September 12, 2023 – The Department of Justice (“DOJ”) has issued a notice and request for comments relating to proposed amendments to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) regulations for the purpose of implementing the provisions of the Bipartisan Safer Communities Act (“BSCA”), which became effective June 25, 2022. These amendments primarily change various definitions that affect both individuals and licensed dealers.
The proposed amendments broaden the definition of when a person is considered to be “engaged in the business” as a dealer in firearms, other than a gunsmith or pawnbroker. Rather than establishing a minimum threshold number of firearms purchased or sold, under the new rule, a person will be presumed to be engaged in the business of dealing in firearms when that person: (1) sells firearms and also represents to potential buyers a willingness to sell additional firearms; (2) spends more money on purchases of firearms than the person’s reported taxable gross income; (3) repetitively purchases firearms using sham businesses, straw persons or illegal firearms for the purpose of resale; and (4) repetitively sells or offers for sale firearms within 30 days after they were purchased, are new in their original packaging, and/or the same or similar in kind.
In addition, the new rule would define for the first time the term “responsible person,” in the context of a federal firearms license, as “[a]ny individual possessing, directly or indirectly, the power to direct or cause the direction of the management, policies, and business practices of a corporation, partnership, or association, insofar as they pertain to firearms.”
Consistent with the Gun Control Act (“GCA”) and existing regulations, the proposed rule further defines the term “personal collection” to clarify when persons are not “engaged in the business” because they make only occasional sales to enhance a personal collection, or for a hobby, or if the firearms they sell are all or part of a personal collection. This proposed rule also addresses the lawful ways in which former licensees – and responsible persons acting on behalf of such licensees – may liquidate business inventory upon revocation or other termination of their license. This includes classifying a person as “engaged in the business of dealing in firearms” when a responsible person sells or offers for sale firearms that were transferred to a personal collection after a license revocation or termination within one year of the transfer.
The proposed amendments outline specific procedures for the disposition of existing regulated product inventories when a license is revoked or otherwise terminated. This includes certain terms that we have seen the ATF require since the “Biden Zero Tolerance” mandate went into effect, including a prohibition on any new acquisitions and a 30 day period to liquidate firearms to other licensees or transferring firearms to the personal collection of the former licensee.
Finally, the proposed amendments clarify that a licensee transferring a firearm to another licensee must do so by following the verification and recordkeeping procedures in 27 CFR § 478.94, rather than by using a Firearms Transaction Record, ATF Form 4473 (“Form 4473”).
Comments to the proposed amendments may be submitted through the Federal eRulemaking Portal at www.regulations.gov, or via regular mail to the Office of Regulatory Affairs, Enforcement Programs and Services at the ATF. Any comments must be submitted in ninety days (by December 7, 2023).
Renzulli Law Firm, LLP will continue to monitor these proposed rule amendments and other firearm related statutes around the country. If you have any questions concerning firearms related litigation, please contact John F. Renzulli or Christopher Renzulli.