On April 26, 2022, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") published Final Rule 2021R-05F (the “Final Rule”) overhauling the definition of firearm “frame or receiver” and amending the marking requirements for firearms. ATF published the Final Rule almost a year after it released a Notice of Proposed Rulemaking (“NPRM”) (86 FR 27720 (May 21, 2021)). As we explained last year in our 2-part alert, this new rule will significantly change ATF's regulations implementing the Gun Control Act of 1968 (“GCA”), the National Firearms Act (“NFA”), and the import provisions of the Arms Export Control Act (“AECA”), and is the first major change to the definitions of “firearm” and “frame or receiver” since ATF first promulgated regulations implementing Title I of the GCA in 1968.
The Final Rule takes effect on August 24, 2022. To help you prepare for these changes, we are putting out a multi-part Alert highlighting key aspects of the Final Rule and recommended practices to adapt to the regulatory changes. To begin, this Part 1 will review the new definition of "frame or receiver." In Part 2 we will review the new definition of "Privately Made Firearm" and the related controls. Part 3 will examine the changes to the firearm marking and licensee recordkeeping requirements.
I. An Overview of the New Definition "Frame or Receiver"
The Final Rule creates a new § 478.12 to house the definition of “frame or receiver”. The structure of the definition is different from what ATF originally proposed in the NPRM because of the high number of comments expressing concern over the convoluted structure originally presented. The regulations implementing the National Firearms Act and the Arms Export Control Act, 27 C.F.R. Parts 479 and 447 respectively, will also be revised to cross-reference the new definition of "frame or receiver" in 27 C.F.R. § 478.12.
The definition includes several examples to illustrate the following: (1) grandfathered prior classifications; (2) which part of common firearm models is the frame or receiver; and (3) partially complete, disassembled, or nonfunctional frame or receiver that would be considered a frame or receiver because it can be readily completed, assembled, restored, or otherwise converted to a functional state.
A new term that will play an important role in firearm and frame or receiver classifications is "readily," which is added to §§ 478.11 and 479.11. "Readily" is part of the statutory definition of "firearm," which includes a weapon that will, is designed to, or may readily be converted to expel a projectile, and also the ‘‘frame’’ or ‘‘receiver’’ of any such weapon. 18 U.S.C. 921(a)(3)(A), (B). However, ATF has never defined the term until now. ATF first introduced "readily" in the NPRM and received many comments in opposition to the definition. Nevertheless, only minor changes have been made to the term in the Final Rule. "Readily" will play a very important role in determining whether a frame or receiver has been destroyed, and in classifications of partially complete, disassembled, or nonfunctional frames or receivers.
B. Single Housing or Structural Component
One of the key changes made to the definition of "frame or receiver" was to center the definition around only one housing or structural component for a given type of weapon. ATF made this change in response to comments, and it is a marked improvement over the NPRM, which referenced “any housing for any fire control component.”
The Final Rule also creates three distinct sub-definitions. One is for "frame," which applies to handguns and handgun variants. ‘‘Receiver’’ applies to rifles, shotguns, or projectile weapons other than handguns. The third sub-definition is for frame or receiver applicable to firearm mufflers and silencers.
C. Prior Classifications
To ensure that industry members and others can rely on ATF’s prior classifications, the Final Rule grandfathers most prior ATF classifications, and variants thereof, into the new definition of “frame or receiver.” The Final Rule also provides examples and diagrams of some of those weapons, such as the AR-15 rifle and Ruger Mark IV pistol.
CAUTION! ATF classifications of partially complete, disassembled, or nonfunctional frames or receivers as not falling within the definition of firearm “frame or receiver” prior to this rule ARE NOT GRANDFATHERED! Any such classifications, including parts kits, would need to be resubmitted for evaluation. The resubmission should include any associated templates, jigs, molds, equipment, tools, instructions, guides, or marketing materials that are sold, distributed, or possessed with the item or kit, or otherwise made available by the seller or distributor of the item or kit to the purchaser or recipient of the item or kit. ATF will take this into consideration when making the classification determination.
If persons remain unclear which specific portion of a weapon or device falls within the definitions of “frame” or “receiver,” then they may voluntarily submit a request to ATF Firearms Technology Industry Services Branch for a classification determination.
II. Working with the New Definition of "Frame or Receiver"
Despite the changes to the structure of “frame or receiver” in the Final Rule, the definition is dense and includes several paragraphs and subparagraphs. This style of regulatory structure can be challenging to work through, so we provide an order of review to help guide you through the new definition.
Rather than trying to swallow this definition whole (danger, choking hazard), we offer the following yes/no questions to determine which portion of the “frame or receiver” definition applies to your firearm or part. As you review these questions, we recommend having the complete new § 478.12 handy for cross-referencing purposes, especially because our approach does not follow the strict order of the definition in the hopes of creating a more digestible flow.
Question 1: Is your frame or receiver melted, crushed, shredded, or cut according to ATF-approved methods?
☐ NO - proceed to Question 2.
☐ YES - your item is “destroyed” and is not a controlled “frame” or “receiver” pursuant to § 478.12(e).
The term “destroyed” means the frame or receiver has been permanently altered such that it may not “readily” (see new definition in §§ 478.11 and 479.11) be completed, assembled, restored, or otherwise converted to function as a frame or receiver (defined in § 478.12(a)).
Destruction can be accomplished by completely melting, crushing, or shredding the frame or receiver, or torch cutting according to ATF specifications.
Question 2: Is your piece a blank or a disassembled, partially complete, or nonfunctional frame or receiver?
☐ NO - proceed to Question 3.
☐ YES - refer to § 478.12(c) to determine whether it is a controlled frame or receiver. If it is designed to or may "readily" be completed, assembled, restored, or otherwise converted to function as a frame or receiver, it is controlled as a frame or receiver (defined in § 478.12(a)).
"Readily” is a new defined term in § 478.11.
What is not considered a frame or receiver: forging, casting, printing, extrusion, unmachined body, or similar article that has not yet reached a stage of manufacture where it is clearly identifiable as an unfinished component part of a weapon, for example an unformed block of metal, liquid polymer, or other raw material.
§ 478.12(c) contains examples to show what could be considered a controlled frame or receiver compared to what may not rise to the level of control.
Prior ATF classification letters concerning partially complete, disassembled, or nonfunctional frames or receivers, including parts kits: If you have an ATF classification letter issued prior to April 26, 2022, ruling the partially complete, disassembled, or nonfunctional frame or receiver, including a parts kit, was not, or did not include, a firearm frame or receiver (either under the old § 478.11 or old § 479.11), this letter is no longer valid. If your business involves such items, whether it is importing, selling/transferring, or acquiring for use in further manufacturing and assembly operations, you should consider obtaining a new classification determination from ATF under the new rules. When issuing a classification, ATF may consider any associated templates, jigs, molds, equipment, tools, instructions, guides, or marketing materials that are sold, distributed, or possessed with the item or kit, or otherwise made available by the seller or distributor of the item or kit to the purchaser or recipient of the item or kit. See§ 478.12(f)(2).
Question 3: Did ATF issue a classification determination ruling on which part of the firearm is the controlled frame or receiver before April 22, 2022?
☐ NO - proceed to Question 4.
☐ YES - refer to § 478.12(f)(1). Such determination is grandfathered in and remains valid under the new definitions. These firearms are exempt from the new definitions and the marking requirements under the Final Rule.
This question is not for partially complete, disassembled or nonfunctional frames or receivers. For these items, refer to Question 2.
Any such part marked with an “importer’s or manufacturer’s serial number” (new definition added to § 478.11) is presumed to be the controlled frame or receiver of the weapon unless there is an official ATF determination or other reliable evidence showing that such part is not the frame or receiver.
Some examples of such prior determinations include: (i) AR-15/M-16 variant firearms; (ii) Ruger Mark IV pistol; (iii) Benelli 121 M1 shotgun; and (iv) Vickers/Maxim, Browning 1919, M2 and box-type machineguns and semiautomatic "variants" (defined in § 478.12(a)(3)).
Question 4: Is it a firearm muffler or silencer? Refer to § 478.11 for the definition of “firearm muffler or silencer.”
☐ NO - proceed to Question 5.
☐ YES - refer to § 478.12(b). For firearm mufflers and silencers, the frame and receiver is the part that provides housing or a structure for the primary internal component designed to reduce the sound of a projectile. The frame or receiver does not include a removable end cap of an outer tube or modular piece.
The Final Rule adds a new definition to § 478.11 for “complete muffler or silencer device” which is important for determining when and what to mark with the required identifying information. We will address this in more detail in Part 3 to our Alert.
ATF references baffles, baffling material, expansion chamber, or equivalent as the primary internal component designed to reduce the sound of a projectile.
For the part that provides housing or structure, ATF cites to an outer tube or modular piece.
If the firearm muffler or silencer is modular, the frame or receiver means the principal housing attached to the weapon that expels a projectile, even if an adapter or other attachments are required to connect the part to the weapon.
Question 5: Is it a “frame” (for handguns) or a “receiver” (for rifles,
shotguns, and other weapons that expel a projectile other than handguns) not captured by Questions 1-4 above? Refer to § 478.12(a) for the definitions of “frame” and “receiver”.
☐ "Frame" as defined in § 478.12(a)(1).
☐ "Receiver" as defined in § 478.12(a)(2).
☐ Item is a "multi-piece frame or receiver" not captured under 478.12(a). Refer to 478.12(d).
A "multi-piece frame or receiver" is defined as "a frame or receiver that may be disassembled into multiple modular subparts, i.e., standardized units that may be replaced or exchanged." It does not include an internal frame of a pistol that is a complete removable chassis that provides housing for the energized component, unless the chassis itself may be disassembled.
☐ None of the above. Item is not a "frame or receiver" under the new definition. If after performing this analysis doubt remains as to the proper classification, or which specific portion of a weapon or device falls within the definitions of “frame” or “receiver,” you may voluntarily submit a request to the ATF Firearms Technology Industry Services Branch for a classification determination.
"Variants" and "variants thereof" are defined in § 478.12(a)(3)).
§ 478.12(a)(4) lists several examples of common firearm models and "variants thereof" with illustrations showing which part is the frame or receiver under the new definition. The examples listed are: (i) hinged or single framed revolvers; (ii) hammer-fired semiautomatic pistols; (iii) Glock variant striker-fired semiautomatic pistols; (iv) Sig Sauer P250/P320 variant semiautomatic pistols (internal removable chassis; distinguished from a multi-piece frame unless the chassis can be disassembled); (v) bolt action rifles; (vi) break action, lever action, or pump action rifles and shotguns; (vii) AK variant firearms; (viii) Steyr AUG variant firearms; (ix) Thompson machineguns and semiautomatic variants, and L1A1, FN FAL, FN FNC, MP38, MP40, and SIG 550 firearms, and HK machineguns and semiautomatic variants; and (x) Sten, Sterling, and Kel-Tec SUB-2000 firearms.
This concludes Part 1 of our Alert on ATF's new definition for “frame or receiver”. Part 2 will address the impact of the Final Rule on “privately made firearms.”
ATF's New "Frame or Receiver" Rule
What You Should Know
-- Part 2 --
This is our second installment of a 3-part Alert covering the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) Final Rule 2021R-05F (the “Final Rule”) overhauling the definition of firearm “frame or receiver” and amending the marking requirements for firearms. The Final Rule was published on April 26, 2022 in Vol. 87 of the Federal Register, pp. 24652-24749, and is scheduled to go into effect on August 24, 2022.
In Part 1 of our Alert, we dove into the new definition of “Frame or Receiver” and provided a process for evaluating whether a firearm part is captured under the new definition. You can access Part 1 on the Reeves & Dola website.
In this second part we will review the Final Rule’s impact on firearms made by unlicensed persons, what is now termed “Privately Made Firearms” or “PMFs”. This aspect of the Final Rule has received a lot of attention and is the most controversial. Multiple lawsuits have been filed in different jurisdictions against the Department of Justice and the ATF to prevent the Final Rule from going into effect. In one case brought by Gun Owners of America, seventeen states have joined as Plaintiffs. We will update you should any of these cases delay implementation of the Final Rule.
In the meantime, we shall push forward with review of the Final Rule as it is better to be prepared. The regulatory citations in this Alert are all in Title 27 of the Code of Federal Regulations.
I. What is a Privately Made Firearm?
A. New Defined Term
The Final Rule creates a new term, “Privately Made Firearm” to be added to § 478.11 as follows:
“Privately made firearm (PMF). A firearm, including a frame or receiver, completed, assembled, or otherwise produced by a person other than a licensed manufacturer, and without a serial number placed by a licensed manufacturer at the time the firearm was produced. The term shall not include a firearm identified and registered in the National Firearms Registration and Transfer Record pursuant to chapter 53, title 26, United States Code, or any firearm manufactured or made before October 22, 1968 (unless remanufactured after that date).”
The Final Rule also amends the definitions in Part 447 (governing permanent imports of firearms and other defense articles) to cross reference this term.
B. Why ATF Created a New Term
Citing “technological advances,” ATF explains in the Final Rule that it is now easier for companies to sell firearm parts kits, standalone frame or receiver parts, and easy-to complete frames or receivers to unlicensed persons without maintaining any records or conducting a background check, even though such products enable individuals to “quickly and easily” make firearms. “Such privately made firearms (“PMFs”), when made for personal use, are not required by the GCA to have a serial number placed on the frame or receiver, making it difficult for law enforcement to determine where, by whom, or when they were manufactured, and to whom they were sold or otherwise transferred. Because of the difficulty with tracing illegally sold or distributed PMFs, those firearms are also commonly referred to as “ghost guns.”
However, the Final Rule does not prohibit individuals from making their own PMFs. Indeed, ATF acknowledges repeatedly that firearms privately made by non-prohibited persons solely for personal use generally do not come under the purview of the GCA.
“This rule does not restrict law abiding citizens’ ability to make their own firearms from parts for self-defense or other lawful purposes. Under this rule, non-prohibited persons may continue to lawfully complete, assemble, and transfer unmarked firearms without a license as long as they are not engaged in the business of manufacturing, importing, dealing in, or transacting curio or relic firearms in a manner requiring a license. Neither the GCA nor this implementing rule requires unlicensed individuals to mark (non-NFA) firearms they make for their personal use, or to transfer them to an FFL for marking. Such individuals who wish to produce, acquire, or transfer PMFs should, however, determine whether there are any applicable restrictions under State or local law.” Final Rule at 24686-24687 (internal citations omitted).
The way the Final Rule imposes control over PMFs is through Federal Firearms Licensees (“FFLs” or “licensees”) who accept a PMF into inventory. These licensees will be responsible for marking the PMF and entering it into their Acquisition and Disposition (“A&D”) records according to the requirements set forth in the Final Rule, which we explain below.
II. PMF Marking Requirements
A. What Triggers the Marking Requirement?
Under the Final Rule, unlicensed individuals are not required to mark their own PMFs for personal use or when they occasionally acquire them for a personal collection or sell or transfer them from a personal collection to unlicensed in-state residents consistent with federal, state, and local law. Only once a PMF is transferred to a licensee for any reason, including repair, and the licensee voluntarily accepts the PMF into its inventory, is that licensee required to mark the PMF in accordance with the requirements set forth in § 478.92. Citing to the GCA, 18 U.S.C. 923(g)(1)(A), (g)(2), ATF explains, “[t]he GCA provides that all firearms received and transferred by FFLs must be traceable through licensee records maintained for the period and in such form as prescribed by regulations. There is no exception for PMFs.” Final Rule at 24687.
The Final Rule does not obligate any licensee to receive a PMF into its inventory, so a licensee can choose to refuse the PMF. In addition, licensed dealer-gunsmiths, manufacturers, and importers who do same-day adjustments or repairs to a firearm do not have to mark the firearm or enter it into their A&D records if the firearm is returned to the same person from whom it was received, and it is not kept overnight. This distinction tracks ATF’s long-held policy for licensed gunsmiths performing on-the-spot repairs of commercially produced firearms (see ATF Rul. 77-1) and clarifies that this policy applies to licensed manufacturers and licensed importers, not just licensed dealers or gunsmiths.
National Firearms Act firearms identified and registered on the National Firearms Registration and Transfer Record pursuant to an ATF Form 1 (5320.1) Application to Make and Register a Firearm are not subject to the PMF marking requirements. Neither are firearms manufactured or made prior to October 22, 1968 (the effective date of the GCA) unless the firearm is remanufactured after that date.
B. What is the Required Format for a PMF Serial Number?
The Final Rule requires the serial numbers for PMFs be unique (not duplicate any other serial number placed by the licensee on any other firearm) and begin with the licensee’s abbreviated Federal firearms license number as a prefix to a unique identification number, followed by a hyphen. The abbreviated license number is the first three and last five digits, so an example would be:
12345678-[unique identification number]
There is no requirement for the private maker to be identified in the firearm markings or in the licensee’s records. As the serial number will contain the licensee’s abbreviated license number, the PMF would be traced to the licensee, not the private maker.
If a PMF is already marked with a unique identification number by the unlicensed private maker, the licensee may adopt the existing number if that identifying number meets the marking requirements of § 478.92 (for example, the number cannot be readily obliterated, altered, or removed, meets the size and depth requirements, and does not duplicate any of the licensee’s other firearms). However, the licensee must place their abbreviated license number as a prefix followed by a hyphen to the existing serial number, thus enabling the firearm to be traced to the licensee. This part of the rule will be codified in § 478.92(a)(4)(iii)(D).
For polymer frames or receivers, the PMF serial number can be placed on a metal plate permanently embedded into the polymer, or by another method approved in advance by ATF.
C. Who Can Mark the Firearms?
According to ATF, the intent of the Final Rule is not to require FFLs to obtain equipment to serialize PMFs. If a licensee is not capable of marking a PMF it will accept into inventory, the licensee can take the PMF to another FFL or to a non-licensed engraver for marking services. In the latter instance, the engraver would apply the markings under the licensee’s direct supervision and must not accept the PMF into inventory (i.e., the PMF must not be transferred to the non-licensed engraver).
The FFL may also require the unlicensed individual to serialize the PMF prior to accepting the PMF into the FFL's inventory. Unlicensed individuals can accomplish this by utilizing the marking services of licensed gunsmiths-dealers. To provide greater access to professional marking services, ATF revises the definition of “engaged in the business” as it pertains to gunsmiths to clarify that persons who engage in the business of identifying firearms for non-licensees may become licensed as dealer-gunsmiths solely to provide professional PMF marking services. They do not have to be licensed as manufacturers. As ATF explains, “allowing persons to be licensed as dealer-gunsmiths will make professional marking services more available to unlicensed individuals, and make it possible for other licensees to receive and transfer PMFs should they choose to accept them into inventory in the course of their licensed activities.” Final Rule at 24689.
D. How Soon Must an FFL Mark A PMF?
For PMFs acquired by licensees before August 24, 2022 (the effective date of the Final Rule), licensees must either mark the PMFs or cause them to be marked by another licensee either within 60 days from the effective date of a final rule (October 23, 2022), or before the date of final disposition (including to a personal collection), whichever is sooner. In these instances, the licensee may outsource the marking services to a licensed manufacturer or gunsmith. This will be codified at § 478.92(a)(4)(vi).
If a PMF is acquired on or after the effective date (August 24, 2022), § 478.92(a)(2) will require markings to be applied within seven (7) days following the date of receipt, including from a personal collection, or before disposition, including to a personal collection, whichever is sooner. In these instances, licensees may must either apply the markings themselves or cause the markings to be applied under their direct supervision, as described above.
III. PMF Recordkeeping Requirements
The Final Rule amends § 478.125(i) to require licensees to record the acquisition and disposition of a PMF. These requirements apply to licensed manufacturers, licensed importers, licensed dealers, and for personal firearms collections.
If the firearm is privately made in the United States and no manufacturer name has been identified on a PMF, the licensee who accepts the PMF into inventory must record the words “privately made firearm” or the abbreviation “PMF” as the name of the manufacturer. The name of the actual private maker is not required to be entered into the licensee’s records.
A licensee must record acquisition of a PMF into its records by close of the next business day following receipt of the PMF. However, the PMF serial number need not be immediately recorded if the firearm is being identified by the licensee or marked under the licensee’s direct supervision in accordance with § 478.92(a)(2). Remember, the licensee has 7 days to mark the PMF (or prior to disposition, whichever is sooner). Consequently, if the PMF is not marked at the time of receipt, the licensee should leave the serial number portion in the acquisition record blank until the PMF is properly marked. Once marked, the licensee must update the acquisition entry to show the new serial number.
If repairs are conducted within the same day (not overnight) and returned to the same person from whom received, the FFL does not have to record the PMF into its records.
If a PMF will be transferred to another non-licensee, “privately made firearm” or “PMF” must be recorded on the Form 4473 as the name of the manufacturer. §478.124(c)(4).
That does it for PMFs. Our final installment in this series will review the non-PMF marking and recordkeeping requirements and will include important information for licensed manufacturers and importers who will have to operate under these new rules starting next week.
ATF's New "Frame or Receiver" Rule
What You Should Know
-- Part 3 --
This is our final installment of the 3-part Alert covering the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) Final Rule 2021R-05F (the “Final Rule”) overhauling the definition of firearm “frame or receiver” and amending the marking requirements for firearms. The Final Rule was published on April 26, 2022, in Vol. 87 of the Federal Register, pp. 24652-2479, and is scheduled to go into effect in two days, on August 24, 2022.
In the first and second parts to this alert we reviewed the new definitions of “Frame or Receiver” and “Privately Made Firearm.” In this final installment, we examine the new marking and recordkeeping changes under the Final Rule ATF deems necessary to implement the new definitions. The regulatory citations in this Alert are all in Title 27 of the Code of Federal Regulations.
I. New Marking Requirements
A. Scope of the New Marking Requirements
One of the core elements of the Gun Control Act of 1968 (“GCA”) is the requirement imposed upon Federal Firearms License (“FFL”) manufacturers and importers to identify each firearm they manufacture or import with a unique serial number on the frame or receiver and any additional information in the manner prescribed by ATF. Historically, ATF regulations specified the serial number as the only marking required on the firearm frame or receiver. The other mandatory identifying information could be placed either on the frame/receiver or on the barrel or, if a pistol, the slide. This information included the firearm model, if designated, the caliber or gauge, the name and location (city and state) of the FFL manufacturer and, if applicable, the FFL importer, and the name and country of the foreign manufacturer, if applicable. These markings enable law enforcement to identify and trace firearms used in criminal activities through licensee records because the GCA and ATF regulations require each licensee to enter every firearm acquired and dispositioned using the identifying markings on the firearm.
The Final Rule revises ATF’s marking requirements in parts 478 and 479 to specify the frame or receiver be marked with not just the serial number but also the name of the FFL manufacturer or importer and the city and state of their place of business. The model, caliber or gauge, foreign manufacturer and country of manufacture may continue to be placed on the frame or receiver or the barrel or pistol slide.
However, the new marking requirements described in the Final Rule will apply only to frames or receivers with a “new design” manufactured on or after August 24, 2022. A “new design” means the design of the existing frame or receiver has been functionally modified or altered. A “new design” does not result from “a cosmetic process that adds to or changes decoration of the frame or receiver, such as painting or engraving. Also, adding or replacing stocks, barrels, or accessories to the frame or receiver is not considered a “new design.” See 87 FR 24743 (new §§ 478.92(a)(4)(v) and 479.102(b)(5)).
ATF has explained that almost all firearms classified before issuance of the Final Rule are grandfathered and may continue to be marked in the same manner as before the effective date. In other words, manufacturers will be able “to mark the same information on the same component defined as a “frame or receiver” as they did before the effective date of the rule, which includes the specific component of a weapon or device (and variants thereof) that ATF classified as the frame or receiver before the rule becomes effective.” 87 FR 24709. But note, this exception does not apply to Privately Made Firearms, the marking requirements for which we detail in Part 2 of this Alert series.
As for newly designed frames or receivers manufactured after August 22, 2024, the new marking requirements are described below.
B. New Frame/Receiver Markings - General
The Final Rule creates two alternative options for the frame/receiver markings, to be set forth in new §§ 478.92(a)(1)(i) and 479.102(a)(1):
Serial number plus the written-out name of the FFL manufacturer or importer and city/state of their business; OR
The FFL name plus the abbreviated FFL number (first three and last five digits of the license, no dashes) followed by a hyphen and the unique serial number assigned to the firearm. If using this option, this numbering scheme must be a print size of at least 1/16 inch. See new §§ 478.92(a)(1)(v) and 479.102(a)(5).
Important Notes on Manufacturer or Importer Name Markings: The FFL name markings on the frame must mirror exactly what is listed on the license, including corporate designations such as Inc. or LLC. To mark a firearm with an abbreviation or an acronym of the manufacturer or importer name, the licensee must add the abbreviation or acronym to its FFL as a trade name. This is done by the license holder submitting a request to the ATF Federal Firearms Licensing Center in Martinsburg, West Virginia.
In the Final Rule, ATF explains the reason for requiring all this information on the frame or receiver is that the associated licensee information, when marked on the slide or barrel as currently allowed, can be separated from the serialized frame or receiver in limited circumstances, rendering the firearm untraceable. A unique identification number, or traditional serial number, on the frame or receiver alone may not be sufficient because ATF may not know which licensee produced the firearm or the location where the traceable records are located. Manufacturers may, however, seek a marking variance from the Director if they find it difficult to transition to these marking requirements for new frame or receiver designs.
The Final Rule also adds a new definition for “importer’s or manufacturer’s serial number” to §478.11. The term includes the serial number and the full or abbreviated license number or licensee name, and location information placed on a frame or receiver. This new definition will ensure such markings are protected under 18 U.S.C. 922(k) and state laws, which prohibit possession of firearms with serial numbers that have been removed, obliterated, or altered.
C. Multi-Piece Frames and Receivers
The marking requirements for a “muti-piece frame or receiver” (new design) will be set forth in §§ 478.92(a)(1)(iii) and 479.102(a)(3). According to ATF, the Final Rule clarifies for licensees which portion of a multi-piece frame or receiver must be marked with the required markings. “These clarifications with respect to the markings of a multi-piece frame or receiver are necessary for the final rule; otherwise, multi-piece frames or receivers could be sold or distributed piecemeal in individual subparts and replaced by the end user without any traceable marks of identification.” 87 FR 24672.
The Final Rule requires the licensed manufacturer or importer mark each subpart of a multi-piece frame or receiver with the same serial number and associated licensee information so that the frame or receiver, once complete (assembled or unassembled), can be traced. The serial number identified on each subpart must be the same number so that the complete frame or receiver does not have a serial number duplicated on any other firearm produced by the manufacturer. Once the modular subparts are aggregated as a complete multi-piece frame or receiver, a modular subpart identified with the serial number cannot be removed and replaced unless the destruction procedure set forth in this rule is followed. See 87 FR 24705.
The term “multi-piece frame or receiver” is defined in new § 478.12 “frame or receiver”.
D. Firearm Mufflers or Silencers
The Final Rule will not significantly change they way industry currently marks firearm mufflers or silencers (for ease, we use the term “silencer” in this alert). Pursuant to the new § 478.12(b), the silencer frame or receiver is the part that provides housing or a structure for the primary internal component designed to reduce the sound of a projectile (i.e., baffles, baffling material, expansion chamber, or equivalent). In most cases, this will be the outer tube.
The Final Rule codifies an allowance (seeNFA Handbook, ATF ePublication 5320.8, sec. 7.4.6, p.46, sec. 9.5.1, p. 60) for a qualified manufacturer (possessing both a manufacturer’s FFL and Special (Occupational) Tax pursuant to 26 U.S.C. § 5801) to transfer a silencer part to another qualified manufacturer for purposes of further manufacture, assembly, or repair of complete devices. See 87 FR 24743 (new § 478.92(a)(4)(iv)(A)). ATF explains the Final Rule does not require firearm muffler or silencer parts that are transferred for further manufacture or repair to be “actively” in the manufacturing or repair process if those parts are being transferred for those purposes. 87 FR 24729. It is important to note that under new § 478.92(a)(4)(iv)(B), the term “repair” does not include replacement of the outer tube. This is because the outer tube is now defined as the frame or receiver and ATF considers replacement of a serialized outer tube to be a significant manufacturing activity that it results in the manufacture of a new silencer, which must be notified to ATF on a Form 2 in accordance with § 479.102.
E. Time Period for Marking
The Final Rule specifies the time period in which a complete weapon or a complete muffler or silencer device, or the frame or receiver of a weapon or device (including a modular subpart of a multi-piece frame or receiver), must be marked with a serial number and other identifying information and recorded. Non-NFA firearms must be marked within seven days following the date the entire manufacturing process has ended for the weapon, of for the frame or receiver if the latter is disposed of separately, or prior to disposition, whichever is sooner. See new § 478.92(a)(1)(iv)(A). Weapons and parts defined as ‘‘firearms’’ under the NFA must be marked by close of the next business day. See new §§ 478.92(a)(1)(iv)(B) and 479.102(a)(6). These time periods are consistent with the recordkeeping requirements.
F. Adoption of Existing Markings
In response to comments, the final rule permits licensed manufacturers and importers to adopt existing markings previously placed on a firearm without a variance from ATF in certain circumstances. These circumstances are specified in Parts 478 and 479 and include:
Newly manufactured firearms (§§ 478.92(a)(4)(iii)(A) and 479.102(b)(3)(i));
Remanufactured or imported firearms (§§ 478.92(a)(4)(iii)(B) and 479.102(b)(3)(ii));
Manufacturers performing gunsmithing services (§§ 478.92(a)(4)(iii)(C) and 479.102(b)(3)(iii)); and
Privately made firearms marked by non-licensees (non-NFA only, see § 478.92(a)(4)(iii)(D).
II. New Recordkeeping Requirements
The most significant change to the recordkeeping requirements is a new requirement for licensees to consolidate their records of firearms manufacture or acquisition with records of disposition, and to eliminate duplicate recordkeeping entries. To be clear, persons (including corporate entities) who are licensed as both a manufacturer and an importer must continue to maintain separate records for business conducted under the respective manufacturer or importer FFL, as detailed § 478.122 (required records for importers) and § 478.123 (required records for manufacturers).
Prior to the Final Rule, both these sections included a requirement for a licensed importer or a licensed manufacturer, respectively, to maintain separate records of their sales or other dispositions of firearms to non-licensees (old §§ 478.122(d) and 478.123(d)). However, in recent years ATF issued rulings to allow licensed importers and manufacturers to consolidate their records of acquisition with their separate disposition records. See ATF Rul. 2011-1 (authorizing licensed importers to consolidate their records of importation or other acquisition of firearms and their separate firearms disposition records, provided all stated requirements are met) and ATF Rul. 2016-3 (authorizing licensed manufacturers to consolidate their records of manufacture or other acquisition of firearms with their separate firearms disposition records, provided all stated conditions are met). By making this consolidation a requirement, the Final Rule supersedes ATF Rul. 2011-1 and 2016-3.
The Final Rule also implements clarifying technical changes to the format and column titles for the required acquisition and disposition (“A&D”) records, as detailed in tables in §§ 478.122, 478.123, and 478.125(e). These changes make clear that both the name and license number (not the address) of a licensee from whom firearms are received and to whom they are disposed are recorded properly in the A&D Record. The revised table columns for the A&D records are detailed in the Final Rule, 87 FR 24744 (manufacturers and importers) and 87 FR 24745 (dealers). The revisions for licensed collectors A&D records are at 87 FR 24746.
III. Closing Thoughts
Today, ATF published corrections to the Final Rule in 87 FR 51249. These corrections all appear to be minor and due to the significance and complexity of the Final Rule, people should anticipate additional corrections as time passes and ATF continues to receive comments or questions from industry pertaining to real-time operations under the new definitions.
This brings us to the end of the series, but have no fear, this will not be the last alert we write on the new definitions of “frame or receiver.” For now, I need the rest.
The above alert is for informational purposes only and is not intended to be construed or used as legal advice. Receipt of this alert does not establish an attorney-client relationship.
Questions about this alert may be directed to:
Johanna Reeves: 202-715-9941, firstname.lastname@example.org
About Reeves & Dola
Reeves & Dola is a Washington, DC law firm that specializes in helping clients navigate the highly regulated and complex world of manufacturing, sales and international trade of defense and commercial products. We have a deep understanding of the Federal regulatory process, and use our expertise in working with a variety of Federal agencies to assist our clients with their transactional and regulatory needs.
Representing Firearm Ammunition Importers and Exporters Since 1994