time for each responsible person to complete Form
5320.23 to be 10 minutes. Based on an estimate of 2 responsible persons
per legal entity and 40,700 entities, the estimated annual cost of
proposed Form 5320.23 is $417,854 (10 minutes at $30.80 per hour x
40,700 x 2).
Cost of Photographs
ATF estimates that:
The cost of the photographs is $8.00 (cost based on the
average of the costs determined for seven large retailers); and
The time needed to procure photographs is 50 minutes.
Currently, only individuals must obtain and submit photographs to
ATF. Based on an estimate of 29,448 individuals, the current estimated
cost is $991,416. (Cost of Photographs = $8.00 x 29,448 = $235,584;
Cost to Procure Photographs = 50 minutes at $30.80 per hour x 29,448 =
$755,832). Under the proposed rule, costs for individuals would remain
the same, but legal entities would incur new costs. Each responsible
person of a legal entity would be required to obtain and submit
photographs. Based on an estimate of 2 responsible persons per entity
and 40,700 entities, the estimated cost for legal entities to obtain
and submit photographs is $2,740,467. (Cost of Photographs = $8.00 x
40,700 x 2 = $651,200; Cost to Procure Photographs = 50 minutes at
$30.80 per hour x 40,700 x 2 = $2,089,267).
Cost of Fingerprints
ATF has reviewed various fingerprinting services. At the present
time, ATF is only able to accept fingerprints on hard copy fingerprint
cards. Thus, the cost estimates are based on the submission of two
fingerprint hard copy cards for each responsible person.
The estimated cost of the fingerprints is $24.00 (cost
based on the average of the costs determined for seven fingerprint
services); and
The estimated time needed to procure the fingerprints is
60 minutes.
Currently, only individuals must obtain and submit fingerprints.
Based on an estimate of 29,448 individuals, the current estimated cost
is $1,613,750. (Cost of Fingerprints = $24.00 x 29,448 = $706,752; Cost
to Procure Fingerprints = 60 minutes at $30.80 per hour x 29,448 =
$906,998). Under the proposed rule, costs for individuals would remain
the same, but legal entities would incur new costs. Each responsible
person of a legal entity would be required to obtain and submit
fingerprints to ATF. Based on an estimate of 2 responsible persons per
entity and 40,700 entities, the estimated cost for legal entities to
obtain and submit fingerprints is $4,460,720. (Cost of Fingerprints =
$24.00 x 40,700 x 2 = $1,953,600; Cost to Procure Fingerprints = 60
minutes at $30.80 per hour x 40,700 x 2 = $2,507,120).
Costs for a Legal Entity To Obtain CLEO Certificate
ATF estimates that the time needed for a responsible person to
procure the CLEO certificate is 100 minutes (70 minutes travel time and
30 minutes review time with the CLEO). Based on an estimate of 2
responsible persons per legal entity and 40,700 entities, the estimated
cost for legal entities to obtain CLEO certificate is $4,178,533 (100
minutes at $30.80 per hour x 40,700 x 2).
Cost of Documents To Establish Existence of Legal Entity
A legal entity that is applying to make or receive an NFA firearm
must provide to ATF documentation evidencing the existence and validity
of the entity--e.g., copies of partnership agreements, articles of
incorporation, corporate registration, declarations of trust with any
trust schedules, attachments, exhibits, and enclosures. Currently,
legal entities may submit this documentation with their application
package, although they are not required to do so. Therefore, ATF will
treat the costs for documentation as new costs. ATF accepts, and will
continue to accept, photocopies of the documents without notarization.
ATF based the cost estimate by determining the average number of pages
in the corporate or trust documents for 50 recent randomly selected
paper (hardcopy) submissions, which was 15 pages.
ATF estimates that:
[[Page 55022]]
The cost of the copied documentation is $1.50 ($.10 per
page at 15 pages); and
The time needed to copy attachments is 5 minutes.
Assuming 40,700 entities would provide ATF this documentation each
year, the estimated annual cost to submit the documentation is
$165,513. (Cost of documentation = $1.50 x 40,700 = $61,050; Cost to
copy attachments = 5 minutes at $30.80 per hours x 40,700 = $104,463).
This cost is not dependent on the number of responsible persons
associated with a legal entity. ATF notes that the estimated cost is
likely to be lower if the entity already has filed the documents with
ATF as part of a recent making or transfer application and the
information previously provided has not changed. Under these
circumstances, the entity can certify to ATF that the documentation is
on file and is unchanged.
Cost of Completing and Mailing Form 1, 4, or 5
Currently, both individuals and legal entities must complete and
mail Form 1, 4, or 5. This proposed rule should not change the costs
associated with this process. Even if there are multiple responsible
persons associated with a legal entity, the legal entity still would be
completing and mailing one Form 1, 4, or 5.
The estimated costs to legal entities that are discussed above are
summarized in Tables B(1) and B(2). The total estimated new cost of the
proposals for legal entities to provide to ATF identification
information for each of its responsible persons is $11,963,087
annually.
Table B(1)--Cost Estimates of the Time To Comply With the Proposed Rule's Requirements
----------------------------------------------------------------------------------------------------------------
Estimated time Number of 2 Responsible
Process (minutes) entities persons
----------------------------------------------------------------------------------------------------------------
Completion of F 5320.23......................................... 10 40,700 $417,854
Procure Photographs............................................. 50 40,700 2,089,267
Procure Fingerprints............................................ 60 40,700 2,507,120
Obtain Certificate.............................................. 100 40,700 4,178,533
Copy Attachments................................................ 5 40,700 104,463
-----------------------------------------------
Total....................................................... .............. .............. 9,297,237
----------------------------------------------------------------------------------------------------------------
Table B(2)--Cost Estimates of Procuring Photographs, Fingerprints, and Documentation
----------------------------------------------------------------------------------------------------------------
Number of 2 Responsible
Process-related item Estimated cost entities persons
----------------------------------------------------------------------------------------------------------------
Photographs..................................................... $8.00 40,700 $651,200
Fingerprints.................................................... 24.00 40,700 1,953,600
Documentation of Legal Entity................................... 1.50 40,700 61,050
-----------------------------------------------
Total....................................................... .............. .............. 2,665,850
----------------------------------------------------------------------------------------------------------------
Cost to ATF
ATF incurs costs to process forms, fingerprint cards, photographs,
and to conduct and review background checks. Currently, ATF incurs
these costs for the 29,448 applications for individuals to make or
receive NFA firearms. Under the proposed rule, ATF would incur these
costs for applications for legal entities to make or receive NFA
firearms. ATF estimates that:
ATF's cost for FBI to process a set of fingerprints is
$14.50. (The cost is based on FBI's current fee, which is set by
statute on a cost recovery basis.)
The estimated cost for an examiner at ATF's NFA Branch to
conduct and review the results of a background check is $7.70 (15
minutes at $30.80 per hour); and
The estimated cost to print the new 5320.23 forms is $.01
per form.
Based on an estimate of 2 responsible persons per legal entity and
40,700 entities, the estimated cost for ATF to process forms,
fingerprint cards, photographs, and to conduct and review background
checks for applications for legal entities to make or receive firearms
is $1,807,894 annually. (Cost for processing fingerprints = $14.50 x
40,700 x 2 = $1,180,300; Cost for background checks = $7.70 x 40,700 x
2 = $626,780; Cost to print forms = $.01 x 40,700 x 2 = $814).
Table C--Costs to ATF Under Proposed Rule
----------------------------------------------------------------------------------------------------------------
Number of 2 Responsible
Process Estimated cost or time entities persons
----------------------------------------------------------------------------------------------------------------
ATF's costs for Processing Fingerprints....... $14.50.......................... 40,700 $1,180,300
Time Needed to Conduct and Review Background 15 minutes...................... 40,700 626,780
Check by ATF.
Cost of 5320.23 form.......................... .01............................. 40,700 814
-----------------------------------------------------------------
Total..................................... ................................ .............. 1,807,894
----------------------------------------------------------------------------------------------------------------
[[Page 55023]]
Cost to State and Local Agencies
The proposed requirement for each responsible person of a legal
entity to obtain a CLEO certificate may increase the cost to state and
local agencies as they may decide to review the information provided,
conduct their own background checks, and determine whether to complete
the certificate. Based on an estimate of 2 responsible persons per
legal entity and 40,700 entities, the estimated cost for state and
local agencies to determine whether to sign the CLEO certificate is
$1,253,560 (30 minutes of review time at $30.80 per hour x 40,700 x 2).
Table D--Costs to State and Local Agencies Under Proposed Rule
----------------------------------------------------------------------------------------------------------------
Number of 2 Responsible
Process Estimated time entities persons
----------------------------------------------------------------------------------------------------------------
Agency Costs to Review/Sign Certificate....... 30 minutes...................... 40,700 $1,263,560
-----------------------------------------------------------------
Total..................................... ................................ .............. 1,263,560
----------------------------------------------------------------------------------------------------------------
Benefits of Background Checks for Responsible Persons
Existing regulations do not require the identification of
responsible persons of a legal entity. Therefore, ATF lacks the
necessary information to perform a background check on a person who
meets this proposed rule's definition of ``responsible person'' to
determine if that person is prohibited from possessing an NFA firearm.
This proposed rule, if finalized, would provide important public safety
and security benefits by enabling ATF to identify and perform
background checks on such persons.
For example, there may be a number of responsible persons
associated with a corporation, LLC, or trust. As noted above, based on
a recent review of paper (hardcopy) applications for corporations,
LLCs, and trusts, ATF estimates that there are 2 responsible persons
associated with such legal entities. One or more of these persons could
be a prohibited person, e.g., a convicted felon. Currently, when an NFA
transfer application is approved, a corporate officer or trustee
arranges for the receipt of the firearm. If the seller is a Federal
firearms licensee, the officer or trustee must complete ATF Form 4473
(5300.9), Firearms Transaction Record. On the Form 4473, the officer or
trustee must answer questions which determine if the officer or trustee
is a prohibited person. If one of the officers or trustees is
prohibited, then one of the other officers or trustees may pick up the
firearm and complete the Form 4473. If the seller is not a licensee,
then no form is completed. Once the firearm is picked up by the officer
or trustee, then it becomes corporate or trust property and can be
possessed by any of the officers or trustees. In Texas, ATF became
aware of a situation in which the member of an LLC was an illegal
alien, living in the United States under an assumed name, and had a
felony warrant outstanding. At that time, the LLC had 19 firearms
registered to it and ATF lacked the necessary information to conduct
any background checks to determine whether the member was a prohibited
person. In Tennessee, as a result of information provided by a Federal
firearms licensee, ATF became aware of applications submitted to
transfer two NFA firearms to a trust in which one of the trustees was a
convicted felon. If there had been no referral, ATF would not have
known of the need to conduct any background checks for the trust
members to determine if any were prohibited persons. As a result, under
current regulations, prohibited persons can circumvent the statutory
prohibitions and receive and possess firearms. This proposed rule will
make the requirements for background checks the same for certain legal
entities as they are now for individuals.
3. Consolidation of Forms
The incorporation of the information required on ATF Form 5330.20
into the existing Forms 1, 4, and 5 will reduce the burden upon the
applicant or transferee by eliminating an additional form to be
completed and filed. The current estimated time to complete the form is
3 minutes. Because the information requested on the forms is the same,
any savings result from the applicant not having to attach a separate
form. ATF estimates the elimination of the form will reduce the
industry costs by $108,028 (70,148 transactions for both individuals
and legal entities x 3 minutes per form saved x $30.80 per hour) and
ATF's printing costs by $701 (70,148 forms x .01 cents per form) for a
total reduction in costs of $108,729.
4. Number of Legal Entities
ATF cannot estimate with reasonable precision what effect this
proposed rule will have on resources used for creating and maintaining
these entities. ATF seeks information from the public to measure this
effect, including how many fewer legal entities there may be (if any),
and how much it costs on average to create and maintain such entities.
B. Executive Order 13132
This proposed 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.
While there would be an increase in the paperwork filed with ATF
and an increase in the resources ATF devotes to processing that
paperwork, as well as a potential increase in the resources state and
local agencies may devote to processing CLEO certificates for
responsible persons of a legal entity, any impact on state and local
resources would be voluntary and expected to be minimal, and must be
balanced against the benefits of ATF being able to identify and conduct
background checks on such persons. Therefore, in accordance with
section 6 of Executive Order 13132 (``Federalism''), the Attorney
General has determined that this proposed regulation does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
C. Executive Order 12988
This proposed 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
The Regulatory Flexibility Act requires an agency to conduct a
regulatory flexibility analysis of any rule subject to notice and
comment rulemaking requirements unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. 5 U.S.C. 605(b). Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. 5 U.S.C. 601. The Attorney
[[Page 55024]]
General has reviewed this proposed rule and, by approving it, certifies
that this proposed rule will not have a significant economic impact on
a substantial number of small entities.
This proposed rule will primarily affect legal entities that are
seeking to make or acquire NFA firearms and are not making or acquiring
them as a qualified Federal firearms licensee. ATF believes that the
increased cost of implementing the proposed regulations will not be
significant on the entities. The estimated annual cost of implementing
the proposed regulations is $11,963,087 for identification costs for
legal entities. Accordingly, the estimated cost increase per entity is
$293.93 (Cost of increase / 40,700 entities).
E. Small Business Regulatory Enforcement Fairness Act of 1996
This proposed rule is not a major rule as defined by section 251 of
the Small Business Regulatory Enforcement Fairness Act of 1996. 5
U.S.C. 804. This proposed rule will not result in an annual effect on
the economy of $100 million or more; a major increase in costs or
prices; or significant adverse effects 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.
F. Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by state,
local, and tribal governments, in the aggregate, 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 deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
G. Paperwork Reduction Act
Under the Paperwork Reduction Act, a federal agency may not conduct
or sponsor, and a person is not required to respond to, a collection of
information unless it displays a valid control number assigned by OMB.
This proposed rule would revise several existing information
collections and create a new information collection. The existing
information collections that would be revised are in 27 CFR 479.62,
479.63, 479.84, 479.85, 479.90, 479.90a, and 479.91, which are
associated with ATF Forms 1, 4, and 5. Forms 1, 4, and 5 have been
approved by the OMB under control numbers 1140-0011, 1140-0014, and
1140-0015, respectively. The new information collection that would be
created is associated with ATF Form 5320.23. Form 5320.23 would require
certain identifying information for each responsible person within a
legal entity requesting to make or receive an NFA firearm, including
their full name, position, social security number (optional), home
address, date and place of birth, and country of citizenship. Form
5320.23 also would require a proper photograph of each responsible
person; two properly completed FBI Forms FD-258 (Fingerprint Card) for
each responsible person; and a law enforcement certificate.
ATF is submitting a request to revise currently approved OMB
control numbers 1140-0011, 1140-0014, and 1140-0015, and to obtain a
new OMB control number for ATF Form 5320.23 in accordance with 5 CFR
1320.11. ATF requests public comments on all aspects of these proposed
collections, including to:
Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
enhance the quality, utility, and clarity of the
information to be collected; and
minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
The estimated total annual burden hours and related information
(number of respondents, frequency of responses, costs, etc.) for the
proposed revisions to Forms 1, 4, and 5, as well as the new Form
5320.23, appear below.
For a recent submission of an information collection request to the
OMB regarding other changes to these forms, ATF performed an analysis
of the time it takes to fulfill the requirements of each form. ATF
found that the time varies among individuals, legal entities, and Gov/
FFLs. For example, ATF estimates that it takes four hours for an
individual to complete Form 1 due to the requirements to provide
fingerprints, photographs and a law enforcement certificate. ATF
estimates it takes less time for a Gov/FFL to complete Form 1 because
the application does not require the submission of these items. The
estimated submission times for individuals, legal entities, and Gov/
FFLs are:
230 minutes for submission by an individual (50 minutes to
procure photographs; 60 minutes to procure fingerprints, 100 minutes to
obtain certificate; and 20 minutes to complete and mail the form);
465 minutes for a submission by a legal entity (for two
responsible persons) (20 minutes to complete Form 5320.23; 100 minutes
to procure photographs; 120 minutes to procure fingerprints; 200
minutes to obtain CLEO certificate; 5 minutes to procure the
attachments; and 20 minutes to complete and mail the form); and
20 minutes (to complete and mail the form) for a
submission by a Gov/FFL.
With respect to ATF Form 1:
Estimated total annual reporting and/or recordkeeping burden:
55,890 hours (current estimated total annual reporting and/or
recordkeeping burden from OMB Information Collection Number 1140-0011:
4,284 hours). Note: 576 Gov/FFL responders will take 20 minutes (192
hours); 5,328 legal entity responders will take 465 minutes (41,292
hours); and 3,758 individual responders will take 230 minutes (14,406
hours). (The numbers of responders by type are estimated based on the
data in Table A.)
Estimated average burden hours per respondent and/or recordkeeper:
5.78 hours (current estimated average burden hours per respondent or
recordkeeper from OMB Information Collection Number 1140-0011: 4
hours).
Estimated number of respondents and/or recordkeepers: 9,662
(current estimated number of respondents and/or recordkeepers from OMB
Information Collection Number 1140-0011: 1,071).
Estimated annual frequency of responses: 1 (current estimated
annual frequency of responses from OMB Information Collection Number
1140-0011: 1).
Estimated total costs: $487,757.60.
$461,248 (fingerprints and photographs ($32 x 3,758 (individuals) =
$120,256; $32 x 10,656 (2 responsible persons) = $340,992))
$7,992 (copies of legal entity documents ($1.50 x 5,328))
$18,517.60 (mailing ($2 each for 9,086 respondents and $.60 for 576
respondents) (current estimated total costs from OMB Information
Collection Number 1140-0011: $471).
With respect to ATF Form 4:
Estimated total annual reporting and/or recordkeeping burden:
370,893 hours
[[Page 55025]]
(current estimated total annual reporting and/or recordkeeping burden
from OMB Information Collection Number 1140-0014: 44,260 hours). Note:
4,746 Gov/FFL respondents will take 20 minutes (1,582 hours), 35,237
legal entity respondents will take 465 minutes (273,087 hours), and
25,102 individual respondents will take 230 minutes (96,224 hours).
(The numbers of responders by type are estimated based on the data in
Table A.)
Estimated average burden hours per respondent and/or recordkeeper:
5.69 hours (current estimated average burden hours per respondent and/
or recordkeeper from OMB Information Collection Number 1140-0014: 4
hours).
Estimated number of respondents and/or recordkeepers: 65,085
(current estimated number of respondents and/or recordkeepers from OMB
Information Collection Number 1140-0014: 11,065).
Estimated annual frequency of responses: 1 (current estimated
annual frequency of responses from OMB Information Collection Number
1140-0014: 1).
Estimated total costs: $3,234,813.
$3,058,432 (fingerprints and photographs ($32 x 25,102 (individuals) =
$803,264; $32 x 70,474 (2 responsible persons) = $2,255,168))
$52,855.50 (copies of legal entity documents ($1.50 x 35,237))
$123,525.60 (mailing ($2 each for 60,339 respondents and $.60 for
4,746 respondents) (current estimated total costs from OMB Information
Collection Number 1140-0014: $4,536).
With respect to ATF Form 5:
Estimated total annual reporting and/or recordkeeping burden: 6,288
hours (current estimated total annual reporting and/or recordkeeping
burden from OMB Information Collection Number 1140-0015: 379,896
hours).\3\ Note: 8,965 Gov/FFL respondents will take 20 minutes (2,988
hours); 135 legal entity respondents will take 465 minutes (1,046
hours); and 588 individual respondents will take 230 minutes (2,254
hours). (The numbers of responders by type are estimated based on the
data in Table A.)
---------------------------------------------------------------------------
\3\ The large drop in burden hours from 379,896 to 6,288 is
attributable to a change in methodology. We no longer count each
item on a Form 5 as a separate response. The current burden hours
using the new methodology is 4,380 hours ((7,388 government agencies
or legal entities x 20 minutes and / 60) plus (500 individual
respondents x 230 minutes and / 60)).
---------------------------------------------------------------------------
Estimated average burden hours per respondent and/or recordkeeper:
.65 hours (current estimated average burden hours per respondent and/or
recordkeeper from OMB Information Collection Number 1140-0015: 4
hours).
Estimated number of respondents and/or recordkeepers: 9,688
(current estimated number of respondents and/or recordkeepers from OMB
Information Collection Number 1140-0015: 7,888).
Estimated annual frequency of responses: 1 (current estimated
annual frequency of responses from OMB Information Collection Number
1140-0015: 12).
Estimated total costs: $34,483.50.
$27,456 (fingerprints and photographs ($32 x 588 (individuals) =
$18,816; $32 x 270 (2 responsible persons) = $8,640))
$202.50 (copies of legal entity documents ($1.50 x 135))
$6,825 (mailing ($2 each for 723 respondents and $.60 for 8,965
respondents)) (current estimated total costs from OMB Information
Collection Number 1140-0015: $20,894).
With respect to ATF Form 5320.23:
Estimated total annual reporting and/or recordkeeping burden:
13,566.67 hours (based on 2 responsible persons).
Estimated average burden hours per respondent and/or recordkeeper:
.33 hours.
Estimated number of respondents and/or recordkeepers: 40,700.
Estimated annual frequency of responses: 1.
Estimated total costs: 0. (All the estimated costs are associated
with the submission package for Forms 1, 4, and 5.)
The current estimated costs provided above for Forms 1, 4, and 5
are being revised. Due to an administrative oversight, the initial
costs provided to OMB only reflected the costs associated with mailing
the completed forms to ATF. They did not include the costs associated
with certain information that must be included as part of the
application, e.g., fingerprint cards. ATF has provided OMB with the
adjusted cost estimates for these forms.
Public Participation
A. Comments Sought
ATF is requesting comments on the proposed rule from all interested
persons. ATF is also specifically requesting comments on the clarity of
this proposed rule and how it may be made easier to understand, as well
as comments on the costs or benefits of the proposed rule and on the
appropriate methodology and data for calculating those costs and
benefits.
All comments must reference the docket number (ATF 41P), be
legible, and include the commenter's name and complete mailing address.
ATF will treat all comments as originals and will not acknowledge
receipt of comments.
Comments received on or before the closing date will be carefully
considered. Comments received after that date will be given the same
consideration if it is practical to do so, but assurance of
consideration cannot be given except as to comments received on or
before the closing date.
B. Confidentiality
Comments, whether submitted electronically or on paper, will be
made available for public viewing at ATF, and on the Internet as part
of the eRulemaking initiative, and are subject to the Freedom of
Information Act. Commenters who do not want their name or other
personal identifying information posted on the Internet should submit
their comment by mail or facsimile, along with a separate cover sheet
that contains their personal identifying information. Both the cover
sheet and comment must reference this docket number (ATF 41P).
Information contained in the cover sheet will not be posted on the
Internet. Any personal identifying information that appears within the
comment will be posted on the Internet and will not be redacted by ATF.
Any material that the commenter considers to be inappropriate for
disclosure to the public should not be included in the comment. Any
person submitting a comment shall specifically designate that portion
(if any) of his comments that contains material that is confidential
under law (e.g., trade secrets, processes). Any portion of a comment
that is confidential under law shall be set forth on pages separate
from the balance of the comment and shall be prominently marked
``confidential'' at the top of each page. Confidential information will
be included in the rulemaking record but will not be disclosed to the
public. Any comments containing material that is not confidential under
law may be disclosed to the public. In any event, the name of the
person submitting a comment is not exempt from disclosure.
C. Submitting Comments
Comments may be submitted in any of three ways:
Mail: Send written comments to the address listed in the
ADDRESSES section of this document. Written comments must appear in
minimum 12 point font size (.17 inches), include your mailing address,
be signed, and may be of any length.
Facsimile: You may submit comments by facsimile
transmission to (202) 648-9741. Faxed comments must:
(1) Be legible and appear in minimum 12 point font size (.17
inches);
[[Page 55026]]
(2) Be on 8\1/2\'' x 11'' paper;
(3) Contain a legible, written signature; and
(4) Be no more than five pages long. ATF will not accept faxed
comments that exceed five pages.
Federal eRulemaking Portal: To submit comments to ATF via
the Federal eRulemaking portal, visit https://www.regulations.gov and
follow the instructions for submitting comments.
D. Request for Hearing
Any interested person who desires an opportunity to comment orally
at a public hearing should submit his or her request, in writing, to
the Director of ATF within the 90-day comment period. The Director,
however, reserves the right to determine, in light of all
circumstances, whether a public hearing is necessary.
Disclosure
Copies of this proposed rule and the comments received will be
available for public inspection through the Federal eGovernment portal,
https://www.regulations.gov, 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.
Drafting Information
The author of this document is Brenda Raffath Friend, Office of
Regulatory Affairs, Enforcement Programs and Services, Bureau of
Alcohol, Tobacco, Firearms, and Explosives.
List of Subjects in 27 CFR Part 479
Administrative practice and procedure, Arms and munitions,
Authority delegations, Customs duties and inspection, Exports, Imports,
Military personnel, Penalties, Reporting and recordkeeping
requirements, Research, Seizures and forfeitures, and Transportation.
Authority and Issuance
Accordingly, for the reasons discussed in the preamble, 27 CFR part
479 is proposed to be amended as follows:
PART 479--MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN OTHER
FIREARMS
0
1. The authority citation for 27 CFR part 479 is revised to read as
follows:
Authority: 26 U.S.C. 5812; 26 U.S.C. 5822; 26 U.S.C. 7805.
0
2. Amend Sec. 479.11, by revising the definition for ``Person'' and
adding a definition for the term ``Responsible person'' to read as
follows:
Sec. 479.11 Meaning of terms.
* * * * *
Person. A partnership, company, association, trust, corporation,
including each responsible person associated with such an entity; an
estate; or an individual.
* * * * *
Responsible person. (1) In the case of a trust, any individual,
including any grantor, trustee, or beneficiary, who possesses, directly
or indirectly, the power or authority under any trust instrument or
other document, or under state law, to receive, possess, ship,
transport, deliver, transfer, or otherwise dispose of a firearm for, or
on behalf of, the trust;
(2) In the case of a partnership, any individual, including any
partner or manager, who possesses, directly or indirectly, the power or
authority under any contract, agreement, article, certificate, bylaw,
or instrument, or under state law, to direct the management and
policies of the partnership to receive, possess, ship, transport,
deliver, transfer, or otherwise dispose of a firearm for, or on behalf
of, the partnership;
(3) In the case of an association, any individual, including any
member, officer, director, board member, owner, or manager, who
possesses, directly or indirectly, the power or authority under any
contract, agreement, article, certificate, bylaw, or instrument, or
under state law, to direct the management and policies of the
association to receive, possess, ship, transport, deliver, transfer, or
otherwise dispose of a firearm for, or on behalf of, the association;
(4) In the case of a company (including a Limited Liability Company
(LLC)), any individual, including any member, officer, director, board
member, owner, shareholder, or manager, who possesses, directly or
indirectly, the power or authority under any contract, agreement,
article, certificate, bylaw, or instrument, or under state law, to
direct the management and policies of the company to receive, possess,
ship, transport, deliver, transfer, or otherwise dispose of a firearm
for, or on behalf of, the company; and
(5) In the case of a corporation, any individual, including any
officer, director, board member, owner, shareholder, or manager, who
possesses, directly or indirectly, the power or authority under any
contract, agreement, article, certificate, bylaw, or instrument, or
under state law, to direct the management and policies of the
corporation to receive, possess, ship, transport, deliver, transfer, or
otherwise dispose of a firearm for, or on behalf of, the corporation.
* * * * *
0
3. Revise Sec. 479.62 to read as follows:
Sec. 479.62 Application to make.
(a) General. No person shall make a firearm unless the person has
filed with the Director a completed application on ATF Form 1 (5320.1),
Application to Make and Register a Firearm, in duplicate, executed
under the penalties of perjury, to make and register the firearm and
has received the approval of the Director to make the firearm, which
approval shall effectuate registration of the firearm to the applicant.
If the applicant is not a licensed manufacturer, importer, or dealer
qualified under this part and is a partnership, company (including a
Limited Liability Company (LLC)), association, trust, or corporation,
all information on the Form 1 application shall be furnished for each
responsible person of the applicant.
(b) Preparation of ATF Form 1. All of the information called for on
Form 1 shall be provided, including:
(1) The type of application, i.e., tax paid or tax exempt. If the
making of the firearm is taxable, the applicant shall submit a
remittance in the amount of $200 with the application in accordance
with the instructions on the form;
(2) The identity of the applicant. If an individual, the applicant
shall provide his or her name, address, and date and place of birth,
and also comply with the identification requirements prescribed in
Sec. 479.63(a). If other than an individual, the applicant shall
provide its name, address, and employer identification number, as well
as the name and address of each responsible person. Each responsible
person of the applicant also shall comply with the identification
requirements prescribed in Sec. 479.63(b);
(3) A description of the firearm to be made by type, caliber, gauge
or size, model, length of barrel, serial number, other marks of
identification, and the name and address of the original manufacturer
(if the applicant is not the original manufacturer);
(4) The applicant's Federal firearms license number (if any);
(5) The applicant's special (occupational) tax stamp (if
applicable); and
(6) If the applicant (including, if other than an individual, any
responsible person) is an alien admitted under a nonimmigrant visa,
applicable documentation demonstrating that the
[[Page 55027]]
nonimmigrant alien falls within an exception to 18 U.S.C. 922(g)(5)(B)
under 18 U.S.C. 922(y)(2) or has obtained a waiver of that provision
under 18 U.S.C. 922(y)(3).
(c) Approval of Form 1. If the application is approved, the
Director will affix a National Firearms Act stamp to the original
application in the space provided therefor and properly cancel the
stamp (see Sec. 479.67). The approved application will then be
returned to the applicant.
0
4. Revise Sec. 479.63 to read as follows:
Sec. 479.63 Identification of applicant.
(a) If the applicant is an individual, the applicant shall:
(1) Securely attach to each copy of the Form 1, in the space
provided on the form, a photograph of the applicant 2 x 2 inches in
size, clearly showing a full front view of the features of the
applicant with head bare, with the distance from the top of the head to
the point of the chin approximately 1\1/4\ inches, and which shall have
been taken within 1 year prior to the date of the application;
(2) Attach to the application two properly completed FBI Forms FD-
258 (Fingerprint Card). The fingerprints must be clear for accurate
classification and should be taken by someone properly equipped to take
them; and
(3) Have a certificate completed on each copy of the Form 1 by the
local chief of police, sheriff of the county, head of the state police,
state or local district attorney or prosecutor, or such other person
whose certificate may in a particular case be acceptable to the
Director, for the jurisdiction in which the individual resides. The
certificate shall state that the certifying official is satisfied that
the fingerprints and photograph accompanying the application are those
of the applicant and that the certifying official has no information
indicating that possession of the firearm by the maker would be in
violation of state or local law.
(b) If the applicant is not a licensed manufacturer, importer, or
dealer qualified under this part and is a partnership, company
(including a Limited Liability Company (LLC)), association, trust, or
corporation, the applicant shall:
(1) Be identified on the Form 1 by the name and exact location of
the place of business, including the name and number of the building
and street, and the name of the county in which the business is located
or, in the case of a trust, the address where the firearm is located.
In the case of two or more locations, the address shown shall be the
principal place of business (or principal office, in the case of a
corporation) or, in the case of a trust, the principal address at which
the firearm is located;
(2) Except as provided in paragraph (c) of this section, attach to
the application--
(i) Documentation evidencing the existence and validity of the
entity, which includes complete and unredacted copies of partnership
agreements, articles of incorporation, corporate registration,
declarations of trust with any trust schedules, attachments, exhibits,
and enclosures;
(ii) A completed ATF Form 5320.23 for each responsible person. Form
5320.23 requires certain identifying information, including each
responsible person's full name, position, social security number
(optional), home address, date and place of birth, and country of
citizenship;
(iii) In the space provided on Form 5320.23, a photograph of each
responsible person 2 x 2 inches in size, clearly showing a full front
view of the features of the responsible person with head bare, with the
distance from the top of the head to the point of the chin
approximately 1\1/4\ inches, and which shall have been taken within 1
year prior to the date of the application;
(iv) Two properly completed FBI Forms FD-258 (Fingerprint Card) for
each responsible person. The fingerprints must be clear for accurate
classification and should be taken by someone properly equipped to take
them; and
(v) In the space provided on Form 5320.23, a certificate completed
by the local chief of police, sheriff of the county, head of the state
police, state or local district attorney or prosecutor, or such other
person whose certificate may in a particular case be acceptable to the
Director, for the jurisdiction in which the responsible person resides.
The certificate shall state that the certifying official is satisfied
that the fingerprints and photograph accompanying the form are those of
the responsible person and that the certifying official has no
information indicating that possession of the firearm by the
responsible person would be in violation of state or local law.
(c) If the applicant entity has had an application approved as a
maker or transferee within the preceding 24 months, and there has been
no change to the documentation previously provided, the entity may
provide a certification that the information has not been changed since
the prior approval and shall identify the application for which the
documentation had been submitted by form number, serial number, and
date approved.
0
5. Revise Sec. 479.84 to read as follows:
Sec. 479.84 Application to transfer.
(a) General. Except as otherwise provided in this subpart, no
firearm may be transferred in the United States unless an application,
Form 4 (5320.4), Application for Tax Paid Transfer and Registration of
Firearm, in duplicate, executed under the penalties of perjury, to
transfer the firearm and register it to the transferee has been filed
with and approved by the Director. The application shall be filed by
the transferor. If the transferee is not a licensed manufacturer,
importer, or dealer qualified under this part and is a partnership,
company (including a Limited Liability Company (LLC)), association,
trust, or corporation, all information on the Form 4 application shall
be furnished for each responsible person of the transferee.
(b) Preparation of ATF Form 4. All of the information called for on
Form 4 shall be provided, including:
(1) The type of firearm being transferred. If the firearm is other
than one classified as ``any other weapon,'' the applicant shall submit
a remittance in the amount of $200 with the application in accordance
with the instructions on the form. If the firearm is classified as
``any other weapon,'' the applicant shall submit a remittance in the
amount of $5;
(2) The identity of the transferor by name and address and, if the
transferor is other than a natural person, the title or legal status of
the person executing the application in relation to the transferor;
(3) The transferor's Federal firearms license number (if any);
(4) The transferor's special (occupational) tax stamp (if any);
(5) The identity of the transferee by name and address and, if the
transferee is a person not qualified as a manufacturer, importer, or
dealer under this part, the transferee shall be further identified in
the manner prescribed in Sec. 479.85;
(6) The transferee's Federal firearms license number (if any);
(7) The transferee's special (occupational) tax stamp (if any); and
(8) A description of the firearm to be transferred by name and
address of the manufacturer or importer (if known); caliber, gauge, or
size; model; serial number; in the case of a short-barreled shotgun or
a short-barreled rifle, the length of the barrel; in the case of a
weapon made from a rifle or shotgun, the overall length of the weapon
and the length of the barrel; and any other
[[Page 55028]]
identifying marks on the firearm. In the event the firearm does not
bear a serial number, the applicant shall obtain a serial number from
ATF and shall stamp (impress) or otherwise conspicuously place such
serial number on the firearm in a manner not susceptible of being
readily obliterated, altered, or removed.
(9) If the applicant (including, if other than an individual, any
responsible person) is an alien admitted under a nonimmigrant visa,
applicable documentation demonstrating that the nonimmigrant alien
falls within an exception to 18 U.S.C. 922(g)(5)(B) under 18 U.S.C.
922(y)(2) or has obtained a waiver of that provision under 18 U.S.C.
922(y)(3).
(c) Approval of Form 4. If the application is approved, the
Director will affix a National Firearms Act stamp to the original
application in the space provided therefor and properly cancel the
stamp (see Sec. 479.87). The approved application will then be
returned to the transferor.
0
6. Revise Sec. 479.85 to read as follows:
Sec. 479.85 Identification of transferee.
(a) If the transferee is an individual, such person shall:
(1) Securely attach to each copy of the Form 4, in the space
provided on the form, a photograph of the applicant 2 x 2 inches in
size, clearly showing a full front view of the features of the
applicant with head bare, with the distance from the top of the head to
the point of the chin approximately 1\1/4\ inches, and which shall have
been taken within 1 year prior to the date of the application;
(2) Attach to the application two properly completed FBI Forms FD-
258 (Fingerprint Card). The fingerprints must be clear for accurate
classification and should be taken by someone properly equipped to take
them; and
(3) Have a certificate completed on each copy of the Form 4 by the
local chief of police, sheriff of the county, head of the state police,
state or local district attorney or prosecutor, or such other person
whose certificate may in a particular case be acceptable to the
Director, for the jurisdiction in which the individual resides. The
certificate shall state that the certifying official is satisfied that
the fingerprints and photograph accompanying the application are those
of the applicant and that the certifying official has no information
indicating that receipt or possession of the firearm by the transferee
would be in violation of state or local law.
(b) If the transferee is not a licensed manufacturer, importer, or
dealer qualified under this part and is a partnership, company,
association, trust, or corporation, such person shall:
(1) Be identified on the Form 4 by the name and exact location of
the place of business, including the name and number of the building
and street, and the name of the county in which the business is located
or, in the case of a trust, the address where the firearm is located.
In the case of two or more locations, the address shown shall be the
principal place of business (or principal office, in the case of a
corporation) or, in the case of a trust, the principal address at which
the firearm is located;
(2) Except as provided in paragraph (c) of this section, attach to
the application--
(i) Documentation evidencing the existence and validity of the
entity, which includes complete and unredacted copies of partnership
agreements, articles of incorporation, corporate registration,
declarations of trust with any trust schedules, attachments, exhibits,
and enclosures;
(ii) A completed ATF Form 5320.23 for each responsible person. Form
5320.23 requires certain identifying information, including the
responsible person's full name, position, social security number
(optional), home address, date and place of birth, and country of
citizenship;
(iii) In the space provided on Form 5320.23, a photograph of each
responsible person 2 x 2 inches in size, clearly showing a full front
view of the features of the responsible person with head bare, with the
distance from the top of the head to the point of the chin
approximately 1\1/4\ inches, and which shall have been taken within 1
year prior to the date of the application;
(iv) Two properly completed FBI Forms FD-258 (Fingerprint Card) for
each responsible person. The fingerprints must be clear for accurate
classification and should be taken by someone properly equipped to take
them; and
(v) In the space provided on Form 5320.23, a certificate completed
by the local chief of police, sheriff of the county, head of the state
police, state or local district attorney or prosecutor, or such other
person whose certificate may in a particular case be acceptable to the
Director, for the jurisdiction in which the responsible person resides.
The certificate shall state that the certifying official is satisfied
that the fingerprints and photograph accompanying the form are those of
the responsible person and that the certifying official has no
information indicating that receipt or possession of the firearm by the
transferee would be in violation of state or local law.
(c) If the applicant entity has had an application approved as a
maker or transferee within the preceding 24 months, and there has been
no change to the documentation previously provided, the entity may
provide a certification that the information has not been changed since
the prior approval and shall identify the application for which the
documentation had been submitted by form number, serial number, and
date approved.
0
7. Revise Sec. 479.90 to read as follows:
Sec. 479.90 Estates.
(a) The executor, administrator, personal representative, or other
person authorized under state law to dispose of property in an estate
(collectively ``executor'') may possess a firearm registered to a
decedent during the term of probate without such possession being
treated as a ``transfer'' as defined in Sec. 479.11. No later than the
close of probate, the executor must submit an application to transfer
the firearm to beneficiaries or other transferees in accordance with
this section. If the transfer is to a beneficiary, the executor shall
file an ATF Form 5 (5320.5), Application for Tax Exempt Transfer and
Registration of Firearm, to register a firearm to any beneficiary of an
estate in accordance with Sec. 479.90. The executor will identify the
estate as the transferor, and will sign the form on behalf of the
decedent, showing his or her title and the date of filing. The executor
must also provide the documentation prescribed in paragraph (c) of this
section.
(b) If there are no beneficiaries of the estate or the
beneficiaries do not wish to possess the registered firearm, the
executor will dispose of the property outside the estate (i.e., to a
non-beneficiary). The executor shall file an ATF Form 4 (5320.4),
Application for Tax Paid Transfer and Registration of Firearm, in
accordance with Sec. 479.84. The executor, administrator, personal
representative, or other authorized person must also provide
documentation prescribed in paragraph (c) of this section.
(c) The executor, administrator, personal representative, or other
person authorized under state law to dispose of property in an estate
shall submit with the transfer application documentation of his or her
appointment as executor, administrator, personal representative, or as
an authorized person, a copy of the decedent's death certificate, a
copy of the will (if any), any other evidence of his or her authority
to dispose of property, and any other document
[[Page 55029]]
relating to, or affecting the disposition of firearms from the estate.
Dated: August 29, 2013.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2013-21661 Filed 9-6-13; 8:45 am]
BILLING CODE 4410-FY-P