John Harris, in addition to volunteering as TFA’s executive director, is an attorney in Nashville, Tennessee, who regularly represents clients in matters involving the Bureau of Alcohol, Tobacco, Firearms and Explosives. On September 9, 2022 he wrote to the ATF to request clarification of the ATF’s updated rule that went into effect on August 24, 2022, concerning its reclassification of “80%” kits and their status both for federal firearms licensees and those individuals who are not federally licensed dealers or manufacturers.
On February 8, 2023, approximately 5 months after the inquiry was made, a “firearms enforcement specialist” with the ATF responded in writing. The answers from the ATF on this issue may be of interest to many who have items that are or may be classified as 80% kits. This is the ATF’s written response:
Mr. Harris,
Thank you for your inquiry to the Firearms Industry Programs Branch (FIPB). This is in response to your email, in which submitted several questions related to Final Rule 2021R-05F. For clarity of reading, I have copied your questions below and will attempt to address each question with a response to each directly below it.
- Prior to August 24, 2022, individuals or entities could possess and sell non-firearms (e.g., something that was an 80% lower for example) without an FFL. Would it be accurate that those individuals/entities who had these items prior to 8/24/22 and were not FFLs can continue to own them as unsearialized PMFs but cannot sell or transfer them to third parties without compliance with the new regs?
A. As you may be aware, “80% receiver” is an industry term which the ATF does not use to identify an item or determine if the item does or does not constitute a firearm. It would be accurate to say that a non-licensee, who is not prohibited from possessing firearms pursuant to section 922(g), would be allowed to retain an item or a “kit” which, although not considered a firearm prior to implementation of Final Rule 2021R-05F, now would meet the definition of being a firearm under 27 CFR 478.12. Any subsequent sale or distribution of items meeting the definition of “frame” or “receiver” under 27 CFR 478.12 to an FFL would require the FFL to mark the frames or receivers in accordance with the new rule. The FFL would also need to be in compliance with all applicable state and local laws and/or ordinances. The new rule does not impose any requirements, under Federal law, on transfer between non-licensee owners of PMFs, but places certain requirements on FFLs.- Prior to August 24, 2022, individuals or entities who held FFLs could own/possess non-firearms (which are now redefined after 8/24/22 as firearms) without those items being listed in the inventory, A&D or other records. If the individual or entity reclassified them as “personal inventory” rather than FFL inventory prior to 8/24/22 (CFR 478.92.a.4.vi) it appears that they would not be FFL inventory and not subject to the marking requirements unless sold to a third party or placed into FFL inventory. Are there any FAQs or regs specifically on this issue?
A. As you noted, the marking of privately made firearms acquired by a licensee before August 24, 2022 is addressed in 27 CFR 478.92(a)(4)(vi), which states “[l]icensees shall identify in the manner prescribed by this section, or cause another person to identify, each privately made firearm received or otherwise acquired (including from a personal collection) by the licensee before August 24, 2022 within sixty (60) days from that date, or prior to the date of final disposition (including to a personal collection), whichever is sooner.” The regulation therefore specifically addresses privately made firearm “received or otherwise acquired” by a licensee prior to August 24, 2022, and makes no exemption based on status as “inventory” or “personal collection.” Pursuant to the facts you presented, these privately made firearms were indeed “received or otherwise acquired” by the FFL prior to August 24 and are currently possessed by the FFL even if the FFL purportedly “reclassified” these as part of a personal collection. Hence, any such privately made firearm possessed by an FFL as inventory or as part of a personal collection is subject to the 60-day marking requirement in section 478.92(a)(4)(vi).- It appears from the wording of amended s §478.125(i) and 478.125a that an FFL could have PMFs in a personal inventory without a complying with the marking requirement that would apply if the PMF was transferred to or from FFL inventory on or after 8/24/22. Part of the question here is what steps, if any, would have been required prior to 8/24/22 to determine if the items previously considered non-firearms are personal inventory rather than FFL inventory (e.g., such as tagging them if at the FFL licensed premise or moving them off of the licensed premises?)
A. Please see ATF’s response to question 2, which states an FFL is required by regulation to mark any privately made firearm in its possession “received or otherwise acquired” by that licensee prior to August 24, 2022.- How do the personal inventory / FFL inventory determinations work if the PMF is possessed by a home-based FFL?
A. Home-based FFLs are subject to the same requirements as other FFLs. Please see ATF’s response to question 2, which states an FFL is required by regulation to mark any privately made firearm in its possession “received or otherwise acquired” by that licensee prior to August 24, 2022.We trust the foregoing has been responsive to your inquiry.
Sorry, comments are closed for this post.