April 14, 2009

BATFE Q&A: How the Child Safety Lock Act Works For Dealers and Customers

Answers to questions gun owners have concerning licenses, retail sales, manufacturing, and other issues.

Here's more BATFE answers to questions gun owners have concerning the special provisions of the Child Safety Lock Act (CLSA):

What is the purpose of the Child Safety Lock Act?

The stated purposes of the Child Safety Lock Act (CSLA) are as follows:

To promote the safe storage and use of handguns by consumers;

To prevent unauthorized persons, including children, from gaining access to or use of a handgun;

To avoid hindering industry from supplying firearms to law-abiding citizens for all lawful purposes, including hunting, self-defense, collecting, and competitive or recreational shooting.

What qualifies as a secure gun storage or safety device?

The term “secure gun storage or safety device” is defined as follows:

a device that, when installed on a firearm, is designed to prevent the firearm from being operated without first deactivating the device;

a device incorporated into the design of the firearm that is designed to prevent the operation of the firearm by anyone not having access to the device; or

a safe, gun safe, gun case, lock box, or other device that is designed to be or can be used to store a firearm and that is designed to be unlocked only by means of a key, a combination, or other similar means.

Most commercially marketed handgun safety locks or devices fit within the statutory definition. ATF does not consider the use of zip ties, rope, or string sufficient to satisfy the definition set forth in 18 U.S.C. § 921(a)(34).

When must secure gun storage or a safety device be provided and are there any exceptions?

A secure gun storage or safety device is required with the sale, delivery, or transfer of a handgun to a nonlicensee. This provision does not apply to the transfer of handguns to any Federal firearms licensee, nor does it apply to the following:

The handgun’s manufacture for, transfer to, or possession by, the United States, a department or agency of the United States, a State, or a department, agency, or political subdivision of a State; or

The handgun’s transfer to, or possession by, a law enforcement officer employed by an entity referred to in paragraph (a) for law enforcement purposes (whether on or off duty);

The handgun’s transfer to, or possession by, a rail police officer employed by a rail carrier and certified or commissioned as a police officer under the laws of a State for purposes of law enforcement (whether on or off duty);

The transfer of a handgun listed as a curio or relic to any person by the Attorney General pursuant to 18 U.S.C. 921(a)(13); or

The transfer of a handgun to any person for which a secure gun storage or safety device is temporarily unavailable for the reasons described in the exceptions stated in 18 U.S.C. 923(e), if the licensed manufacturer, licensed importer, or licensed dealer delivers to the transferee within 10 calendar days from the date of the delivery of the handgun to the transferee, a secure gun storage or safety device for the handgun.

How are C&R firearms affected by the CSLA?

C&R firearms are exempt from the CSLA. Therefore, Type 03 licensees, collectors of curios or relics (C&R), are exempt from providing child safety locks in transfers involving C&R firearms. However, if a Type 03 licensee purchases a handgun not classified as a C&R from a licensed manufacturer, importer, or dealer, it would be necessary for the licensed manufacturer, importer, or dealer to provide a secure gun storage or safety device with that handgun.

If temporarily unavailable, how does a licensee “deliver” secure gun storage or a safety device within 10 calendar days?

Under the CSLA, a licensee is required to provide a secure gun storage or safety device to all nonlicensees with certain exceptions. An exception under 18 U.S.C. § 922(z)(2)(d) allows for the temporary unavailability of secure gun storage or safety devices due to theft, casualty loss, consumer sales, backorders, or other similar reasons beyond the control of the licensee. However, a safety device must be provided to the purchaser within 10 calendar days of the handgun’s transfer. The law does not specifically indicate how the safety device is to be delivered to the purchaser. The buyer may come back to the store in person, or it may be mailed or shipped.

If one gun case or safe is purchased with the sale of multiple handguns, does this meet the obligation to provide secure gun storage or a safety device with each handgun?

Yes. However, the gun case or safe must be large enough to contain and secure all handguns purchased in a single transaction. Otherwise, the licensee is required to provide a secure gun storage or safety device for each handgun.

Is a licensee required to provide a secure gun storage or safety device with the return of a repaired or replacement handgun to the same individual?

No. The licensee is not required to provide a secure gun storage or safety device with the return of a repaired or replacement firearm to the same individual. However, if a repaired or replacement handgun were to be transferred to a different individual, a secure gun storage or safety device would be required along with completion of the ATF Form 4473 and compliance with the Brady law.

Is a licensee required to provide a secure gun storage or safety device when loaning or renting a handgun?

A licensee is not required to provide a safety device for a loaned or rented handgun that is used on the business premises of the licensee. However, a safety device would be required for firearms loaned or rented for use away from the licensee’s business premises.

If a licensee stores firearms on his or her business premises for a nonlicensee, is the licensee required to provide a secure gun storage or safety device with a handgun upon its return to the owner?

If a licensee stores a handgun on his or her business premises for a nonlicensee, the licensee would be required to provide a secure gun storage or safety device upon its return. However, a safety device would not be required upon the return of the handgun if it was accompanied by a safety device when originally placed in storage.

Is a licensee required to provide a secure gun storage or safety device with a “receiver” for a handgun?

A receiver alone is not a “handgun” as defined in the GCA. Therefore, without the accompanying parts for a complete handgun, a secure gun storage or safety device would not be required. However, if a licensee transfers a receiver with all the component parts for a complete handgun, a secure gun storage or safety device would be required.

Must a secure gun storage or safety device be provided upon the redemption of a pawned handgun?

If an individual supplies a secure gun storage or safety device at the time the handgun was pawned, an additional safety device would not be required at the time of redemption. However, if a secure gun storage or safety device was not provided at the time of pawning the handgun, the licensee would be required to provide a safety device at the time of redemption. This would also be true for the return of “consignment” firearms.

Is a secure gun storage or safety device required for transactions resulting from consignment-type and estate-type auctions?

In consignment-type auctions, an FFL will generally take possession of the firearms prior to the auction and will place the firearms into his or her business inventory. The firearms will generally be displayed at the auction for sale and subsequently returned to the business premises for a background check and completion of the ATF Form 4473. For consignment-type auctions, an FFL is required to provide a secure gun storage or safety device at the time of transferring a handgun to a nonlicensee.

Alternatively, a secure gun storage or safety device would not be required for estate-type auctions. In these types of auctions, the executor of the estate is the actual owner of the firearms and, therefore, the actual “seller.” The auctioneer or licensee would not be disposing of firearms as part of his or her business. Unlike consignment-type auctions, the FFL will not take physical possession of the firearms. The disposal or sale of the firearms will be conducted by the executor of the estate and is not considered a part of business inventory.

Can a juvenile possess a handgun and ammunition on the business premises of a licensee?

Juvenile possession of a handgun on the business premises of a licensee for examination or viewing purposes is prohibited. It is unlawful for a Federal firearms licensee to sell or deliver “any firearm or ammunition to any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age, and, if the firearm or ammunition is other than a shotgun or rifle, or ammunition for a shotgun or rifle, to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age.”

Further, 18 U.S.C. 922(x) provides that it shall be unlawful for a person to sell, deliver, or otherwise transfer to a person who the transferor knows or has reasonable cause to believe is a juvenile — (a) a handgun; or (b) ammunition that is suitable for use only in a handgun. And, it shall be unlawful for any person who is a juvenile to knowingly possess the same. This subsection does not apply to--

a temporary transfer of a handgun or ammunition to a juvenile or to the possession or use of a handgun or ammunition by a juvenile if the handgun and ammunition are possessed and used by the juvenile--

in the course of employment, in the course of ranching or farming related to activities at the residence of the juvenile (or on property used for ranching or farming at which the juvenile, with the permission of the property owner or lessee, is performing activities related to the operation of the farm or ranch), target practice, hunting, or a course of instruction in the safe and lawful use of a handgun;

with the prior written consent of the juvenile's parent or guardian who is not prohibited by Federal, State, or local law from possessing a firearm, except--

during transportation by the juvenile of an unloaded handgun in a locked container directly from the place of transfer to a place at which an activity described in clause (i) is to take place and transportation by the juvenile of that handgun, unloaded and in a locked container, directly from the place at which such an activity took place to the transferor; or

with respect to ranching or farming activities as described in clause (i), a juvenile may possess and use a handgun or ammunition with the prior written approval of the juvenile's parent or legal guardian and at the direction of an adult who is not prohibited by Federal, State or local law from possessing a firearm;

the juvenile has the prior written consent in the juvenile's possession at all times when a handgun is in the possession of the juvenile; and

in accordance with State and local law;

a juvenile who is a member of the Armed Forces of the United States or the National Guard who possesses or is armed with a handgun in the line of duty;

a transfer by inheritance of title (but not possession) of a handgun or ammunition to a juvenile; or

the possession of a handgun or ammunition by a juvenile taken in defense of the juvenile or other persons against an intruder into the residence of the juvenile or a residence in which the juvenile is an invited guest.

Therefore, juvenile possession of a handgun on the business premises of a licensee for examination or viewing purposes is prohibited as it does not fall within one of the enumerated exceptions.

Can a corporate registrant of an NFA weapon allow an employee to deliver the NFA weapon to a customer or client for the purpose of a demonstration? If so, must the employee be present at all times for the demonstration and is there a limit on the time the customer or client can possess the weapon?

A corporate registrant may allow an employee to take possession of the weapon for the purpose of delivery to a customer or client for demonstration purposes. The customer may handle and possess the weapon while the employee is present. Further, there is no time limit placed on the demonstration. However, the employee must be present at all times, thereby retaining possession of the weapon. Otherwise, an unlawful transfer of an NFA weapon would occur.

When purchasing a firearm from a Federal firearms licensee, is an approved Request and Authorization for Permanent Change of Station – Military form or similar Permanent Change of Station Orders (PCS Orders) sufficient for an active duty member of the Armed Forces to prove his/her State of residency after the reporting date stated in the orders?

Yes, so long as the PCS orders have been signed and authenticated by the approving official listed in the orders. As provided by 18 U.S.C. § 921(b) and 27 CFR § 478.11 (definition of “State of Residence”), a member of the Armed Forces on active duty is a resident of the State in which his/her permanent duty station is located. Approved PCS orders are valid military orders requiring the military member to report to active duty on the date, and at the permanent duty station stated in the orders. Therefore, PCS orders are sufficient proof that the military member is a resident of the State in which the new permanent duty station is located after the reporting date stated in the orders.

If the member of the Armed Forces receives his orders electronically and does not have signed and authenticated PCS orders, he may present an electronic copy of the PCS orders along with an original official letter, signed by his commanding officer at his new duty station authenticating the PCS orders. This letter must include contact information for the commanding officer in order to allow for verification of the orders.

Military orders approving only temporary duty (“TDY” or “TAD”) at another location are not sufficient to show the State of residency of a military member when acquiring a firearm. Also, a valid (unexpired) picture ID issued by a Government entity must accompany the PCS orders to constitute a proper “identification document” for an active duty military member to acquire a firearm from a Federal firearms licensee.

My company conducts an inventory of its firearms every year. This inventory takes several weeks to complete. At any time during the inventory we may find that a firearm is missing. When is the firearm considered “missing” for purposes of reporting to ATF and local authorities?

The GCA requires that missing and stolen firearms be reported to ATF and local authorities within 48 hours of discovery. The clock begins to run when you are reasonably certain that the firearm is missing. So, if while conducting an inventory you are reasonably certain that the firearm is missing, you are required to report this missing firearm to ATF and local authorities within 48 hours. If you are not reasonably certain, you should immediately take the steps necessary to become reasonably certain that the firearm is missing. These steps may include conducting a search.

If there is any doubt as to whether a report should be made, it is best to err on the side of caution and make a report to ATF and local authorities. Further, ATF’s local field offices are always available to answer any questions you might have regarding this issue.

It is important to note that a firearm reported to ATF as missing is not entered into the National Crime Information Center (NCIC) database of stolen firearms. Missing firearms are entered into a proprietary ATF database of missing firearms from Federal firearms licensees.

If you later locate the missing firearm, you should notify ATF’s Stolen Firearms Program Manager by calling toll free (888) 930-9275 so that we may update the database.

(Q): May a nonimmigrant alien rent a firearm to go hunting or shoot at a range?

If the nonimmigrant alien possesses a valid hunting license from a State within the United States or can satisfy the licensee that they fit within one of the other exemptions outlined in 18 U.S.C. 922(y), he/she may rent a firearm to hunt or use at a shooting range. The 90-day residency requirement does not apply to aliens acquiring firearms on a temporary loan or rental basis for lawful sporting purposes.

What is a straw purchase?

A straw purchase occurs when the actual purchaser of the firearm solicits another person, a “straw man,” to complete the ATF Form 4473 to indicate that the straw man is the purchaser. A straw purchase can occur even when the actual purchaser is not prohibited.

Does ATF consider a family member picking up a pawned firearm for another family member a straw purchase?

Under certain situations, family members may pick up a firearm for another family member. For example, a pawn ticket can be transferred to a family member, or any other individual, as long as the transfer complies with all State and local laws. However, if the individual who pawned the firearm is a prohibited person, and the pawn ticket was transferred after a National Instant Criminal Background Check System (NICS) check on the original pawn ticket holder came back denied or delayed, then a family member who attempts to redeem the firearm may be a straw transferee. FFLs who encounter this factual scenario should contact their local ATF office for guidance.

May a licensee return a consigned firearm to a different individual rather than the person who originally placed the firearm on consignment?

Yes. Licensees may return a consigned firearm to an individual other than the person who originally placed the firearm on consignment, provided an ATF Form 4473 is completed and a background check is conducted. The licensee must always ensure the transaction is in compliance with State and local law.

How would question 11(a) (Are you the actual buyer of the firearm(s) listed on this form) on the ATF Form 4473 be completed in the scenario outlined above?

If a person is picking up a consigned firearm for another individual, question 11(a) on the May 2007 version of the ATF Form 4473 should be answered with an “N/A.” FFLs should check instructions on the ATF Form 4473 as any revised form may change this requirement. A background check must also be conducted on the individual picking up the firearm.

Can a licensee return a consigned firearm to a family member of the person who originally consigned the firearm if that person was a prohibited individual?

A family member of a prohibited individual who placed a firearm on consignment with a licensee may pick up the firearm subsequent to a background check and completion of the ATF Form 4473 as long as the family member is not retrieving the firearm to return to the prohibited person. It must be made perfectly clear that the person who picks up the firearm may not transfer or deliver the firearm to the prohibited individual.

How would question 11(a) on the ATF Form 4473 be completed in the scenario outlined above?

The individual would complete the ATF Form 4473 by answering “yes” to question 11(a) reflecting that he/she is the actual purchaser of the firearm. A licensee must emphasize to the family member that the firearm must not be delivered to the prohibited person. A background check must also be conducted on the individual picking up the firearm from consignment.

Can I accept a faxed, scanned, or e-mailed license of an FFL to verify the identity of the FFL transferee?

Yes, if the signature on the faxed, e-mailed, or scanned license is intended as an original signature by the person who signed the faxed, e-mailed, or scanned copy. The regulation requires that licensees disposing of firearms to other licensees verify the identity and licensed status of the transferee prior to delivery of the firearm(s). Verification shall be established by the transferee furnishing a certified copy of their license to the transferor and by such means as the transferor deems necessary. The regulations do not specifically address whether the certified license that is furnished to the transferor must have an original signature. However, the license itself indicates under “Purchasing Certification” that the signature on each copy of the certified license must be an ORIGINAL signature.

It is ATF’s position that any type of signature, whether it is done by hand, with a pen, stamped, auto-penned, or any other type of signature, is an original signature if the person whose signature appears intends it as an original signature. As the regulations do not limit the types of signatures that can be on the certified license, a faxed copy, as well as a scanned and e-mailed copy, are acceptable.

The ATF eZ Check system, which can be accessed through the ATF Web site at www.atfonline.gov/fflezcheck or by telephoning toll free 1-877-560-2435, provides a quick and easy way to ensure that a particular license is valid. If you need any additional information relating to this, please contact your local ATF field office for additional assistance.

Was a law recently passed that allowed contractors working for the Federal Government to acquire machineguns?

On August 8, 2005, the Energy Policy Act of 2005 was signed by the President. The legislation authorizes security personnel of any licensee or certification holder of the Nuclear Regulatory Commission (NRC), including an employee or a contractor of such a licensee or certificate holder, to transfer, receive, possess, transport, import, and use one or more firearms, weapons, ammunition, or devices notwithstanding certain Federal and State prohibitions. This new provision is a departure from present legal restrictions that do not allow for certain weapons to be imported for, transferred to, or possessed by non-government entities. Specifically, it allows private contractors, employees, and security personnel to receive and possess the types of firearms generally available only to government agencies, e.g. non-sporting firearms, short-barrel weapons, and machineguns. However, private security personnel will be subject to the provision that prohibits licensees from transferring a firearm to a person who does not reside in the State in which the licensee’s place of business is located. They will also have to complete an ATF Form 4473 and comply with the Brady law.

The NRC is charged with determining when authorization to possess restricted weapons is appropriate. This new statute takes effect on the date in which guidelines for the implementation are issued by the NRC, with the approval of the Attorney General. Until then, the security personnel are still subject to all provisions of the Gun Control Act. As of July 30, 2008, the guidelines have not been issued.

How should a licensee respond to a police officer’s request for an original ATF Form 4473?

If a State or local law enforcement agency requires an original Form 4473 for criminal investigation purposes, the licensee should make a copy of the form to maintain for his or her records as required. In addition, the licensee should record the requesting officer’s name and badge number as well as a contact name and telephone number for the agency in case ATF needs information from the ATF Form 4473. This also applies to a subpoena for the Form 4473.

May an employee who becomes prohibited from possessing firearms continue to be employed by a Federal firearms licensee (FFL)?

The prohibited employee may continue to work for the FFL as long as he does not have access to firearms, either actual or constructive. All firearms should be kept locked, and the prohibited person should not have access to the keys. The prohibited employee may not possess any firearm. “Possession” is defined below.

For purposes of the GCA, possession may be either actual or constructive. Actual possession of a firearm or ammunition exists when the firearm or ammunition is in the immediate possession or control of the person.

Constructive possession exists when a person does not have actual possession but instead knowingly has the power and intention at a given time to exercise dominion and control over the firearm or ammunition, either directly or through others. Possession need not be exclusive, but may be joint possession with others. In addition, a person may be in possession of a firearm or ammunition even though he or she does not own the property.

How many firearms must be sold in order to be considered “engaged in the business?”

The GCA does not identify or define a specific number of firearms that a person can sell or transfer before he/she must obtain a Federal firearms license.

The GCA does, however, establish definitions that determine whether or not a person is required to have a Federal firearms license before engaging in certain firearms-related activities. Specifically, if an individual is engaged in the business of buying and selling firearms, he or she will be required to have a license.

The GCA defines “engaged in the business” as it applies to a dealer as:

“a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”

Therefore, if a person is devoting time, attention, and labor to engaging in firearms sales as a regular course of trade or business with the principle objective of livelihood and profit, they would be considered “engaged in the business” and would consequently be required to have a Federal firearms license. Neither ATF nor the courts have identified a specific number of firearms that may be bought and sold before a license is required. However, if the intent underlying the sale of firearms is predominantly one of obtaining livelihood and pecuniary gain, then a license must be obtained or the unlicensed individual will be in violation.

What markings are required to be placed on firearms by licensed importers and manufacturers?

The Gun Control Act (GCA) and National Firearms Act (NFA) regulations set forth the marking requirements for licensed manufacturers and importers. Generally, these licensees must legibly and conspicuously mark the firearms with the required markings (such as the serial number, the name of the manufacturer and/or importer, the city and State of the manufacturer or the importer, etc.). ATF has consistently taken the position that “legibly” marked means using exclusively Roman letters (A, a, B, b, C, c, and so forth) and Arabic numerals (1, 2, 3, 4, 5, 6, and so forth), and “conspicuous” means that all the required markings must be placed in such a manner as to be wholly unobstructed from plain view. For firearms manufactured, imported, or made on or after January 30, 2002, the engraving, casting, or stamping (impressing) of the serial number must be to a minimum depth of .003 inch and in a print size no smaller than 1/16 inch. Thus, where an imported firearm contains foreign or obstructed markings, the licensed importer must place new markings on the firearm. These new markings are those that are required to be recorded by the licensee. ATF Ruling 2002-6 offers further clarification on these points.