Statutory Federal Gun Registry Prohibitions and ATF Record Retention Requirements

Statutory Federal Gun Registry Prohibitions and ATF Record Retention Requirements

Updated February 5, 2024
Statutory Federal Gun Registry Prohibitions and ATF Record
Retention Requirements
On April 11, 2022, the Attorney General signed a Bureau of
civilian transfer prior to that date remain transferable. There
Alcohol, Tobacco, Firearms and Explosives (ATF) final
are no similar tax or registration requirements for GCA-
rule, Final Rule 2021R-05F, that includes a provision
regulated firearms that do not fall under the purview of the
requiring gun dealers to retain transaction records for the
NFA. Several states do have licensing/permitting regimes
entirety of their licensed activities, as opposed to the last 20
that serve as the basis for state gun registries. Under the
years of those activities. These records are to be submitted
GCA, Congress authorized a decentralized system of
to ATF whenever dealers go out of business.
recordkeeping allowing ATF to trace a firearm’s chain of
commerce, from manufacturer or importer to dealer, and to
Four provisions of statutory law prohibit a national registry
the first retail purchaser of record. FFLs are required to
of most, but not all, modern firearms. Two of these
maintain firearms transaction records for a minimum of 20
prohibitions set limits principally on ATF, while the other
years under previously promulgated ATF regulations, and
two set limits on the Federal Bureau of Investigation (FBI).
to submit a minimum of 20 years of their most recent
transaction records to ATF whenever they go out of
Final Rule 2021R-05F has raised questions about ATF
business (27 C.F.R. §478.129). Final Rule 2021R-05F,
record retention practices. Some gun rights advocates and
which became effective on August 24, 2022, expanded this
Members of Congress contend that this rule exceeds ATF’s
record retention to cover the entirety of an FFL’s licensed
legal authority and could be in contravention to two ATF-
activity.
related registry prohibitions.
Permanent ATF Appropriations Limitation
GCA-NFA Firearms Recordkeeping
For 34 years, FY1979 through FY2012, Congress attached
Two major federal statutes regulate commerce in and
a proviso to the annual ATF appropriations that blocked a
possession of firearms: the National Firearms Act of 1934
Carter Administration proposed rule, and any similarly
(NFA) and the Gun Control Act of 1968 (GCA). The
proposed rule, that would have required FFLs to submit
statutes assign implementation and enforcement
quarterly reports on firearms sales and dispositions. For
responsibilities to the Department of Justice (DOJ), which
FY2012, a word of futurity, “hereafter,” was included in
in turn delegated these duties primarily to ATF, with the
this proviso, which indicates it too is intended to apply
exception of the GCA background check provisions, which
permanently (H.Rept. 112-284, p. 240). This proviso reads:
are administered by the FBI. The GCA requires anyone
Provided, That no funds appropriated herein or
who engages in the business of manufacturing, importing,
or dealing in firearms to be federally licensed. These
hereafter shall be available for salaries or
licensees are known collectively as federal firearms
administrative expenses in connection with
licensees (FFLs).
consolidating
or
centralizing,
within
the
Department of Justice, the records, or any portion
All firearms that are capable of accepting self-contained,
thereof, of acquisition and disposition of firearms
commercially available ammunition are regulated under the
maintained by federal firearms licensees.
GCA, in addition to certain devices (e.g., silencers) that
(Consolidated and Further Continuing Appropriations Act,
also fall under the GCA definition of firearm. Under the
2012, P.L. 112-55, November 18, 2011, 125 Stat. 552, 609.)
NFA, a subset of GCA-regulated firearms (e.g., machine
guns, short-barreled shotguns, silencers) deemed to be
Firearms Owners’ Protection Act (FOPA), 1986
particularly dangerous are further regulated. The NFA
Under 18 U.S.C. §926, the Attorney General is authorized
imposes occupational taxes on FFLs who manufacture,
to prescribe the rules and regulations necessary to carry out
import, and deal in NFA firearms, taxes on unlicensed
the GCA. Section 6 of FOPA amended Section 926 to
persons making NFA firearms for themselves, and taxes on
prohibit a registry of firearms, firearms owners, or firearms
NFA firearms transfers to and among unlicensed persons.
transactions. The pertinent language of Section 926 reads:
ATF maintains a centralized registry of NFA-regulated
No such rule or regulation prescribed after the date
firearms held privately by unlicensed persons and publicly
of the enactment of the Firearms Owners’
by nonfederal law enforcement agencies. This registry, the
Protection Act may require that records required to
National Firearms Registration and Transfer Record
be maintained under this chapter or any portion of
(NFRTR), does not include records on firearms held or
the contents of such records, be recorded at or
controlled by the U.S. government. Congress prohibited the
transferred to a facility owned, managed, or
transfer of machine guns manufactured after May 19, 1986,
controlled by the United States or any State or any
to civilians, but machine guns lawfully registered for
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Statutory Federal Gun Registry Prohibitions and ATF Record Retention Requirements
political subdivision thereof, nor that any system of
subsection (g) or (n) of section 922 of title 18,
registration of firearms, firearms owners, or
United States Code, or State law.
firearms transactions or dispositions be established.
(Consolidated and Further Continuing Appropriations Act,
Nothing in this section expands or restricts the
2012, P.L. 112-55, November 18, 2011, 125 Stat. 552, 632.)
Secretary’s [Attorney General’s] authority to
inquire into the disposition of any firearm in the
2016 GAO Audit of ATF Recordkeeping
course of a criminal investigation.
The Government Accounting Office (GAO) audited ATF in
(P.L. 99-308, May 19, 1986, 100 Stat. 449, 459.)
2016 to examine its compliance with the agency-related
registry prohibitions described above. While raising issues
Brady Handgun Violence Prevention Act, 1993
with some ATF systems, GAO found ATF’s Out-of-
Under the Brady Act, Congress amended the GCA by
Business Record Imaging System (OBRIS) in compliance
requiring FFLs to initiate a background check on any
with these prohibitions. For firearms tracing, OBRIS can be
prospective unlicensed customer seeking to acquire a
searched and its records retrieved manually by FFL
firearm from them through a sale, trade, or redemption of
number, firearm serial number, and other descriptors, but it
firearms exchanged for collateral (18 U.S.C. §922(t)). The
was not electronically searchable by name or other
FBI facilitates these background checks through the
personally identifying information (PII) (See GAO Report
National Instant Criminal Background Check System
GAO-16-552).
(NICS). Subsection 103(i) of the Brady Act prohibits the
establishment of a registration system of firearms, firearms
ATF Collection of Transaction Records and Final
owners, or firearms transactions or dispositions with any
Rule
records generated by NICS, except for records on persons
A January 2022 ATF fact sheet indicated the bureau had
found ineligible to receive or possess firearms. It reads:
collected 54.7 million firearms transaction records in 2021
from FFLs who had gone out of business. Responding to a
No department, agency, officer, or employee of the
congressional inquiry, ATF later reported November 2021
United States may—(1) require that any record or
holdings of nearly 921 million out-of-business records, 94%
portion thereof generated by the system established
of which were computerized, as of November 2021. When
under this section be recorded at or transferred to a
ATF digitizes records, they are turned into images that
facility owned, managed, or controlled by the
cannot be detected using optical character recognition and
United States or any State or political subdivision
can only be accessed for firearm tracing. Every trace
thereof; or (2) use the system established under this
requires ATF to review each FFL record and are only
section to establish any system for the registration
accessed to complete these requests. Under Final Rule
of firearms, firearm owners, or firearm transactions
2021R-05F, record retention requires FFLs to maintain their
or dispositions, except with respect to persons,
Firearms Transaction Records (Form 4473) until they
prohibited by section 922 (g) or (n) of title 18,
discontinue licensed activity. It allows for paper records
United States Code or State law, from receiving a
older than 20 years to be stored at a warehouse that is
firearm.
subject to inspection. Alternatively, these forms can be
stored electronically in an ATF-accessible, read-only
(P.L. 103-159, November 30, 1993, 107 Stat. 1536, 1542.)
format and with a minimum of one electronic access point
for every 500 Forms 4473 executed over the previous year.
NICS Record Destruction Within 24 Hours
ATF maintains that its revised record retention
For nine years, FY2004 through FY2012, Congress
requirements are authorized and instrumental for firearms
included a general provision in the annual DOJ
tracing.
appropriations bill that required the FBI to destroy within
24 hours background check records on persons who are
Other provisions of Final Rule 2021R-05F (1) address case
found eligible to receive and possess firearms. For FY2012,
law concerning ATF rulings about split firearm frames and
Congress inserted a word of futurity, “hereafter,” in this
receivers, (2) amend marking requirements for silencer
provision, which indicates it is intended to apply
frames and baffles, (3) more closely regulate kits from
permanently (H.Rept. 112-284, p. 269). It reads:
which fully functional firearms might be assembled, and (4)
require FFLs who own or acquire privately made firearms
Sec. 511. Hereafter, none of the funds appropriated
(PMFs) as part of their business inventories to mark and
pursuant to this Act or any other provision of law
serialize those firearms. The provisions regarding PMFs
may be used for—(1) the implementation of any tax
have been deemed unlawful by the U.S. Court of Appeals
or fee in connection with the implementation of
for the Fifth Circuit, but the Supreme Court’s August 8,
subsection 922(t) of title 18, United States Code;
2023, order allows the ATF rule to remain until the
and (2) any system to implement subsection 922(t)
Supreme Court issues its ruling on appeal. This appeal is to
of title 18, United States Code, that does not require
be heard on February 28, 2024, but a decision may not be
and result in the destruction of any identifying
handed down until June 2024. Currently, unlicensed
information submitted by or on behalf of any person
individuals may make firearms for personal use and are not
who has been determined not to be prohibited from
required to mark and serialize them like firearms
possessing or receiving a firearm no more than 24
manufactured for commerce.
hours after the system advises a Federal firearms
Jordan B. Cohen, Analyst in Firearms Policy
licensee that possession or receipt of a firearm by
the prospective transferee would not violate
IF12057
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Statutory Federal Gun Registry Prohibitions and ATF Record Retention Requirements

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https://crsreports.congress.gov | IF12057 · VERSION 5 · UPDATED