March 4, 2022
Statutory Federal Gun Registry Prohibitions and ATF Record
Retention Requirements
Four provisions of current law prohibit a national registry
NFA. However, several states do have licensing/permitting
of most, but not all, modern firearms. Two of these
regimes that serve as the basis for state gun registries.
prohibitions set limits on the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) principally, while the other
Under the GCA, Congress authorized a decentralized
two set limits on the Federal Bureau of Investigation (FBI).
system of recordkeeping that allows ATF to trace a
In 2016, the Government Accountability Office (GAO)
firearm’s chain of commerce, from manufacturer or
found ATF mainly in compliance with its limits, but a May
importer to dealer, and to the first retail purchaser of record.
2021 proposed rule has raised questions anew about ATF
FFLs must maintain firearms transaction records; i.e., ATF
record retention. This rule would require gun dealers to
Form 4473s on individual transfers and a corresponding
retain transaction records for the entirety of their licensed
acquisition/disposition log. FFLs must maintain these
activities, as opposed to the last 20 years of those activities.
records for a minimum of 20 years under current ATF-
These records are submitted to ATF whenever dealers go
promulgated regulations, and must submit a minimum of 20
out of business. Some gun rights advocates and Members of
years of their most recent transaction records to ATF
Congress contend that this proposed rule possibly exceeds
whenever they go out of business (27 C.F.R. § 478.129).
ATF’s legal authority and could be in contravention to the
two ATF-related registry prohibitions described below.
Permanent ATF Appropriations Limitation
For 34 years, FY1979 through FY2012, Congress attached
GCA-NFA Firearms Recordkeeping
a proviso to the annual ATF appropriations that blocked a
Two major federal statutes regulate commerce in and
Carter Administration proposed rule, and any similarly
possession of firearms. They are the 1934 National
proposed rule, that would have required FFLs to submit
Firearms Act (NFA) and the Gun Control Act of 1968
quarterly reports on firearms sales and dispositions. For
(GCA). At the Department of Justice (DOJ), ATF is the
FY2012, a word of futurity (“hereafter”) was included in
principal agency that administers and enforces the NFA and
this proviso, which indicates it too is intended to be
GCA; however, the FBI administers the GCA background
permanent law (H.Rept. 112-284, p. 240). This proviso
check provisions. The GCA requires anyone who engages
reads:
in the business of manufacturing, importing, or dealing in
firearms to be licensed federally. These licensees are known
Provided, That no funds appropriated herein or
collectively as federal firearms licensees, or FFLs.
hereafter shall be available for salaries or
administrative expenses in connection with
All modern firearms based on post-1898 designs that are
consolidating
or
centralizing,
within
the
capable of accepting self-contained, commercially available
Department of Justice, the records, or any portion
ammunition are regulated under the GCA, in addition to
thereof, of acquisition and disposition of firearms
certain devices (e.g., silencers) that also fall under the GCA
maintained by [F]ederal firearms licensees.
definition of “firearm.” Under the NFA, a subset of GCA-
regulated firearms (e.g., machine guns, short-barreled
(Consolidated and Further Continuing Appropriations Act,
shotguns, and silencers) deemed to be particularly
2012, P.L. 112-55, November 18, 2011, 125 Stat. 552, 609.)
dangerous are further regulated. The NFA imposes
occupational taxes on FFLs who manufacture, import, and
Firearms Owners’ Protection Act (FOPA), 1986
deal in NFA firearms; taxes on unlicensed persons making
Under 18 U.S.C. § 926, the Attorney General is authorized
NFA firearms for themselves; and taxes on NFA firearms
to prescribe the rules and regulations necessary to carry out
transfers to and among unlicensed persons.
the GCA. Section 6 of FOPA amended § 926 to prohibit a
registry of firearms, firearms owners, or firearms
ATF maintains a centralized registry of NFA-regulated
transactions. The pertinent language of § 926 reads:
firearms that are held privately by unlicensed persons and
publicly by non-federal law enforcement agencies. This
No such rule or regulation prescribed after the date
registry, the National Firearms Registration and Transfer
of the enactment of the Firearms Owners’
Record (NFRTR), does not include records on firearms held
Protection Act may require that records required to
or controlled by the U.S. government. Congress prohibited
be maintained under this chapter or any portion of
the transfer of machine guns manufactured after May 19,
the contents of such records, be recorded at or
1986 to civilians, but machine guns lawfully registered for
transferred to a facility owned, managed, or
civilian transfer prior to that date remain transferable. There
controlled by the United States or any State or any
are no similar tax or registration requirements for GCA-
political subdivision thereof, nor that any system of
regulated firearms that do not fall under the purview of the
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Statutory Federal Gun Registry Prohibitions and ATF Record Retention Requirements
registration of firearms, firearms owners, or
information submitted by or on behalf of any person
firearms transactions or dispositions be established.
who has been determined not to be prohibited from
Nothing in this section expands or restricts the
possessing or receiving a firearm no more than 24
Secretary’s [Attorney General’s] authority to
hours after the system advises a Federal firearms
inquire into the disposition of any firearm in the
licensee that possession or receipt of a firearm by
course of a criminal investigation.
the prospective transferee would not violate
subsection (g) or (n) of section 922 of title 18,
(P.L. 99-308, May 19, 1986, 100 Stat. 449, 459.)
United States Code, or State law.
Brady Handgun Violence Prevention Act, 1993
(Consolidated and Further Continuing Appropriations Act,
Under the Brady Act, Congress amended the GCA and
2012, P.L. 112-55, November 18, 2011, 125 Stat. 552, 632.)
required FFLs to initiate a background check on any
prospective unlicensed customer seeking to acquire a
2016 GAO Audit of ATF Recordkeeping
firearm from them through a sale, trade, or redemption of
GAO audited ATF in 2016 to examine its compliance with
firearms exchanged for collateral (18 U.S.C. § 922(t)). The
its agency-related registry prohibitions described above.
FBI facilitates these background checks through the
While GAO raised issues with some ATF systems, GAO
National Instant Criminal Background Check System
found that the ATF Out-of-Business Record Imaging
(NICS). Subsection 103(i) of the Brady Act prohibits the
System (OBRIS) was in compliance with these
establishment of a registration system of firearms, firearms
prohibitions. For firearms tracing purposes, OBRIS could
owners, or firearms transactions or dispositions with any
be searched and its records retrieved manually by FFL
records generated by NICS, except for records on persons
number, firearm serial number, and other descriptors, but it
found ineligible to receive or possess firearms. It reads:
was not electronically searchable by name or other
personally identifying information, or PII (GAO-16-552).
No department, agency, officer, or employee of the
United States may—(1) require that any record or
ATF Fact Sheet and Proposed Rule
portion thereof generated by the system established
In January 2022, an ATF fact sheet indicated that the
under this section be recorded at or transferred to a
bureau had collected 54.7 million firearms transaction
facility owned, managed, or controlled by the
records in 2021 from FFLs who had gone out of business.
United States or any State or political subdivision
Responding to a congressional inquiry, ATF later reported
thereof; or (2) use the system established under this
that it held nearly 921 million out-of-business records, 94%
section to establish any system for the registration
of which were computerized, as of November 2021. These
of firearms, firearm owners, or firearm transactions
statistics brought additional attention to an ATF May 2021
or dispositions, except with respect to persons,
proposed rule (86 FR 27720) and a provision that would
prohibited by section 922 (g) or (n) of title 18,
require FFLs to maintain their firearms transaction records
for as long as they are in business or otherwise engaged in
United States Code or State law, from receiving a
any licensed activities, instead of the 20 years under current
firearm.
law. ATF maintains that its proposed record retention and
(P.L. 103-159, November 30, 1993, 107 Stat. 1536, 1542.)
submission requirements are authorized under current law,
For background, see CRS Report R45970, Gun Control:
instrumental for firearms tracing, and will increase trace-
National Instant Criminal Background Check System
generated leads in criminal investigations.
(NICS) Operations and Related Legislation.
Other provisions of this proposed rule would: (1) address
NICS Record Destruction Within 24 Hours
case law calling into question long-standing ATF rulings
For nine years, FY2004 through FY2012, Congress
about split firearm frames and receivers; (2) amend marking
included a general provision in the annual DOJ
requirements for silencer baffles; (3) more closely regulate
appropriations bill that required the FBI to destroy
firearms parts kits, from which fully functional firearms
background check records on persons who are found
might be “readily” assembled; and (4) require FFLs who
eligible to receive and possess firearms within 24 hours.
have or acquire privately made firearms as part of their
This provision was crafted in response to a 90-day NICS
business inventories to mark and serialize those firearms.
audit log that was maintained by the FBI during the Clinton
Administration. For FY2012, Congress inserted a word of
Under current law, unlicensed individuals may make
futurity (“hereafter”) in this provision, which indicates it is
firearms for personal use, as long as their intentions are not
intended to be permanent law (H.Rept. 112-284, p. 269). It
to sell those firearms. Current law does not require that
reads:
such privately made firearms be marked and serialized like
firearms manufactured for commercial sale. If unlawfully
Sec. 511. Hereafter, none of the funds appropriated
trafficked, there are no commercial records to trace
pursuant to this Act or any other provision of law
unmarked firearms back to their maker and subsequent
may be used for—(1) the implementation of any tax
transferees, and as such, are commonly referred to as “ghost
or fee in connection with the implementation of
guns.” For additional background, see CRS In Focus
subsection 922(t) of title 18, United States Code;
IF11810, Privately Made Firearms: A Growing Source of
and (2) any system to implement subsection 922(t)
Unmarked, Untraceable “Ghost Guns”?
of title 18, United States Code, that does not require
and result in the destruction of any identifying
https://crsreports.congress.gov

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Statutory Federal Gun Registry Prohibitions and ATF Record Retention Requirements

William J. Krouse, Specialist in Domestic Security and
Crime Policy
IF12057


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https://crsreports.congress.gov | IF12057 · VERSION 1 · NEW

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