Aug. 16, 2022
News from Reeves & Dola, LLP
ATF's New "Frame or Receiver" Rule
What You Should Know
-- Part 2 --

This is our second installment of a 3-part Alert covering the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) Final Rule 2021R-05F (the “Final Rule”) overhauling the definition of firearm “frame or receiver” and amending the marking requirements for firearms. The Final Rule was published on April 26, 2022 in Vol. 87 of the Federal Register, pp. 24652-24749, and is scheduled to go into effect on August 24, 2022.
In Part 1 of our Alert, we dove into the new definition of “Frame or Receiver” and provided a process for evaluating whether a firearm part is captured under the new definition. You can access Part 1 on the Reeves & Dola website.
In this second part we will review the Final Rule’s impact on firearms made by unlicensed persons, what is now termed “Privately Made Firearms” or “PMFs”. This aspect of the Final Rule has received a lot of attention and is the most controversial. Multiple lawsuits have been filed in different jurisdictions against the Department of Justice and the ATF to prevent the Final Rule from going into effect. In one case brought by Gun Owners of America, seventeen states have joined as Plaintiffs. We will update you should any of these cases delay implementation of the Final Rule.
In the meantime, we shall push forward with review of the Final Rule as it is better to be prepared. The regulatory citations in this Alert are all in Title 27 of the Code of Federal Regulations.

I. What is a Privately Made Firearm?

A. New Defined Term

The Final Rule creates a new term, “Privately Made Firearm” to be added to § 478.11 as follows:
Privately made firearm (PMF). A firearm, including a frame or receiver, completed, assembled, or otherwise produced by a person other than a licensed manufacturer, and without a serial number placed by a licensed manufacturer at the time the firearm was produced. The term shall not include a firearm identified and registered in the National Firearms Registration and Transfer Record pursuant to chapter 53, title 26, United States Code, or any firearm manufactured or made before October 22, 1968 (unless remanufactured after that date).”
The Final Rule also amends the definitions in Part 447 (governing permanent imports of firearms and other defense articles) to cross reference this term. 

B. Why ATF Created a New Term

Citing “technological advances,” ATF explains in the Final Rule that it is now easier for companies to sell firearm parts kits, standalone frame or receiver parts, and easy-to complete frames or receivers to unlicensed persons without maintaining any records or conducting a background check, even though such products enable individuals to “quickly and easily” make firearms. “Such privately made firearms (“PMFs”), when made for personal use, are not required by the GCA to have a serial number placed on the frame or receiver, making it difficult for law enforcement to determine where, by whom, or when they were manufactured, and to whom they were sold or otherwise transferred. Because of the difficulty with tracing illegally sold or distributed PMFs, those firearms are also commonly referred to as “ghost guns.”
However, the Final Rule does not prohibit individuals from making their own PMFs. Indeed, ATF acknowledges repeatedly that firearms privately made by non-prohibited persons solely for personal use generally do not come under the purview of the GCA.
“This rule does not restrict law abiding citizens’ ability to make their own firearms from parts for self-defense or other lawful purposes. Under this rule, non-prohibited persons may continue to lawfully complete, assemble, and transfer unmarked firearms without a license as long as they are not engaged in the business of manufacturing, importing, dealing in, or transacting curio or relic firearms in a manner requiring a license. Neither the GCA nor this implementing rule requires unlicensed individuals to mark (non-NFA) firearms they make for their personal use, or to transfer them to an FFL for marking. Such individuals who wish to produce, acquire, or transfer PMFs should, however, determine whether there are any applicable restrictions under State or local law.” Final Rule at 24686-24687 (internal citations omitted).
The way the Final Rule imposes control over PMFs is through Federal Firearms Licensees (“FFLs” or “licensees”) who accept a PMF into inventory. These licensees will be responsible for marking the PMF and entering it into their Acquisition and Disposition (“A&D”) records according to the requirements set forth in the Final Rule, which we explain below.

II. PMF Marking Requirements

A. What Triggers the Marking Requirement?

Under the Final Rule, unlicensed individuals are not required to mark their own PMFs for personal use or when they occasionally acquire them for a personal collection or sell or transfer them from a personal collection to unlicensed in-state residents consistent with federal, state, and local law. Only once a PMF is transferred to a licensee for any reason, including repair, and the licensee voluntarily accepts the PMF into its inventory, is that licensee required to mark the PMF in accordance with the requirements set forth in § 478.92. Citing to the GCA, 18 U.S.C. 923(g)(1)(A), (g)(2), ATF explains, “[t]he GCA provides that all firearms received and transferred by FFLs must be traceable through licensee records maintained for the period and in such form as prescribed by regulations. There is no exception for PMFs.” Final Rule at 24687.
The Final Rule does not obligate any licensee to receive a PMF into its inventory, so a licensee can choose to refuse the PMF. In addition, licensed dealer-gunsmiths, manufacturers, and importers who do same-day adjustments or repairs to a firearm do not have to mark the firearm or enter it into their A&D records if the firearm is returned to the same person from whom it was received, and it is not kept overnight. This distinction tracks ATF’s long-held policy for licensed gunsmiths performing on-the-spot repairs of commercially produced firearms (see ATF Rul. 77-1) and clarifies that this policy applies to licensed manufacturers and licensed importers, not just licensed dealers or gunsmiths.
National Firearms Act firearms identified and registered on the National Firearms Registration and Transfer Record pursuant to an ATF Form 1 (5320.1) Application to Make and Register a Firearm are not subject to the PMF marking requirements. Neither are firearms manufactured or made prior to October 22, 1968 (the effective date of the GCA) unless the firearm is remanufactured after that date.

B. What is the Required Format for a PMF Serial Number?

The Final Rule requires the serial numbers for PMFs be unique (not duplicate any other serial number placed by the licensee on any other firearm) and begin with the licensee’s abbreviated Federal firearms license number as a prefix to a unique identification number, followed by a hyphen. The abbreviated license number is the first three and last five digits, so an example would be:
12345678-[unique identification number]
There is no requirement for the private maker to be identified in the firearm markings or in the licensee’s records. As the serial number will contain the licensee’s abbreviated license number, the PMF would be traced to the licensee, not the private maker.
If a PMF is already marked with a unique identification number by the unlicensed private maker, the licensee may adopt the existing number if that identifying number meets the marking requirements of § 478.92 (for example, the number cannot be readily obliterated, altered, or removed, meets the size and depth requirements, and does not duplicate any of the licensee’s other firearms). However, the licensee must place their abbreviated license number as a prefix followed by a hyphen to the existing serial number, thus enabling the firearm to be traced to the licensee. This part of the rule will be codified in § 478.92(a)(4)(iii)(D).
For polymer frames or receivers, the PMF serial number can be placed on a metal plate permanently embedded into the polymer, or by another method approved in advance by ATF.
C. Who Can Mark the Firearms?
According to ATF, the intent of the Final Rule is not to require FFLs to obtain equipment to serialize PMFs. If a licensee is not capable of marking a PMF it will accept into inventory, the licensee can take the PMF to another FFL or to a non-licensed engraver for marking services. In the latter instance, the engraver would apply the markings under the licensee’s direct supervision and must not accept the PMF into inventory (i.e., the PMF must not be transferred to the non-licensed engraver).
The FFL may also require the unlicensed individual to serialize the PMF prior to accepting the PMF into the FFL's inventory. Unlicensed individuals can accomplish this by utilizing the marking services of licensed gunsmiths-dealers. To provide greater access to professional marking services, ATF revises the definition of “engaged in the business” as it pertains to gunsmiths to clarify that persons who engage in the business of identifying firearms for non-licensees may become licensed as dealer-gunsmiths solely to provide professional PMF marking services. They do not have to be licensed as manufacturers. As ATF explains, “allowing persons to be licensed as dealer-gunsmiths will make professional marking services more available to unlicensed individuals, and make it possible for other licensees to receive and transfer PMFs should they choose to accept them into inventory in the course of their licensed activities.” Final Rule at 24689.
D. How Soon Must an FFL Mark A PMF?
For PMFs acquired by licensees before August 24, 2022 (the effective date of the Final Rule), licensees must either mark the PMFs or cause them to be marked by another licensee either within 60 days from the effective date of a final rule (October 23, 2022), or before the date of final disposition (including to a personal collection), whichever is sooner. In these instances, the licensee may outsource the marking services to a licensed manufacturer or gunsmith. This will be codified at § 478.92(a)(4)(vi).
If a PMF is acquired on or after the effective date (August 24, 2022), § 478.92(a)(2) will require markings to be applied within seven (7) days following the date of receipt, including from a personal collection, or before disposition, including to a personal collection, whichever is sooner. In these instances, licensees may must either apply the markings themselves or cause the markings to be applied under their direct supervision, as described above.
III. PMF Recordkeeping Requirements

The Final Rule amends § 478.125(i) to require licensees to record the acquisition and disposition of a PMF. These requirements apply to licensed manufacturers, licensed importers, licensed dealers, and for personal firearms collections.
If the firearm is privately made in the United States and no manufacturer name has been identified on a PMF, the licensee who accepts the PMF into inventory must record the words “privately made firearm” or the abbreviation “PMF” as the name of the manufacturer. The name of the actual private maker is not required to be entered into the licensee’s records.
A licensee must record acquisition of a PMF into its records by close of the next business day following receipt of the PMF. However, the PMF serial number need not be immediately recorded if the firearm is being identified by the licensee or marked under the licensee’s direct supervision in accordance with § 478.92(a)(2). Remember, the licensee has 7 days to mark the PMF (or prior to disposition, whichever is sooner). Consequently, if the PMF is not marked at the time of receipt, the licensee should leave the serial number portion in the acquisition record blank until the PMF is properly marked. Once marked, the licensee must update the acquisition entry to show the new serial number.
If repairs are conducted within the same day (not overnight) and returned to the same person from whom received, the FFL does not have to record the PMF into its records.
If a PMF will be transferred to another non-licensee, “privately made firearm” or “PMF” must be recorded on the Form 4473 as the name of the manufacturer. §478.124(c)(4).

IV. Conclusion

That does it for PMFs. Our final installment in this series will review the non-PMF marking and recordkeeping requirements and will include important information for licensed manufacturers and importers who will have to operate under these new rules starting next week.
The above alert is for informational purposes only and is not intended to be construed or used as legal advice. Receipt of this alert does not establish an attorney-client relationship.

Questions about this alert may be directed to:

Johanna Reeves: 202-715-9941,
About Reeves & Dola
Reeves & Dola is a Washington, DC law firm that specializes in helping clients navigate the highly regulated and complex world of manufacturing, sales and international trade of defense and commercial products. We have a deep understanding of the Federal regulatory process, and use our expertise in working with a variety of Federal agencies to assist our clients with their transactional and regulatory needs.
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