Marking Requirements for Licensed Firearms Manufacturers and Licensed Importers
By Teresa G. Ficaretta, Esq. and Johanna Reeves, Esq.
This article appeared in Small Arms Review in April 2015. Legally Armed: V19N3
It is essential that persons holding licenses under the Gun Control Act of 1968 (GCA) as importers or manufacturers be familiar with marking requirements that apply to firearms they import or manufacture. This article will outline the requirements for marking requirements under the GCA and National Firearms Act (NFA), the process for obtaining a marking variance, and recent guidance on markings issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
GCA Marking Requirements
The GCA marking requirements in Title 18 of the United States Code (USC), Section 923(i) apply only to licensed importers and licensed manufacturers. Section 923(i) requires that licensed importers and licensed manufacturers identify the firearms they import or manufacture with a serial number engraved or cast on the receiver or frame of the weapon and such other information as required by regulation. ATF implementing regulations in Title 27 of the Code of Federal Regulations (CFR) Section 478.92 require that the serial number be conspicuously placed on the frame or receiver of the firearm and that it be an “individual serial number.” This means that the manufacturer or importer may not use a particular serial number on any other firearm that he or she manufactures or imports. The regulations also specify a minimum depth and height for the serial number.
ATF regulations in section 478.92 require that additional information be marked on the frame, receiver, or barrel of the firearm including (1) model; (2) caliber or gauge; (3) name of the manufacturer or importer, and if the firearm is imported, name of the foreign manufacturer; (4) city and state of the manufacturer and name of country if the firearm is imported; and (5) for imported firearms, name, city and state of importer. Because a frame or receiver is defined as a “firearm” in the GCA, the regulations make it clear that frames or receivers must be marked in accordance with section 923(i) and implementing regulations.
The regulations set forth a process for importers and manufacturers to request an alternate method or procedure from the marking requirements, commonly known as a “marking variance.” However, ATF has discretion as to whether to grant the variance, and it makes its decision based whether the proposed alternate means of marking is reasonable and will not hinder the effective administration of the law and regulations.
NFA Marking Requirements
The NFA marking requirements in Title 26 of the U.S. Code Section 5842 require manufacturers, importers, and makers of firearms identify each firearm manufactured, imported, or made by a serial number and such other information as specified in regulations. The NFA applies to machine guns, short barrel shotguns, short barrel rifles, silencers, destructive devices, and other concealable weapons. Regulations in 27 C.F.R. 479.102 impose requirements similar to those in the GCA, including minimum depth and height requirements and additional information. Section 479.102(c) also authorizes marking variances using the same process as that specified in section 478.92(a)(4).
Process for Obtaining a Marking Variance
Marking variances are often obtained when more than one manufacturer is involved in the production of a firearm. To avoid the clutter and confusion of having the names, cities, and states of two or more manufacturers marked on the firearm, one of the manufacturers submits a request to ATF to allow omission of such markings. ATF will generally approve such marking variances if all pertinent information concerning the firearms is submitted with the application.
Within the last year ATF has simplified the process for obtaining a marking variance by creating a form for applicants to use. The form, ATF 3311.4, replaces the letter application outlined in the regulations. The application requires identifying information concerning the licensees involved in the importation and/or manufacture of the firearm and a description of the process for such importation and/or manufacture. The form also requires information about the firearms that are the subject of the marking variance request, including the model, caliber/gauge, name of the manufacturer/importer that will be marked on the firearm, the type of firearm (pistol, revolver, rifle, shotgun, receiver, frame, etc.), and the serial number ranges for the firearms. This information is essential to ATF for tracing, in the event any of the firearms are diverted, recovered by law enforcement personnel, and submitted to ATF’s National Tracing Center for tracing.
Beginning on September 2, 2014, ATF’s Firearms and Ammunition Technology Division (formerly the Firearms Technology Branch) assumed the responsibility for processing requests for firearms marking variances. ATF advises that current processing time for marking variances is 3 months, so industry members should build this time into their production schedules. Marking variance requests should be submitted to ATF at firstname.lastname@example.org or by faxing them to (304) 616-4301.
Will ATF Use Variances to Waive Marking Requirements?
As a general rule ATF will not use its variance authority to waive marking requirements imposed by the law and regulations. It is unlikely ATF will completely waive the marking requirements of the law, as this renders the firearms untraceable in the event they are diverted from lawful commerce. However, ATF will generally grant reasonable requests to depart from the minimum size requirements, location of markings, and content of the markings when required by a specific government contract.
ATF Rulings on Markings
ATF has issued a number of rulings on the marking requirements of the law within the last few years as outlined below.
ATF Rul. 2009-5
This ruling authorized licensed manufacturers performing manufacturing processes on behalf of another licensed manufacturer to omit their marks of identification on the firearm under certain circumstances. These types of variances, often referred to as “nonmarking variances,” were, prior to issuance of this ruling, the most common type of variance approved by ATF. The requirements for nonmarking variances, as set forth in ATF Rul. 2009-5, are as follows:
(1) A licensed manufacturer receives firearms (complete firearms or frames/receivers) from another licensed manufacturer;
(2) The second manufacturer is performing a manufacturing process on the firearms at the direction of the first manufacturer;
(3) When the second manufacturer receives the firearms they are already marked with all information required by the GCA and NFA;
(4) Prior to alteration of the firearms, the second manufacturer submits to ATF a notice including the following information:
Manufacturer’s name, address, license number, and the name, address and license number of the manufacturer for which the manufacturing process is being performed;
A copy of the licenses held by both manufacturers;
A description of the manufacturing process to be performed by the second manufacturer;
The model, if assigned, of the firearms to be manufactured; and
The serial numbers and caliber/gauge of the firearms.
(5) The second manufacturer must submit the above information to ATF in a manner that results in a tracking number or receipt and maintain copies of its submission as part of its permanent records of manufacture.
Manufacturers who qualify for a nonmarking variance under the ruling are not required to submit a variance request on ATF Form 3311.4.
ATF Rul. 2012-1 and Time Period for Marking Firearms
The marking requirements of the GCA and NFA provide a great deal of detail on the content and placement of firearms markings. Regulations implementing the GCA also make it clear that markings must be placed on imported firearms no later than 15 days after their release from Customs custody. 27 C.F.R. 478.112(d)(2). Conspicuously absent from the GCA regulations is any guidance on when licensed manufacturers must mark domestically manufactured firearms.
NFA regulations require that markings be placed on the firearms no later than close of business the day following their manufacture. This is because ATF Form 2, Notice of Firearms Manufactured or Imported, must be filed by the manufacturer no later than the close of the next business day following manufacture. 27 C.F.R. 479.103. One of the required data fields on the ATF Form 2 is the serial number of the firearms. In the case of an imported NFA firearms, regulations in 27 C.F.R. 479.112 require that the Form 2 be filed no later than 15 days following the date the firearms was released from Customs custody. Because the Form 2 requires a serial number, imported NFA firearms must be marked within 15 days of their release from Customs custody.
ATF Rul. 2012-1 fills in the gap in GCA regulations by specifying a recommended time period in which manufacturers should mark firearms other than NFA firearms. The ruling holds that it is reasonable for a licensed manufacturer to have seven days following the date of completion (i.e., a firearm complete as to all component parts OR a frame or receiver to be disposed of separately) in which to mark a firearm and record its information in permanent records.
The ruling notes that a manufacturer may require more than 7 days to finish the manufacturing process from beginning to end depending on the nature of the process. For manufacturers who require a longer time period for marking, the ruling recommends that manufacturers maintain records to establish that the timeframe used for marking is reasonable. The ruling notes that such records may be useful to facilitate ATF inspection.
ATF Rul. 2012-1 is useful because it gives manufacturers guidance on what ATF believes is a reasonable timeframe for marking firearms, including frames or receivers. The ruling establishes a “safe harbor” of 7 days but recognizes that a longer timeframe may be appropriate, depending on manufacturing practices. Industry members advise that ATF field personnel use the 7-day timeframe fairly strictly in determining whether a violation of the marking requirements of the GCA has occurred.
ATF Rul. 2013-3
ATF Rul. 2013-3 is very significant, as it allows licensed manufacturers and licensed importers to adopt the markings already placed on firearms by a previous manufacturer without seeking a marking variance from ATF, provided all conditions in the ruling are satisfied. The ruling is also significant in that it states ATF’s position that marking additional information, including the make, model, caliber/gauge, manufacturer/importer name, and place of origin, on the slide of a pistol, rather than the frame, is reasonable and will not hinder effective administration of the regulations. ATF issued many variances authorizing markings on the pistol slide in the past, but the ruling recognized such practice without the need to obtain a variance.
The conditions set forth in ATF Rul. 2013-3 for adoption of markings already placed on a firearm are as follows:
(1) the manufacturer or importer must place on the frame, receiver, barrel, or pistol slide his or her own name, city, and state as specified on his or her FFL;
(2) The serial number adopted must be marked in accordance with 27 C.F.R. 478.92 and 479.102, including no duplication of any other serial number
adopted or placed by the manufacturer or importer;
(3) The manufacturer or importer must not remove, alter, or obliterate the serial number on the firearm, except a licensed importer must add a prefix or suffix to a foreign manufacturer’s serial number as necessary to avoid duplicating any other serial number used by that licensed importer;
(4) The serial number adopted must be comprised of only a combination of Roman letters and Arabic numerals or solely Arabic numerals (i.e., no Cyrillic characters, Greek or Russian letters).
(5) If the caliber or gauge is not marked on the firearm, the manufacturer or importer must mark the frame, receiver, barrel, or pistol slide with the actual caliber/gauge once known.
This ruling is similar to the “non-marking variance” authorized by 2009-5, because it allows a licensed importer or licensed manufacturer to forego placing their own marks of identification on a firearm that already has markings. However, there are several key differences. ATF Rul. 2009-5 applies only to domestically made firearms and not to imported firearms. Also, ATF Rul. 2009-5 requires that a notice be submitted to ATF with information about both manufacturers involved in the production of the firearm and the make, model, and serial numbers of the firearms being manufactured. Because one of the manufacturers involved in the production of the firearm does not place their name, city, and state on the firearm, ATF would not be able to accurately trace the firearms if they were diverted. Adoption of markings allowed under ATF Rul. 2013-3 requires no notice to ATF because the names of all licensees involved in manufacture and/or importation of the firearms will be marked on the firearm. ATF will have all the information it requires to trace any recovered firearms because it will be on the firearm itself.
The firearms marking requirements imposed by the GCA and NFA are complex and subject to change. Violations are punishable by imprisonment, substantial fines, seizure and forfeiture of improperly marked firearms, and license revocation. Licensed manufacturers and licensed importers should monitor ATF’s website to ensure they are up to date on the latest government policies on firearms marking requirements.