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This is a proposed rule (not final) that would roll back and simplify ATF’s prior expansion of the “engaged in the business” definition, removing presumptions and extra regulatory language and returning mostly to the statutory definition passed by Congress.
Impact: High—reduces regulatory ambiguity and perceived overreach, but may result in fewer people being required (or feeling required) to get an FFL.
Applies to: Both individuals and FFLs.

What this rule means
In 2024, ATF issued a rule expanding and interpreting what it means to be “engaged in the business” of dealing firearms (which requires an FFL).

That rule:

  • Added presumptions and examples of when someone is considered a dealer
  • Broadened interpretation of who might need an FFL
  • Created concern that it effectively pushed toward “universal background checks” through regulation

This new rule proposes to undo much of that expansion and return to:

  • The plain statutory definition from Congress (BSCA)
  • A more traditional, case-by-case analysis 

What the rule actually does
If finalized, this rule would:

  1. Remove “presumptions” of being a dealer
    The prior rule said you were presumed to be “engaged in the business” if, for example:
  • You resold firearms quickly
  • You sold certain types repeatedly
  • You used payment systems like a business

This rule removes those presumptions because:

  • They risked shifting the burden onto the individual to prove innocence
  • Courts found them problematic
  • ATF admits they were unnecessary and not actually used
  1. Return to a facts-and-circumstances standard
    Instead of bright-line rules, it goes back to:

You are a dealer if:

  • You repetitively buy and sell firearms
  • With the intent to make a profit

No fixed number of sales triggers it:

  • Selling 2 guns could qualify
  • Selling 50 might not (if it’s a personal collection)
  1. Broaden what counts as a “personal collection”
    The prior rule:
  • Narrowly defined what counted as a collection
  • Excluded things like firearms for self-defense

This rule:

  • Removes those restrictions
  • Returns to a broader, common-sense understanding:
    • Personal, non-commercial ownership = not a business
  1. Remove restrictions on former FFL inventory
    The prior rule:
  • Limited how former FFLs could sell leftover inventory
  • Imposed long-term restrictions

This rule:

  • Removes those constraints
  • Allows former FFLs to:
    • Sell firearms occasionally like any private individual
  • BUT:
    • Still prohibits acting like a dealer without a license
  1. Keep core statutory definitions
    The rule still keeps:
  • The BSCA definition:
    • “Predominantly earn a profit”
  • Core licensing requirement:
    • If you act like a dealer → you need an FFL

What will change (real-world impact)

For Individuals (Major Impact):

  • Less risk of being unintentionally classified as a dealer
  • More freedom to:
    • Buy/sell from personal collection
    • Sell occasionally without fear of crossing unclear lines
  • But:
    • Still illegal to act like a business without a license

For FFLs:

  • Slight reduction in competitive pressure from forced licensing expansion
  • Less regulatory ambiguity in advising customers

For the system overall:

  • Fewer people may:
    • Apply for FFLs
    • Conduct background checks
  • ATF acknowledges:
    • Possible (but minimal) increase in unlicensed dealing risk

Key Takeaways

  • Removes controversial “presumptions” of being a dealer
  • Returns to a case-by-case, intent-based standard
  • Expands protection for personal collection activity
  • Reduces perceived regulatory overreach
  • Does NOT eliminate the requirement to get an FFL if truly operating as a business

Proposed Rules to Be Published:

DEPARTMENT OF JUSTICE

Bureau of Alcohol, Tobacco, Firearms, and Explosives

27 CFR part 478

[Docket No. ATF-2026-0074; ATF 2025R-27P]

RIN 1140-AB01

Revising Regulations Defining “Engaged in the Business” as a Dealer in Firearms

AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) is

proposing to revise regulations implementing the “engaged in the business” definition from

the Bipartisan Safer Communities Act (“BSCA”). Although Congress defined that term in

BSCA, the Department of Justice (“Department”) provided additional definitions in its

implementing regulations to further define terms within the statutory definition and to

include examples of covered activities that established rebuttable presumptions of being

engaged in the business of dealing in firearms. This rule proposes to remove those changes.

ATF has determined that the changes have not shown the expected impact on federal

firearms licensee applications, administrative licensing actions, civil forfeitures, or other

anticipated effects.

DATES: Comments must be submitted in writing, and must be submitted on or before (or, if

mailed, must be postmarked on or before) [INSERT DATE 90 DAYS AFTER DATE OF

PUBLICATION IN THE FEDERAL REGISTER]. Commenters should be aware that the

federal e-rulemaking portal comment system will not accept comments after midnight

Eastern Time on the last day of the comment period.

ADDRESSES: You may submit comments, identified by RIN 1140-AB01, by either of the

following methods—• Federal e-rulemaking portal: https://www.regulations.gov. Follow the instructions for

submitting comments.

• Mail: ATF Rulemaking Comments; Mail Stop 6N-518, Office of Regulatory Affairs;

Enforcement Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and Explosives;

99 New York Ave, NE; Washington DC 20226; ATTN: RIN 1140-AB01.

Instructions: All submissions must include the agency name and number (RIN 1140-

AB01) for this notice of proposed rulemaking (“NPRM” or “proposed rule”). ATF may post

all properly completed comments it receives from either of the methods described above,

without change, to the federal e-rulemaking portal, https://www.regulations.gov. This

includes any personally identifying information (“PII”) or business proprietary information

(“PROPIN”) submitted in the body of the comment or as part of a related attachment they

want posted. Commenters who submit through the federal e-rulemaking portal and do not

want any of their PII posted on the internet should omit it from the body of their comment

and any uploaded attachments that they want posted. If online commenters wish to submit

PII with their comment, they should place it in a separate attachment and mark it at the top

with the marking “CUI//PRVCY.” Commenters who submit through mail should likewise

omit their PII or PROPIN from the body of the comment and provide any such information

on the cover sheet only, marking it at the top as “CUI//PRVCY” for PII, or as

“CUI//PROPIN” for PROPIN. For detailed instructions on submitting comments and

additional information on the rulemaking process, see the “Public Participation” heading of

the SUPPLEMENTARY INFORMATION section of this document. In accordance with 5

U.S.C. 553(b)(4), a summary of this rule may be found at https://www.regulations.gov.

Commenters must submit comments by using one of the methods described above, not by

emailing the address set forth in the following paragraph.

FOR FURTHER INFORMATION CONTACT: Office of Regulatory Affairs, by email at

ORA@atf.gov, by mail at Office of Regulatory Affairs; Enforcement Programs and Services;Bureau of Alcohol, Tobacco, Firearms, and Explosives; 99 New York Ave, NE; Washington,

DC 20226, or by telephone at 202-648-7070 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Background

The Attorney General is responsible for enforcing the Gun Control Act of 1968

(“GCA”), as amended. This responsibility includes the authority to promulgate regulations

necessary to enforce the provisions of the GCA.1 See 18 U.S.C. 926(a). Congress and the

Attorney General have delegated the responsibility for administering and enforcing the GCA

to the Director of ATF (“Director”) subject to the direction of the Attorney General and the

Deputy Attorney General. See 28 U.S.C. 599A(b)(1), (c)(1); 28 CFR 0.130(a)(1)–(2); Treas.

Order No. 221(2)(a), (d), 37 FR 11696–97 (June 10, 1972).2 Accordingly, the Department

and ATF have promulgated regulations to implement the GCA in 27 CFR part 478.

The GCA, at 18 U.S.C. 922(a)(1)(A) and as implemented at 27 CFR 478.41(a),

makes it unlawful for any person, except a federal firearms licensee (“FFL” or “licensee”)—

that is a licensed dealer, manufacturer, or importer—to ‘‘engage in the business’’ of dealing

in, manufacturing, or importing firearms. A person may file an application with and receive

such a license from ATF, to which the Attorney General has delegated the licensing function.

See 18 U.S.C. 923(a); 27 CFR 478.41(b). Licensees are generally required to conduct

background checks on prospective firearm recipients through the Federal Bureau of

Investigation’s National Instant Criminal Background Check System (“NICS”) to prevent

prohibited persons from receiving firearms. See 18 U.S.C. 922(t). Licensees also must

1 Some GCA provisions still refer to the “Secretary of the Treasury.” However, the Homeland Security Act of

2002, Pub. L. 107–296, 116 Stat. 2135, transferred the functions of ATF from the Department of the Treasury to

the Department of Justice, under the general authority of the Attorney General. 26 U.S.C. 7801(a)(2); 28 U.S.C.

599A(c)(1). Thus, for ease of reference, this proposed rule refers to the Attorney General where relevant.

2 In Attorney General Order Number 6353–2025, the Attorney General delegated authority to the Director to

issue regulations pertaining to matters within ATF’s jurisdiction, including under the National Firearms Act,

GCA, and Title XI of the Organized Crime Control Act. ATF’s jurisdiction also includes those portions of

section 38 of the Arms Export Control Act pertaining to the permanent import of defense articles and defense

services and the Contraband Cigarette Trafficking Act.maintain firearms transaction records for crime-gun tracing purposes. See 18 U.S.C.

923(g)(1)(A).

In 1986, Congress passed the Firearms Owners’ Protection Act (‘‘FOPA’’), Pub. L.

99–308 (1986), in which it defined the term “engaged in the business” for purposes of the

GCA as applied to a dealer.3 The statute defined a dealer engaged in the business 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.’’ 18 U.S.C. 921(a)(21)(C) (2020). FOPA also defined the

phrase ‘‘with the principal objective of livelihood and profit’’ to mean ‘‘that the intent

underlying the sale or disposition of firearms is predominantly one of obtaining livelihood

and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal

firearms collection.’’ FOPA, Pub. L. 99–308, sec. 101 (adding paragraphs (21)(C) and (22)

to 18 U.S.C. 921(a)); see also 18 U.S.C. 921(a)(22) (2020). FOPA’s definition of ‘‘engaged

in the business’’ as a dealer was incorporated into ATF’s implementing regulations at 27

CFR 178.114 (now § 478.11) as ‘‘Dealer in firearms other than a gunsmith or a

pawnbroker.’’ 27 CFR 478.11.

On June 25, 2022, Congress passed the Bipartisan Safer Communities Act (“BSCA”),

Pub. L. 117–159. Among other provisions, section 12002 of BSCA broadened the statutory

definition of “engaged in the business” by eliminating the requirement that a person’s

“principal objective” of purchasing and reselling firearms must include both “livelihood and

profit” and replacing it with a requirement that the person must intend “to predominantly

3 ATF notes that there is there is some overlap in statutory control of firearms for purposes of the GCA and for

purposes of section 38 of the Arms Export Control Act. Any person (1) who “engages in the business of”

manufacturing, exporting, or temporarily importing defense articles and defense services related to certain

firearms on the United States Munitions List and designated in the International Traffic in Arms Regulations

(“ITAR”), 22 CFR parts 120–130, at 22 CFR 121.1, or (2) who engages in the brokering of firearms designated

at that section and those firearms designated as defense articles on the U.S. Munitions Import List at 22 CFR

447.21, is required to register with the Department of State and pay a fee. These requirements are prescribed at

sections 122.1 and 129.3 of the ITAR and are distinct from the requirements discussed in this proposed rule and

the definition of “engaged in the business” at 18 U.S.C. 921(a)(21).

4 Commerce in Firearms and Ammunition, 53 FR 10480, 10491 (Mar. 31, 1988).earn a profit.” The statute now provides that, as applied to a dealer in firearms, the term

“engaged in the business’’ means ‘‘a person who devotes time, attention, and labor to dealing

in firearms as a regular course of trade or business to predominantly earn a profit through the

repetitive purchase and resale of firearms.’’ 18 U.S.C. 921(a)(21)(C) (emphasis added).

BSCA defined the term “predominantly earn a profit” to mean that the intent underlying the

sale or disposition of a firearm is for pecuniary gain rather than for other purposes, such as

selling a personal firearms collection. 18 U.S.C. 921(a)(22). Prior to BSCA, this term

required the principal objective of selling or disposing firearms to be both for profit and, in

addition, maintaining a livelihood. BSCA’s statutory amendment to the term “predominantly

earn a profit” shifts the primary focus to the intended pecuniary gain from selling or

disposing firearms even when such activity is not the person’s main source of income.

When drafting regulations to implement BSCA, the Biden Administration directed

the Department to further clarify, through rulemaking, the meaning of the term “engaged in

the business.” Specifically, President Biden issued Executive Order 14092, which required

the Attorney General to develop and implement a plan to, in relevant part, “clarify the

definition of who is engaged in the business of dealing in firearms, and thus required to

become [FFLs], in order to increase compliance with the federal background check

requirement for firearm sales, including by considering a rulemaking, as appropriate and

consistent with applicable law; [and] prevent former FFLs whose licenses have been revoked

or surrendered from continuing to engage in the business of dealing in firearms.”5 The Biden

Administration attempted to implement policy changes that went far beyond the regulatory

changes necessary to implement BSCA.

The Department published a final rule, titled “Definition of ‘Engaged in the Business’

as a Firearms Dealer,” 89 FR 28968 (Apr. 19, 2024) (“EIB rule”), which became effective on

5 Reducing Gun Violence and Making Our Communities Safer, E.O. 14092, sec. 3(a)(i), 88 FR 16527, 16527–

28 (Mar. 14, 2023).May 20, 2024. The EIB rule amended the regulations in 27 CFR part 478 to (1) incorporate

BSCA’s definition of the term “engaged in the business,” (2) provide clarification and

guidance on what it means to be “engaged in the business” and to have the requisite intent to

“predominantly earn a profit,” and (3) identify conduct that was presumed to constitute

“dealing” and to show relevant intent. See 89 FR 28968. The EIB rule also defined the term

“responsible person” and addressed the procedures former licensees must follow when they

liquidate business inventory when their license is terminated. Id.

Although the EIB rule purported to provide clarification and guidance, many

provisions of the rule were—and are—at odds with the statutory text. By broadly defining

the concept of unlawful dealing, for instance, the Biden Administration began to approach a

system of universal background checks through administrative regulation. For example, one

definition narrowed the range of firearms that could permissibly be deemed part of a

“personal collection,” and thus, that may be liquidated by unlicensed persons. The

Department also adopted fact-pattern presumptions that many objectors believed, in practice,

would relieve the Government of its burden of proof to demonstrate unlawful dealing.

The EIB rule was immediately the subject of litigation. On June 12, 2024, the United

States District Court for the Northern District of Texas enjoined ATF from enforcing the rule

as to the plaintiffs—one individual, four advocacy groups, and the States of Texas,

Mississippi, Louisiana and Utah—for the pendency of the litigation.6 In addition, the district

court found that several regulatory presumptions in the EIB rule conflict with the statute.7 In

particular, it found that ATF had no authority to use administrative regulations to expand the

zone of firearms-dealing subject to regulation beyond that which Congress statutorily

created. In subsequent litigation, the United States District Court for the District of Kansas

See Texas. v. ATF, 737 F. Supp. 3d 426 (N.D. Tex. 2024).

See id. at 442 (stating that “several presumptions conflict with the statutory text. Two of them, for example,

provide that a person is presumptively ‘engaged in the business’ if the person ‘demonstrates a willingness and

ability to purchase and resell’ firearms or ‘purchases … or … resells’ firearms”).denied a motion for preliminary injunction, on both standing and the merits,8 as did the

United States District Court for the Northern District of Alabama with respect to standing.9

However, on September 30, 2025, the Northern District of Alabama granted the plaintiff’s

motion for summary judgment. The Northern District of Alabama found that the plaintiffs

had established standing. On the merits, the court determined that ATF exceeded its statutory

authority in issuing the final rule and that the rule improperly expanded the statutory

definition of “engaged in the business.”10

II. Proposed Rule

On further review, ATF agrees that the EIB rule is replete with procedural and

substantive problems. Consequently, ATF proposes repealing those sections of the EIB rule

that do not correctly implement the GCA and BSCA. ATF does not propose, however, to

repeal the EIB rule in its entirety. Some sections of the EIB rule will be retained—for

example, those providing for the discontinuance of business operations—although this rule

proposes to amend some of those provisions.

A. Presumptions

The EIB rule created fact-pattern presumptions that a person was engaged in the

business. These presumptions were intended to be used to determine whether a person was

engaged in the business as a dealer and whether a person had the intent to predominantly earn

a profit. See 89 FR 28975–80. For example, a person would be presumed to be engaged in

the business when a person repetitively resells or offers for resale firearms—

(i) within 30 days after the person purchased the firearms; or

(ii) within one year after the person purchased the firearms if they are—

(A) new, or like new in their original packaging; or

See Kansas v. Garland, 2024 WL 3360533, at *9 (D. Kan. July 10, 2024) (finding “serious issues appear in

Plaintiffs’ standing and merits arguments that prevent them from making the strong showing necessary to obtain

injunctive relief”).

Butler v. Garland, 2024 WL 5424418 (N.D. Ala. Nov. 4, 2024).

10 Butler v. Bondi, 805 F. Supp. 3d 1175 (N.D. Ala. 2025).(B) the same make and model, or variants thereof.

27 CFR 478.13(c). Additionally, 27 CFR 478.13(d)(2) identified seven circumstances that

create a presumption of intent to predominantly earn a profit, which included, for example,

when a person “[p]urchases or otherwise secures merchant services as a business (e.g., credit

card transaction services, digital wallet for business) through which the person intends to

repetitively accept payments for firearms transactions.”

The EIB rule’s stated intent was to (1) license more persons; (2) deter others from

engaging in the business without a license; (3) increase the number of background checks by

increasing the licensed population; and (4) expand the reach of crime-gun trace requests by

increasing the licensed population. See 89 FR 28968.

With respect to the first two purposes, ATF’s position is the presumptions created by

the EIB rule were largely unnecessary because the statutory definition is readily

comprehensible. For dealers, the core of being engaged in the business requires the intent to

profit from the repeated buying and selling of firearms. In other words, a person must be a

wholesaler or retailer of new or used goods. For example, a person who buys ten models of

the same handgun, with the predominant intent to resell for a profit, and then proceeds to sell

any number of them repetitively three days later at a flea market is engaged in the business

within the statutory definition. See 18 U.S.C. 921(a)(21)(C) (applying the definition of

“engaged in the business” as a dealer). That person would be engaged in the business from

the moment he made repetitive sales with the intent to profit. Even if the individual sold only

two firearms, the individual intended to engage in a course of business dealings and then

began doing so. Courts have held that such activity requires a license because the statute

reaches those who hold themselves out as retail sources of firearms.11 In contrast, selling two

11 See United States v. King, 735 F.3d 1098, 1107 (9th Cir. 2013) (upholding conviction of defendant who

attempted to sell one firearm and represented to buyer that he could purchase more for resale, and noting that

“Section 922(a)(1)(A) does not require an actual sale of firearms”); United States v. Zheng Jian Shan, 90 F.

App’x 31 (9th Cir. 2003) (holding that evidence of sale of weapons in one transaction where defendant

demonstrated willingness and ability to resell more weapons was enough to affirm conviction).firearms from a personal collection in two isolated transactions does not rise to the level of

engaging in the business because there is no intent to engage in repetitive buying and selling

for profit.

More importantly, the existence of these presumptions created a serious risk of abuse

in civil and administrative proceedings. The court of appeals cases relied upon by the EIB

rule used the strong form of rebuttable presumptions: the fact will be presumed to exist until

the defendant offers enough evidence to disprove it. See 89 FR 29007. The citations in the

EIB rule indicate—or at the very least, raise the risk that courts might erroneously

conclude—that the EIB rule was intended to do more than simply shift the burden of

production. Potentially shifting the burden of proof to the defendant raised concerns among

the regulated public, Members of Congress, and others that ATF illegitimately attempted to

relieve the Government of its burden of proof in civil and administrative proceedings.

Indeed, in Texas v. ATF, the district court found the presumptions to be highly problematic

because “they flip the statute on its head by requiring that firearm owners prove innocence

rather than the government prove guilt.”12 It further stated that “[p]resumptions, especially in

administrative proceedings that may generate institution-destroying liability, cannot be a

matter of Department ipse dixit.”13 Thus, on further review, ATF agrees that the risk that the

presumptions could have been used erroneously to relieve the Government of its burden of

proof justifies discarding the presumptions.

While the Department disclaimed that the presumptions were designed to relieve the

Government of its burden of proof (and the EIB rule stated that “the rebuttable presumptions

apply only to shift the burden of production,” 89 FR 29007), that disclaimer rests on a

questionable foundation. The presumptions all involved fact patterns from which a fact finder

could find that a person was engaged in the business. Given that the presumptions already

12 Texas v. ATF, 737 F. Supp. 3d at 442.

13 Id.involved facts sufficient to create a prima facie case, the defendant would already be exposed

to a legal judgment unless he came forward with sufficient facts to explain the plaintiff’s

case. Switching only the burden of production would have had no further effect. In light of

the foregoing, the rule could be reasonably perceived as shifting the burden to the individual

to disprove the presumption. At minimum, even if the EIB rule truly meant to shift only the

burden of production—and nothing else—then the presumptions were unnecessary.

To be clear, discarding the presumptions does not mean that a person who engages in

behavior identified by the presumptions will not be found to be engaged in the business. The

actions identified by the presumptions in EIB provide circumstantial evidence from which a

fact finder could potentially find that a person was engaged in the business. Removing the

EIB rule’s legal presumptions simply prevents this evidence from being given dispositive

effect unless the firearm seller can carry the burden of disproving that he was engaged in the

business.

Furthermore, ATF has not used the EIB rule’s presumptions in civil proceedings,

showing they were in fact unnecessary in practice. An anecdotal survey of ATF’s field

divisions uncovered no instances in which the presumptions were cited in civil proceedings

in the time since the EIB rule became effective. ATF may revoke a license or deny a renewal

application in a civil administrative proceeding if the licensee willfully violated 18 U.S.C.

922(a)(1)(A), which prohibits a person from engaging in the business as a dealer without a

license, or aided and abetted others in willfully engaging in the business of dealing in

firearms without a license. Since publishing the EIB rule in April 2024, ATF has brought two

such proceedings against licensees. A review of these proceedings reflects that none of the

presumptions set forth in 27 CFR 478.13 were cited or referenced by ATF in support of these

actions. Given that the presumptions have not actually proven to be significant to or applied

in ATF proceedings, and likewise do not appear to have had the expected effect of increasing

the number of licensees, see infra, rescinding the presumptions is warranted to preservepublic confidence in ATF proceedings and avoid a perception that such proceedings are or

may be biased.

Moreover, mandatory presumptions have little role in the enforcement of the GCA’s

provisions against dealing without a license. The EIB rule suggested that the presumptions

could be used “to determine whether to deny or revoke a federal firearms license.” 89 FR

28969. But ATF’s administrative adjudications, which usually involve license revocations,

operate only on those who are already licensed. The EIB rule also suggested that they might

have application “in civil asset forfeiture proceedings,” 89 FR 28969, but ATF has no

anecdotal or statistical information that indicates it has used any of the presumptions in a

civil forfeiture matter involving dealing without a license since the EIB rule was published.

As a matter of policy, ATF has concerns about seizing property through the use of regulatory

presumptions.

Individuals who engage in dealing without a license are primarily subject to criminal

sanction. In criminal proceedings, the presumptions were intended to be useful to courts to

the extent that jury instructions could incorporate permissible inferences if the case involved

a fact pattern that matched one of the presumptions. 89 FR 28976, 28982, 29014. But ATF is

not aware of the presumptions facilitating criminal enforcement. As the EIB rule recognized,

see 27 CFR 478.13(h), mandatory presumptions cannot be employed in criminal proceedings.

See Sandstrom v. Montana, 442 U.S. 510 (1979). Further, as with the civil revocation

proceedings mentioned above, ATF is not aware of any criminal proceedings where

presumptions have been invoked as permissible inferences since the EIB rule was published.

Instead of presumptions or permissive inferences, judges may simply instruct jurors on the

factors relevant to determining whether someone is engaged in the business—an instruction

that judges already give. See, e.g., Pattern Jury Instruction, 5th Circuit, 2024 922(a)(1)(A)“engaged in the business”;14 Pattern Jury Instructions, 9th Circuit, 14.3 – 922(a)(1)(A).15

Definition’s scope

Other aspects of the EIB rule may create confusion around conduct that falls outside

the GCA’s definition of being engaged in the business. For example, as discussed in the EIB

rule, courts have stated that an isolated firearm transaction would not require a license when

other factors were not present.16 Nor are persons engaged in the business when they engage

in repeated sales of firearms if the predominant intent is something other than earning a

profit; for example, collectors who buy and sell repeatedly to enhance their personal

collections. See 18 U.S.C. 921(a)(21)(C). In these circumstances, the GCA does not require

persons to obtain a license. Congress made a considered judgment that it did not intend

federal law to extend to the noncommercial, intrastate market. See GCA, Pub. L. No. 90-618,

sec. 101, 82 Stat. 1213, 1213-14 (1968) (reenacted chapter analysis without change)

(declaring that the GCA was enacted to “provide for better control of the interstate traffic of

firearms” and that Congress’ purpose in creating the GCA was “not . . . to place any undue or

unnecessary federal restrictions or burdens on law-abiding citizens with respect to the

acquisition, possession, or use of firearms”)

ATF has been diligent in providing guidance to the licensed and unlicensed

14 A number of factors may be considered in determining whether a defendant was “engaged in the business” of

dealing in firearms, including: (1) the quantity and frequency of sales; (2) the location of the sales; (3)

conditions under which the sales occurred; (4) the defendant’s behavior before, during, and after the sales; (5)

the price charged; (6) the characteristics of the firearms sold; and (7) the intent of the seller at the time of the

sales. United States v. Brenner, 481 F. App’x 124, 127 (5th Cir. 2012) (explaining that “the jury must examine

all circumstances” in determining whether the defendant was “engaged in the business” of dealing in firearms);

see also United States v. Garcia, No. 21-51065, 2023 WL 116727, *1 (5th Cir. Jan. (for recent

application).

15 The Government must prove beyond a reasonable doubt that a defendant “engaged activity than the occasional sale of a hobbyist or collector, and that [the defendant] devoted 5, 2023) and

in a greater degree of

time, attention, labor to selling firearms” as a trade or business with the intent of making profits through the repeated purchase

and sale of firearms. See United States v. King, 735 F.3d 1098, 1106 (9th Cir. 2013) (quoting 18 U.S.C.

921(a)(21)(C)). For a person to engage in the business of dealing in firearms, it is not necessary to prove an

actual sale of firearms.

16 89 FR 28976 (citing United States v. Carter, 203 F.3d 187, 191 (2d Cir. 2000) (“A conviction under 18

U.S.C. § 922(a) ordinarily contemplates more than one isolated gun sale.”)); United States v. Swinton, 521 F.2d

1255, 1259 (10th Cir. 1975) (“Swinton’s sale [of one firearm] to Agent Knopp, standing alone, without more,

would not have been sufficient to establish a violation of Section 922(a)(1). That sale, however, when

considered in conjunction with other facts and circumstances related herein, established that Swinton was

engaged in the business of dealing in firearms.” (internal citation omitted)).communities to ensure they consistently apply the legal standards associated with licensing

requirements.17 Similarly, as the EIB rule explained, there is an established set of case law

that clarifies the factors courts consider regarding whether an individual needs to be licensed.

See, e.g., 89 FR 28976–77, 28978–79, & nn.67–68, 72, 75–77, 82.

ATF recognizes that there is no bright line at which a person may cross the threshold

from engaging in personal sales to being engaged in the business of dealing firearms. The

GCA’s definition of “engaged in the business” is a standard, not a rule. The standard must be

applied to the factual scenario of each case. And as with any standard, there are paradigm

cases on either side, but no perfectly defined line between them. Nor is there any magic

number of sales that can make a person “engaged in the business.” 89 FR 29016. Persons

who sell two firearms can be engaged in the business, if they couple that sale with labor and

intent to engage in repeated commercial transactions for profit.18 Persons who sell 50

17 See ATF, FFL Newsletter at 9 (July 2017), https://www.atf.gov/media/28911/download

[https://perma.cc/34FE-F9TP] (gun show guidelines); ATF, Important Notice to FFLs and Other Participants at

Gun Shows, ATF Information 5300.23A (Rev. June. 2021), https://www.atf.gov/firearms/docs/guide/important-

notice-dealers-and-other-participants-gun-shows-atf-i-530023a/download [https://perma.cc/4PSR-VVD8]; ATF

Revised Ruling 69-59, Sales of firearms and ammunition at gun shows (1969),

https://www.atf.gov/firearms/docs/ruling/1969-59-gunshow-sales-non-licensed-premises/download

[https://perma.cc/A9D4-5RKZ]; ATF, How may a licensee participate in the raffling of firearms by an

unlicensed organization?, https://www.atf.gov/firearms/questions-and-answers?page=10 (last reviewed May 22,

2020); ATF, FFL Newsletter at 8-9 (June 2021), https://www.atf.gov/firearms/docs/newsletter/federal-firearms-

licensee-ffl-newsletter-june-2021/download (addressing conduct of business at firearm raffles); Letter for

Pheasants Forever, from Acting Chief, Firearms Programs Division, ATF, at 1-2 (July 9, 1999) (addressing

nonprofit fundraising banquets); ATF, FFL Newsletter at 4-5 (Feb. 1999),

https://www.atf.gov/media/28801/download [https://perma.cc/36R3-RCB9] (addressing gun shows and events).

See ATF, FFL Newsletter at 5-6 (June 2010), https://www.atf.gov/media/28856/download

[https://perma.cc/LKC9-46BK] (flea market guidelines). See ATF, FFL Newsletter at 8 (June 2021),

https://www.atf.gov/firearms/docs/newsletter/federal-firearms-licensee-ffl-newsletter-june-2021/download

[https://perma.cc/H5KY-5G9T] (addressing internet sales of firearms); ATF, FFL Newsletter at 3 (Sept. 2016),

https://www.atf.gov/media/28906/download [https://perma.cc/KY89-FRMZ] (addressing brokering firearms for

exportation); ATF, FFL Newsletter at 6-7 (Mar. 2023); ATF, FFL Newsletter at 9 (June 2021),

https://www.atf.gov/firearms/docs/newsletter/federal-firearms-licensee-ffl-newsletter-june-2021/download

(discussing social media gun raffles) [https://perma.cc/H5KY-5G9T]; Letter for Outside Counsel to National

Association of Arms Shows, from Chief, Firearms and Explosives Division, ATF, Re: Request for Advisory

Opinion on Licensing for Certain Gun Show Sellers at 1 (Feb. 17, 2017); ATF, ATF Federal Firearms

Regulations Reference Guide, ATF Publication 5300.4, Q&A L1, at 207-08 (2014),

https://www.atf.gov/firearms/docs/guide/federal-firearms-regulations-reference-guide-2014-edition-atf-p-

53004/download [https://perma.cc/KD35-AEXU]; ATF, FFL Newsletter at 3 (May 2001),

https://www.atf.gov/media/28811/download [https://perma.cc/46KY-3VUM] [ (addressing auctioning

firearms); ATF, FFL Newsletter at 7 (1990), https://www.atf.gov/media/28756/download

[https://perma.cc/L8QT-VTX6] (addressing auctioning firearms); and Letter for Editor, CarPac Publishing

Company, from Acting Assistant Director (Regulatory Enforcement), ATF, at 1-2 (July 26, 1979).

18 See King, 735 F.3d at 1107.firearms may not be engaged in the business if they are liquidating their personal collections,

at least in the absence of facts militating in the opposite direction.19 As the Supreme Court

has recognized, Congress may legislate “us[ing] imprecise terms,” Sessions v. Dimaya, 548

U.S. 148, 159 (2018), or a “qualitative standard,” Johnson v. United States, 576 U.S. 591,

604 (2015).

The core concept of being engaged in the business is clear: the intent to engage in a

course of repeated buying and selling predominantly motivated by profit. 18 U.S.C.

921(a)(21)(C). Individuals often meet this standard without question, particularly in cases

that lead to criminal prosecutions. In addition, criminal prosecutions under the GCA require a

showing of a willfulness mens rea, 18 U.S.C. 924(a)(1)(D), which requires showing that an

individual acted with knowledge that the individual’s conduct was unlawful. See Bryan v.

United States, 524 U.S. 184, 189 (1998) (maintaining that “the willfulness requirement of §

924(a)(1)(D) requires knowledge that the conduct is unlawful”). With respect to EIB,

Congress’s preference for an effort- and intent-based definition, over a bright numerical

threshold, does not merit retaining these presumptions as part of the definition or other

supposed clarifications in the EIB rule.

Increasing licensees and background checks

Some critics incorrectly suggested that the prior Administration used the EIB rule to

try to establish “universal background checks” by expanding the statutory definition to

capture additional transactions as retail sales requiring a license.20 But, the GCA allows a

19 See 18 U.S.C. 921(a)(22); see also, e.g.United States v. Mulholland, 702 F. App’x 7, 12 (2d Cir. 2017)

(“The definition does not extend to a person who makes occasional sales for a personal collection or hobby, id.,

and the government need only prove that a person was ‘ready and able to procure [firearms] for the purpose of

selling them from time to time.’” (quoting United States v. Nadirashvili, 655 F.3d 114, 199 (2d Cir. 2011)). But

see United States v. Brenner, 481 F. App’x 124, 127 (5th Cir. 2012) (defendant argued he was liquidating

personal collection, but court held engaged in the business due to facts on sales frequency, location, profit

margins, secretive sales and payments, and references to firearms “coming in” or as “brand new.”).

20 See Devan Cole & Hannah Rabinowitz, Biden administration finalizes rule to close ‘gun show loophole’ in

effort to combat gun violence, CNN Politics (Apr. 11, 2024), https://www.cnn.com/2024/04/11/politics/gun-

show-loophole-rule-finalized-biden-admin; see also Martha Minow, Not Born a Democracy: Constitutional

Preconditions, 67 Wm. & Mary L. Rev. 135, 172 n.176 (2025) (explaining that the Biden Administration

intended the executive order “to move the United States as close to universal background checks as possible

without additional legislation”).non-licensee to transfer a firearm to another non-licensee within the same state without

conducting a background check.21 Both the GCA and FOPA left the noncommercial,

intrastate market primarily regulated by state law. BSCA did not change that basic decision.

BSCA was designed to provide clarification by changing the wording of the statutory

definition about when a person should be licensed. According to BSCA’s sponsors, the Act’s

change to the definition was driven by “confusion about the GCA’s definition of ‘engaged in

the business,’ as it pertained to individuals who bought and resold firearms repetitively for

profit, but possibly not as the principal source of their livelihood.”22 The sponsors

“maintain[ed] that these changes clarif[ied] who should be licensed, eliminating a ‘gray’ area

in the law, ensuring that one aspect of firearms commerce is more adequately regulated.”23

The EIB rule thus could not, and did not, impose universal background check requirements.

And, as discussed, in light of Congress’ changes to carefully crafted clarifications of the

statutory language through BSCA’s amendments, it is unnecessary to supplement or confuse

the statutory language with further regulatory language.

Additionally, ATF has determined that the rule proved ineffective in its attempt to

increase the number of dealer licenses. In the time since the EIB rule went into effect, ATF

has not seen an increase in licenses and background checks. ATF has reviewed the number of

new applications the Federal Firearms Licensing Center received for Type 01 licenses

(Dealer in Firearms Other Than Destructive Devices) for fiscal years (“FYs”) 2021 through

21 18 U.S.C. 922(a)(3), (5) (requiring license to sell out of State); 922(t) (requiring licensees to conduct a

background check).

22 William J. Krouse, Cong. Rsch. Serv., IF12197, Firearms Dealers “Engaged in the Business” 2 (2022).

23 Id.; 168 Cong. Rec. H5906 (daily ed. June 24, 2022) (Statement of Rep. Jackson Lee) (“[O]ur bill would . . .

further strengthen the background check process by clarifying who is engaged in the business of selling firearms

and, as a result, is required to run background checks.”); 168 Cong. Rec. S3055 (daily ed. June 22, 2022)

(Statement of Sen. Murphy) (“We clarify in this bill the definition of a federally licensed gun dealer to make

sure that everybody who should be licensed as a gun owner is. . . . [The definition] is admittedly confusing. So

we simplified that definition and hope that will result—and I believe it will result—in more of these frequent

online gun sellers registering, as they should, as federally licensed gun dealers which then requires them to

perform background checks.”); see also Letter for Director, ATF, et al., from Sens. John Cornyn and Thom

Tillis at 2–3 (Nov. 1, 2022) (“BSCA provides more clarity to the industry for when someone must obtain a

federal firearms dealers license. In Midland and Odessa, Texas, for example, the shooter—who at the time was

prohibited form possessing or owning a firearm under federal law—purchased a firearm from an unlicensed

firearms dealer.”).Fiscal year Type 01 applications Total Type 01 licensees

2021 7,445 52,993

2022 5,619 52,173

4,544 50,314

47,776

2025, the four years preceding the EIB rule, and the one year since the rule was published.

See Table 1. Once issued, a federal firearms license is valid for a three-year period unless

terminated sooner, so there are more total Type 01 licensees in each year than the number of

applications persons submit to ATF in the same year. 18 U.S.C. 923(c), 27 CFR 478.49.

Table 1. Number of Type 01 dealer applications 2021-2025

2023 2024 2025 4,350 4,160 46,072

As Table 1 indicates, since FY 2021, there has been a decrease in both applications

for Type 01 licenses and the total number of Type 01 licensees in each fiscal year. The EIB

rule was intended to facilitate the recognition by more people that they must acquire a

license, which ATF expected would increase the number of persons becoming licensed as

dealers. However, that expected outcome has not occurred since the EIB rule became

effective. Instead, the number of Type 01 applications filed after the EIB rule continued to

decline, as did the number of Type 01 licensees. In FY 2024, ATF received 4,350 Type 01

applications and listed 47,776 Type 01 licensees. In FY 2025, ATF received a total of 4,160

Type 01 applications and listed 46,072 Type 01 licensees. As a result, contrary to ATF’s

intended expectation from the EIB rule, the EIB rule did not result in an increase in Type 01

licensees.

Personal collection

The EIB rule created a general definition of “personal collection” in 27 CFR 478.11

to identify the kinds of firearms that fall into the statutory exception to the definition of

engaged in the business. Section 478.13(a) states that the term “engaged in the business”

does 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 the

person’s personal collection of firearms.” This exception mirrors the statutory text, whichcreated this narrow, predetermined exception to the general rule that applies to all firearms

(and which still only requires a license if a person devotes time, attention, and labor to

repetitively purchasing and reselling firearms in the regular course of business with

predominant intent to profit). This narrow statutory exception to the general rule was created

by Congress to recognize that persons who collect firearms or own them for hobby purposes

might occasionally purchase and resell those firearms to enhance or liquidate their collection

and would be unlikely to be doing so as a profit-making course of business.

The general rule in the statute sets out a test for determining when firearms are being

sold in such a manner as to qualify as being engaged in the business. That test includes, as a

key element, intending predominantly to earn a profit from purchasing and reselling

firearms—without distinguishing what kind of firearm, who owns the firearm, or listing all

the other reasons persons might own the firearms. It is only in the exception that Congress

specified a particular set of firearms owned for particular purposes—personal collecting or

hobbies—which, if resold only occasionally, would automatically be treated as not being

engaged in the business.

The EIB rule added two parts to the definition of “personal collection” in § 478.11.

First, the rule defined “personal collection” to mean “[p]ersonal firearms that a person

accumulates for study, comparison, exhibition (e.g., collecting curios or relics, or collecting

unique firearms to exhibit at gun club events), or for a hobby (e.g., noncommercial,

recreational activities for personal enjoyment, such as hunting, skeet, target, or competition

shooting, historical re-enactment, or noncommercial firearms safety instruction).” Second,

the rule provided: “In addition, the term shall not include firearms accumulated primarily for

personal protection: Provided, that nothing in this definition shall be construed as precluding

a person from lawfully acquiring firearms for self-protection or other lawful personal use.”

There are strong arguments that the rule improperly attempted to narrow the categories of

accumulated firearms that would constitute a collection.The EIB rule adopted a narrower conception of what purposes in gathering firearms

might qualify for a “personal collection” by reading “personal collection” in 18 U.S.C.

921(a)(21)(C) with reference to the definition of “collector” in section 921(a)(13). On

reflection, ATF believes that that interpretation overreads section 921(a)(13). Although the

words have the same root (“collect”), the definition of “personal collection” in section

921(a)(21)(C) materially differs from the definition of “collector” in section 921(a)(13)

because of the separate functions that each provision serves. The function of “collector” and

“licensed collector” in paragraph (a)(13) is to designate a person who collects a limited class

of historical firearms (those defined as “curios or relics”), for which the GCA establishes

special licensing rules to facilitate noncommercial interstate buying and selling. In contrast,

the function of “personal collection” in section 921(a)(21)(C) is to create a safe harbor for

when an individual sells multiple firearms that he had previously accumulated for personal,

noncommercial use—with for personal, noncommercial use being the key distinction.

Consequently, there is no inconsistency between understanding “personal collection” to

mean firearms held by a person for private, noncommercial purposes, while recognizing that

certain types of collectors do not qualify as statutory “collectors” and, thus, cannot utilize the

special licensing provisions for those who collect curio and relic firearms. This definition

also harmonizes the GCA provision for licensees to have a “personal collection of firearms,”

18 U.S.C. 923(c)—that is, firearms the licensee maintains for personal, noncommercial use.

The EIB rule rested its amendments, in part, on narrow definitions of “collection.”

See 89 FR 28980 and n.88 (relying on Merriam-Webster’s definition to restrict a personal

collection to only those objects “gathered for study, comparison, or exhibition or as a

hobby”); 89 FR 29038, n.216 (relying on Encyclopedia Britannica’s definition, ‘‘a group of

interesting or beautiful objects brought together in order to show or study them or as a

hobby’’). Given these narrow definitions, the Department previously concluded that a

personal collection is limited to firearms “that a person accumulates for study, comparison,exhibition . . ., or for a hobby.” 27 CFR 478.11. Indeed, the Department specifically excluded

“firearms accumulated primarily for personal protection” as not part of a personal collection.

Id.

ATF now believes that the definitions identified by the EIB rule are too restrictive.

Individuals are engaged in the business when their relationship with the firearms is primarily

commercial—they are buying and selling for profit rather than for personal, noncommercial

use for self-defense, target shooting, gun collecting, hunting, and other lawful uses. To avoid

any contrary suggestion, ATF proposes rescinding subsection (1) of the definition.

Although ATF proposes rescinding subsection (1) of the definition of “personal

collection,” ATF believes subsection (2) of the definition, which defines licensee personal

collections, clearly and informatively sets out the actions licensees can take to distinguish a

personal firearm from a business one and comply with 18 U.S.C. 921(a)(21)(C). This aspect

of the definition provides greater clarity that aids the public in complying with the statute,

and ATF is therefore proposing to retain this portion of the definition.

Former licensee inventory

In conjunction with the licensee personal collection definition, the EIB rule also

added a definition in § 478.11 for “former licensee inventory” and set out guidelines a

licensee must follow to dispose of its firearms inventory when it is discontinuing business,

particularly if its license is revoked. The regulation treats all firearms purchased as part of a

licensee’s business inventory while licensed as retaining that classification indefinitely

because “they were purchased repetitively before the license was terminated as part of a

licensee’s business inventory with the predominant intent to earn a profit.” This definition,

together with §§ 478.57 (discontinuance of business) and 478.78 (operations by licensee after

notice), limits a former licensee to disposing of the inventory within 30 days after it

discontinues business and effectively prevents former licensees from reclassifying inventory

purchased repetitively with the intent to resell for profit while licensed as personal firearmsin a “personal collection” after they become unlicensed. See 27 CFR 478.57(b)(2) (providing

that a licensee may “[t]ransfer the former licensee inventory to a responsible person of the

former licensee to whom the receipt, possession, sale, or other disposition is not prohibited

by law,” but that any such transfer “does not negate the fact that the firearms were

repetitively purchased, and were purchased with the predominant intent to earn a profit by

repetitive purchase and resale”). The EIB rule explicitly authorized former licensees to sell

firearms only (1) “within 30 days [of termination of a license], or such additional period

approved by the Director for good cause,” or (2) on an “occasional” basis “thereafter to a

licensee.” 27 CFR 478.78(b)–(c). In other words, outside the 30-day window (and barring an

extension for good cause), former licensees were restricted from selling business inventory to

anyone, except for occasional sales to current FFLs.

Although some process for addressing the inventory of former licensees is

appropriate, the effectively permanent restraint on firearms sales after the 30-day period is

arguably unlawful. For example, upon winding down operations, a former licensee could

absorb twenty firearms from his business inventory into his personal collection in good faith.

A former licensee who sold one or two such firearms years later to a non-licensee would not

be engaged in the business under the statutory definition, and the GCA does not by its terms

restrict occasional sales of such firearms only to other FFLs. Such conduct stands in contrast

to a former licensee who immediately continues selling firearms acquired as business

inventory in repeated transactions after his license is discontinued. ATF recognizes concerns

about former licensees attempting to hold “fire sales” of large swathes of inventory without

adhering to recordkeeping and background check requirements. However, such scenarios are

clearly covered by statutory language, which prohibits engaging in the business without a

license.24 By contrast, a situation where a former licensee sells an occasional firearm in a

24 See Gilbert v. Bangs, 481 F. App’x 52 (4th Cir. 2012); United States v. Kish, 424 F. App’x 398 (6th Cir.

2011).private sale years later does not constitute the repetitive purchasing and selling that the GCA

was intended to cover. The GCA does not authorize former licensees to engage in the

business. But it also does not impose encumbrances on all firearms that were previously part

of a business’s inventory.

For all these reasons, this rule proposes to amend regulations in 27 CFR part 478 that

were created or changed by the EIB rule as described below.

B. Proposed revisions

For the reasons discussed above, ATF is proposing the following regulatory changes

related to the definition of engaged in the business as a dealer as implemented in §§ 478.11

and 478.13 via the EIB rule. ATF proposes to (1) move the current definition of “engaged in

the business as a dealer in firearms other than a gunsmith or pawnbroker,” set forth in §§

478.13(a) to 478.11, and (2) rescind § 478.13(b)–(h). Paragraphs (b) through (h) of § 478.13

include: (b) a statement that whether a person is engaged in the business as a dealer in

firearms other than a gunsmith or a pawnbroker is a fact-specific inquiry, (c) specific fact-

patterns establishing presumption that a person is engaged in the business as a dealer, (d) the

definition of “predominantly earn a profit,” (e) a list of conduct that does not support a

presumption, (f) evidence that may be used to rebut a presumption, (g) clarification that

itemized presumptions, conduct, and rebuttal evidence are not exhaustive lists, and (h)

clarification that the rebuttable presumptions do not apply to criminal proceedings.

ATF also proposes to retain the definition of “predominantly earn a profit” from §

478.13, with some revisions, and move it to § 478.11. The rest of § 478.13 would be

removed, except as provided in the following paragraph. ATF is also proposing to change the

definition of “personal collection” and remove the definition of “former licensee inventory,”

both in § 478.11. These proposed changes are described in detail below.

ATF proposes removing all of § 478.13 except: (1) the portion of the definition of

“engaged in the business as dealer in firearms other than gunsmith or pawnbroker” thatduplicates statutory language in 18 U.S.C. 921(a)(21)(C); (2) the added exception for

auctioneers who provide only auction services on a commission by assisting persons to

liquidate firearms in an estate-type sale;25 and (3) a revised version of the definition of

“predominantly earn a profit.” Because these remaining portions of § 478.13 would no longer

be long enough to warrant a separate definition section, ATF proposes moving all three of

these remaining portions from § 478.13 to § 478.11 (meaning of terms), where other

relatively short definitions are located.

ATF would place the definition of engaged in the business as a dealer under

paragraph (3) in the definition of “engaged in the business,” and the existing language in

paragraph (3), which references § 478.13, would be removed. The paragraph would retain the

same heading and would read, “A person who devotes time, attention, and labor to dealing in

firearms as a regular course of trade or business to predominantly earn a profit through the

repetitive purchase and resale of firearms. The term does not include a person who makes

occasional sales, exchanges, or purchases of firearms to enhance a personal collection or for

a hobby, or who sells all or part of the person’s personal collection of firearms.”

ATF would also move the auctioneer exception to paragraph (3) within the definition

of “engaged in the business” under § 478.11, at the end of the new paragraph described

above. Historically, licensees and non-licensees seeking guidance on the proper and lawful

way to liquidate firearms, both in the regular course of their business or as an isolated

occurrence, have commonly raised questions about auctioneers. Because ATF has regularly

provided consistent guidance on what type of auction activity crosses the threshold to

25 See ATF, Does an Auctioneer Who Is Involved in Firearms Sales Need a Dealer’s License?,

https://www.atf.gov/firearms/questions-and-answers?page=2 (last reviewed July 10, 2020); ATF, ATF Federal

Firearms Regulations Reference Guide, ATF Publication 5300.4, Q&A L1, at 207-08 (2014),

https://www.atf.gov/firearms/docs/guide/federal-firearms-regulations-reference-guide-2014-edition-atf-p-

53004/download [https://perma.cc/KD35-AEXU]; ATF, FFL Newsletter at 3 (May 2001),

https://www.atf.gov/media/28811/download [https://perma.cc/46KY-3VUM] ; ATF Ruling 96-2, Engaging in

the Business of Dealing in Firearms (Auctioneers) (Sept. 1996), https://www.atf.gov/file/55456/download

[https://perma.cc/RCJ2-QA9H]; ATF, FFL Newsletter at 7 (1990), https://www.atf.gov/media/28756/download

[https://perma.cc/L8QT-VTX6]; Letter for Editor, CarPac Publishing Company, from Acting Assistant Director

(Regulatory Enforcement), ATF, at 1–2 (July 26, 1979).constitute engaging in the business of dealing in firearms, the portion of the definition that

incorporates that exception into the regulation provides definitional clarity to the public and

licensed community. Therefore, ATF proposes retaining the portion of § 478.13 that codifies

ATF’s historical position, thus ensuring consistency for industry members. Modifying or

removing this part of the definition would likely cause undue and unnecessary confusion.

This proposed change would therefore add the following text to the end of paragraph (3): “In

addition, the term does not include an auctioneer who provides only auction services on

commission to assist in liquidating firearms at an estate-type auction, as long as the

auctioneer does not purchase the firearms or take possession of the firearms for sale or

consignment.”

ATF would move the text of the definition in § 478.13 of “predominantly earn a

profit” to a location under the same definitional heading in § 478.11, and it would remove the

text currently under that heading, which references § 478.13. It is necessary to retain this

definition to distinguish between, on the one hand, what constitutes engaging in the business

as a dealer in firearms other than a gunsmith or pawnbroker; and, on the other hand, engaging

in the business as a gunsmith, pawnbroker, manufacturer, or importer—all of which continue

to require the “principal objective of livelihood and profit” that applied to dealers prior to

BSCA. The definition of “predominantly earn a profit” tracks the statutory definition;

however, ATF proposes making a minor change to one sentence of the definition, so it is

easier to read, without changing the meaning. Specifically, ATF proposes changing the

sentence, “Provided, that proof of profit, including the intent to profit, shall not be required

as to a person who engages in the regular and repetitive purchase and disposition of firearms

for criminal purposes or terrorism,” to “However, proof of profit, including the intent to

profit, is not required in cases in which the person engaged in regular and repetitive purchase

and disposition of firearms for criminal purposes or terrorism.” This change is in line with

one of the purposes for ATF’s implementing regulations, which is to aid the public inunderstanding and complying with statutory provisions, and it is consistent with laws

requiring plain writing. It does not modify or expand on the statutory meaning.

In addition, ATF proposes to remove the last sentence of the definition as it currently

exists in § 478.13, which reads, “For purposes of this section, a person may have the intent to

profit even if the person does not actually obtain the intended pecuniary gain from the sale or

disposition of firearms,” because this sentence is not in the statutory definition. The proposed

new definition of “predominantly earn a profit” would thus be “The intent underlying the sale

or disposition of firearms is predominantly one of obtaining pecuniary gain, as opposed to

other intents, such as improving or liquidating a personal firearms collection. However, proof

of profit, including the intent to profit, is not required in cases in which the person engaged in

the regular and repetitive purchase and disposition of firearms for criminal purposes or

terrorism.”

In addition to the above changes to § 478.13, ATF proposes two changes directly to §

478.11. Specifically, for the reasons discussed in section II.A of this preamble, ATF proposes

removing paragraph (1) of the definition of “personal collection (or personal collection of

firearms, or personal firearms collection),” moving paragraph (2) up to replace paragraph (1)

with changes necessary to conform it to regulatory paragraph designations, changing the

definition’s title to reflect the remaining content, and removing the definition “former

licensee inventory” entirely. The proposed heading for the definition of “personal collection

(or personal collection of firearms, or personal firearms collection)” would instead be

“licensee personal collection (or personal collection of licensee).” The rest of the definitional

text would remain the same as currently in § 478.13, but the paragraph designation would

change because it would no longer be paragraph (2).

In addition, the rule proposes to make changes to § 478.57 (Discontinuance of

business). The proposed rule would remove from paragraphs § 478.57(b)(2) and (c) the

relevant sentences that effectively restrict former licensees from reselling their firearmswithout being presumed to be engaged in the business. Specifically, it would remove from §

478.57(b)(2) the sentence that reads: “Any such transfer, however, does not negate the fact

that the firearms were repetitively purchased, and were purchased with the predominant

intent to earn a profit by repetitive purchase and resale.” And it would remove from §

478.57(c) the second sentence that provides that a former FFL who resells any of its former

business inventory is subject to the provisions of § 478.13. Because this rule proposes to

remove § 478.13, the provisions in these paragraphs would no longer be relevant. And

because these provisions are also found in § 478.78 (Operations by licensee after notice), this

rule proposes to remove from § 478.78(b)(2) and (c) the same sentences.

III. Statutory and Executive Order Review

A. Executive Orders 12866 and 13563

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess

the costs and benefits of available regulatory alternatives and, if regulation is necessary, to

select regulatory approaches that maximize net benefits.

Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes

the importance of agencies quantifying both costs and benefits, reducing costs, harmonizing

rules, and promoting public flexibility.

This proposed rule would retain the definition of “engaged in the business” as

specifically revised and defined in BSCA. In addition, this proposed rule would revise 27

CFR 478.13 to rescind paragraphs (b)–(h), which includes rebuttable presumption fact

patterns as to whether a person is engaged in the business as a dealer and whether a person

has predominant intent to profit, a list of conduct that does not support a presumption,

evidence that may be used to rebut a presumption, and other provisions related to applying

the presumptions. In addition, the rule also proposes to retain the definition of

“predominantly earn a profit” with some revisions, to change the definition of “personal

collection” to apply only to licensee personal collections and remove the definition of“former licensee inventory.” These provisions were included in the EIB rule to aid persons in

understanding and applying the statutory change from BSCA. In addition, the EIB rule did

not result in the anticipated increase in the number of licensees. As a result, removing or

revising these additional provisions does not generate a cost to the public.

The Office of Management and Budget (“OMB”) has determined that, although this

rule would not be economically significant under section (3)(f)(1) of Executive Order 12866,

it would be a “significant regulatory action” under the Order. OMB has therefore reviewed

this rule. ATF provides the following analysis to comply with Executive Orders 12866 and

13563. This proposed rule would revert the definition of “engaged in the business” to the one

outlined specifically by statute, without the additional provisions added by the previous rule.

As a result, this proposed rule would provide qualitative benefits to the public in the form of

reduced confusion and reduced concerns about perceived risk of over-enforcement, as well as

qualitative costs in the form of potential increase in persons who should be licensed

remaining unlicensed. This rule would not create quantifiable costs or burdens for the public.

1. Need statement

The EIB rule included provisions in addition to the statutory definitional change from

BSCA, and those provisions did not result in the projected increase in licensees. As

illustrated in Table 2, the number of all FFL applications has been decreasing since 2021.

Between the time the NPRM for the EIB rule was published in 2023 and was later finalized

in 2024, the number of applications for all FFLs decreased overall.

Table 2. Number of FFL applications by year

Year FFL applications

2020 12,537

2021 13,879

2022 10,811

2023 9,237

2024 8,679

2025 8,648The intended clarifying provisions instead created confusion and raised concerns by

commenters on the rule that the provisions could be misapplied and misunderstood in ways

that would constitute violations of law. As a result, ATF has determined that these provisions

should be removed or revised and that the definition of engaged in the business as a dealer

should be primarily limited to the statutory definition. The only way to make these regulatory

adjustments is through a rulemaking.

2. Cost Savings

This proposed rule would align with the definition of “engaged in the business” as

defined in the statute. As discussed in section II.A of this preamble, many firearms sales fall

outside the GCA’s definition of being engaged in the business. Nor are persons engaged in

the business if they repeatedly buy and sell primarily in order to maintain and enhance their

personal firearms collection rather than for profit. One of the qualitative cost savings of the

proposed rule is that it would reduce confusion and reduce the perceived risk of over-

enforcement. ATF, however, lacks the data necessary to quantify such savings.

Based on the historical data in Table 1 above, there were no incremental increases in

FFL dealer applications in the year and a half since the EIB rule was published; therefore, the

projected costs of that original rule, see 89 FR 29072–73 (analyzing expected costs for

unlicensed persons to become licenses), were not incurred. Furthermore, this rule would

maintain the minimum definitions as required by the statute. Costs arising from these

statutory definitions were already accounted for in the EIB rule. As a result, this proposed

rule would not have any quantifiable monetary cost savings.

3. Disbenefits

Potential qualitative disbenefits (i.e., adverse impacts) to this proposed rule may

include a de minimis increase in risk to public safety. In the EIB rule, ATF described

conditions in which an individual might be considered “engaged in the business” of selling

firearms. Some individuals who might have been active firearms sellers prior to the EIB rulemight have refrained from selling firearms after the EIB rule out of concern that their

conduct rose to the level of being “engaged in the business” because it would subject them to

the GCA’s requirements (e.g., record-keeping, conducting background checks, inspections).

If parts of the regulations implemented by the EIB rule are rescinded, these persons might

resume selling firearms actively without becoming licensed, just as they had prior to

publication of the EIB rule. This could mean that any risks regarding unlicensed sellers that

Congress perceived when initially enacting the GCA would not be addressed through

regulations clarifying the GCA’s requirements.

4. Regulatory alternatives

Alternative 1. Maintaining the status quo (the no-action alternative).

During the previous Administration, ATF published the EIB rule, in which ATF

included the statutorily revised definition of engaged in the business as a dealer and

additional regulatory provisions to further define and clarify the term and how persons could

determine its application. Upon further consideration, ATF has determined that the ensuing

confusion from these additional provisions may impose additional risks on members of the

public, who might interpret the rule as prohibiting them from purchasing firearms for self-

defense or protection and might make them feel chilled in purchasing and reselling personal

firearms occasionally without predominant intent to profit, as intended by Congress. Because

these provisions were added to ATF’s regulations, they would remain in effect unless ATF

were to engage in rulemaking to revise them. Therefore, ATF rejects maintaining the status

quo as an alternative due to the risk of chilling lawful firearms activities.

Alternative 2. Rulemaking (the proposed alternative).

ATF considered the alternative of rulemaking to revise or remove non-statutorily

required provisions in the current regulatory definition of engaged in the business as a dealer.

This would cause the regulatory definition to consist primarily of the statutory definition as

revised by Congress in BSCA. Based on historical data, there would be no additionalquantifiable costs or benefits incurred to the public from this proposed alternative. Revising

these regulatory provisions may reduce confusion that the added regulatory provisions may

have caused; however, it could conversely increase risk from active sellers, who are not

licensed, who resume sales and thus do not conduct background checks to ensure that

prohibited persons do not acquire firearms on the secondary market. Nevertheless, ATF

believes that the potential impact on public safety is de minimis. A solution, such as

guidance, would not have the same effect on existing regulatory provisions, as guidance

cannot contradict the regulations. As a result, ATF has determined that rulemaking is the best

alternative and the only way to remove the provisions that were causing confusion.

Alternative 3. Issuing guidance.

This alternative was considered but rejected. While this alternative would not impose

any additional costs, it would not rescind the presumptions currently published in regulation

or correct the other issues with the regulatory supplement to the “engaged in the business”

definition. As mentioned above, maintaining the legal presumptions in regulations would

continue to create concerns among the regulated public that ATF is illegitimately attempting

to relieve the Government of its burden of proof in civil and administrative proceedings. One

court has already opined that the presumptions are highly problematic because “they flip the

statute on its head by requiring that firearm owners prove innocence rather than the

government prove guilt.”26 Thus, ATF has determined that removing presumptions from the

regulations avoids the risk that, in real-world practice, the presumptions could have been

used to relieve the Government of its burden of proof. Leaving the presumptions in the

regulations while issuing guidance alone would not remedy the problems as discussed.

Therefore, issuing guidance as an alternative in lieu of removing the regulatory language at

issue was rejected.

B. Executive Order 14192

26 Texas v. ATF, 737 F. Supp. 3d at 442.Executive Order 14192 (Unleashing Prosperity Through Deregulation) requires an

agency, unless prohibited by law, to identify at least ten existing regulations to be repealed or

revised when the agency publicly proposes for notice and comment or otherwise promulgates

a new regulation that qualifies as an Executive Order 14192 regulatory action (defined in

OMB Memorandum M-25-20 as a final significant regulatory action under section 3(f) of

Executive Order 12866 that imposes total costs greater than zero). In furtherance of this

requirement, section 3(c) of Executive Order 14192 requires that any new incremental costs

associated with such new regulations must, to the extent permitted by law, also be offset by

eliminating existing costs associated with at least ten prior regulations. However, this

proposed rule would not be an Executive Order 14192 regulatory action. Although it would

be a significant regulatory action as defined by Executive Order 12866, it would not impose

total costs greater than zero. This proposed rule would provide qualitative benefits by

reducing confusion and concerns about perceived over-enforcement, specifically entailing

qualitative benefits to current and future firearm owners. Although it is possible that

removing the proposed provisions would result in some risk to public safety from persons

who would no longer feel constrained in dealing in firearms without a license, such a risk is

qualitative and speculative, imposing no quantifiable costs. Therefore, as discussed above,

this rule would not impose any additional quantifiable monetized costs, and total costs would

be less than zero. ATF therefore expects this rule, if finalized as proposed, to qualify as an

Executive Order 14192 deregulatory action (defined by OMB Memorandum M-25-20 as a

final action that imposes total costs less than zero).

C. Executive Order 14294

Executive Order 14294 (Fighting Overcriminalization in Federal Regulations)

requires agencies promulgating regulations with criminal regulatory offenses potentially

subject to criminal enforcement to explicitly describe the conduct subject to criminal

enforcement, the authorizing statutes, and the mens rea standard applicable to each elementof those offenses. This proposed rule would not create a criminal regulatory offense and is

thus exempt from Executive Order 14294 requirements.

D. Executive Order 13132

This proposed rule would not have substantial direct effects on the states, the

relationship between the federal Government and the states, or the distribution of power and

responsibilities among the various levels of government. Therefore, in accordance with

section 6 of Executive Order 13132 (Federalism), the Director has determined that this

proposed rule would not impose substantial direct compliance costs on state and local

governments, preempt state law, or meaningfully implicate federalism. It thus does not

warrant preparing a federalism summary impact statement.

E. Executive Order 12988

This proposed rule meets the applicable standards set forth in sections 3(a) and

3(b)(2) of Executive Order 12988 (Civil Justice Reform).

F. Regulatory Flexibility Act

the Regulatory required Under a regulatory Flexibility Act (“RFA”), 5 U.S.C. 601–612, agencies are

to conduct flexibility analysis of any proposed rule subject to notice-

and-comment rulemaking requirements unless the agency head certifies, including a

basis, that the impact on proposed rule statement of the factual small entities. Small would not have a significant economic

a substantial number of entities include certain small

businesses, small not-for-profit organizations that are independently owned and operated and

are not dominant in their fields, and governmental jurisdictions with populations of less than

50,000.

The Director certifies, after consideration, that this proposed rule would not have a

significant economic impact on a substantial number of small entities. This proposed rule is

deregulatory and would not impose any additional costs, including on small entities. The

proposed rule would remove or amend certain provisions related to the definition of engagedin the business as a dealer, the provisions of which expanded the scope of the definition

beyond the statute. The confusion and perceptions about these provisions have caused many

individuals to believe they might have to obtain a license in order to sell personal firearms

from their personal collections, for example. Although the EIB rule anticipated that the rule

would cause some persons operating unlicensed small businesses to become licensed as

dealers of firearms, ATF—as explained above in section II.A of this preamble—has not

observed an actual increase in the rate of licensure since the issuance of the EIB rule. In light

of the EIB rule’s apparent lack of effect on the operation of small businesses, ATF does not

believe that repealing certain provisions of EIB rule as proposed in this rule would affect

such businesses. Therefore, ATF does not believe that this proposed rule, if finalized, would

have a significant economic impact on a substantial number of small entities. ATF

nonetheless welcomes comments on any potential effects of this proposed rule on small

entities.

G. Unfunded Mandates Reform Act of 1995

This proposed rule does not include a federal mandate that might result in the

expenditure by state, local, and tribal governments, in the aggregate, or by the private sector,

of $100 million or more in any one year, and it would not significantly or uniquely affect

small governments. Therefore, ATF has determined that no actions are necessary under the

provisions of the Unfunded Mandates Reform Act of 1995.

H. Paperwork Reduction Act of 1995

Under the Paperwork Reduction Act of 1995 (“PRA”), 44 U.S.C. 3501–3521,

agencies are required to submit to OMB, for review and approval, any information collection

requirements a rule creates or any impacts it has on existing information collections. An

information collection includes any reporting, record-keeping, monitoring, posting, labeling,

or other similar actions an agency requires of the public. See 5 CFR 1320.3(c). This proposed

rule would impact four existing information collections covered under the PRA. Althoughthis rule involves the existing information collections, the proposed changes to the rule would

not add to or change the burden imposed on the information collection respondent as

compared to existing, OMB-approved requirements.

Licensing Information Collection Requirements (“ICRs”)

Numbers and titles: OMB control number 1140-0018, Application for a Federal

Firearms License, ATF Form 5310.12/ 5310.16 (“Form 7/7CR”), and OMB control number

1140-0019, Application for a Federal Firearms License — Renewal Application, ATF Form

5310.11 (“Form 8”)

Abstract: 18 U.S.C. chapter 44 prohibits any person from engaging in the business of

importing, manufacturing, or dealing in either firearms or ammunition without first obtaining

a license to do so. These activities are licensed for a specific period. The statute also provides

for a collector’s license. Persons who need to obtain a license submit Form 7/7CR to ATF,

and licensees who wish to continue to engage in the aforementioned firearms activities

without interruption, must renew their license by filing Form 8 before the current license

period expires.

Purpose: ATF uses Form 7 to identify the applicant and determine eligibility to

obtain a firearms license, and ATF uses Form 8 to identify the applicant and determine

eligibility to retain the license. Without these information collections, ATF would not be able

to issue or renew licenses to persons required by law to have a license to engage in the

business of dealing in firearms or shipping or transporting firearms in interstate or foreign

commerce in support of that business, or acquire curio and relic firearms from out of state.

The proposed rule does not change the requirements or purposes covered under these

information collections.

Record-keeping ICRs

Numbers and titles: OMB control number 1140-0020, Firearms Transaction Record,

ATF Form 5300.9 (“Form 4473”), and OMB control number 1140-0032, Records ofAcquisition and Disposition, Dealers of Type 01/02 Firearms, and Collectors of Type 03

Firearms

Abstract: 18 U.S.C. 922 and 923, and implementing regulations at 27 CFR 478.124,

prohibit certain persons from shipping, transporting, receiving, or possessing firearms. All

persons, including FFLs, are therefore prohibited from transferring firearms to such persons.

FFLs are also subject to additional restrictions on disposing of a firearm to an unlicensed

person under the GCA. For example, age and State of residence also determine whether a

person may lawfully receive a firearm. Form 4473 enables FFLs to determine if they may

lawfully sell or deliver a firearm to the prospective transferee, and to alert the buyer or other

transferee of certain restrictions on receiving and possessing firearms. The licensee must

determine the transaction’s lawfulness and maintain proper records of the transaction. The

GCA, 18 U.S.C. 923, also requires that licensees must keep records of each firearm they

acquire and dispose of, and ATF implementing regulations in 27 CFR 478.23(c)(1) and (2)

set forth the details required for those records, which are in addition to the Form 4473, the

purpose of which is primarily for a licensee to determine whether the requested sale is lawful.

Purpose: The Form 4473 information collection aids licensees in obtaining the

necessary information from which to make that determination and to use when submitting a

required NICS background check, and also serves as a record of the transaction, all of which

are necessary for the licensee to comply with the statutory requirements. The acquisition and

disposition record-keeping requirements ICR permits ATF to examine records during

inspections to ensure that licensees are complying with statutory and regulatory

requirements, and also serve as records licensees may search in response to a crime-gun trace

request from law enforcement agencies conduction investigations into crimes in which a

firearm was used.

IV. Public Participation

A. Comments soughtATF requests comments on the proposed rule from all interested persons. ATF

specifically requests comments on the clarity of this proposed rule and how it may be made

easier to understand. In addition, ATF requests comments on the costs or benefits of the

proposed rule and on the appropriate methodology and data for calculating those costs and

benefits.

All comments must reference this document’s RIN 1140-AB01 and, if handwritten,

must be legible. If submitting by mail, you must also include your complete first and last

name and contact information. If submitting a comment through the federal e-rulemaking

portal, as described in section IV.C of this preamble, you should carefully review and follow

the website’s instructions on submitting comments. Whether you submit comments online or

by mail, ATF will post them online. If submitting online as an individual, any information

you provide in the online fields for city, state, zip code, and phone will not be publicly

viewable when ATF publishes the comment on https://www.regulations.gov. However, if you

include such personally identifying information (“PII”) in the body of your online comment,

it may be posted and viewable online. Similarly, if you submit a written comment with PII in

the body of the comment, it may be posted and viewable online. Therefore, all commenters

should review section IV.B of this preamble, “Confidentiality,” regarding how to submit PII

if you do not want it published online. ATF may not consider, or respond to, comments that

do not meet these requirements or comments containing excessive profanity. ATF will retain

comments containing excessive profanity as part of this rulemaking’s administrative record,

but will not publish such documents on https://www.regulations.gov. ATF will treat all

comments as originals and will not acknowledge receipt of comments. In addition, if ATF

cannot read your comment due to handwriting or technical difficulties and cannot contact

you for clarification, ATF may not be able to consider your comment.

ATF will carefully consider all comments, as appropriate, received on or before the

closing date.B. Confidentiality

ATF will make all comments meeting the requirements of this section, whether

submitted electronically or on paper, and except as provided below, available for public

viewing on the internet through the federal e-rulemaking portal, and subject to the Freedom

of Information Act (5 U.S.C. 552). Commenters who submit by mail and who do not want

their name or other PII posted on the internet should submit their comments with a separate

cover sheet containing their PII. The separate cover sheet should be marked with

“CUI//PRVCY” at the top to identify it as protected PII under the Privacy Act. Both the

cover sheet and comment must reference this RIN 1140-AB01. For comments submitted by

mail, information contained on the cover sheet will not appear when posted on the internet

but any PII that appears within the body of a comment will not be redacted by ATF and may

appear on the internet. Similarly, commenters who submit through the federal e-rulemaking

portal and who do not want any of their PII posted on the internet should omit such PII from

the body of their comment and any uploaded attachments. However, PII entered into the

online fields designated for name, email, and other contact information will not be posted or

viewable online.

A commenter may submit to ATF information identified as proprietary or

confidential business information by mail. To request that ATF handle this information as

controlled unclassified information (“CUI”), the commenter must place any portion of a

comment that is proprietary or confidential business information under law or regulation on

pages separate from the balance of the comment, with each page prominently marked

“CUI//PROPIN” at the top of the page.

ATF will not make proprietary or confidential business information submitted in

compliance with these instructions available when disclosing the comments that it receives,

but will disclose that the commenter provided proprietary or confidential business

information that ATF is holding in a separate file to which the public does not have access. IfATF receives a request to examine or copy this information, it will treat it as any other

request under the Freedom of Information Act (5 U.S.C. 552). In addition, ATF will disclose

such proprietary or confidential business information to the extent required by other legal

process.

C. Submitting comments

Submit comments using either of the two methods described below (but do not

submit the same comment multiple times or by more than one method). Hand-delivered

comments will not be accepted.

• Federal e-rulemaking portal: ATF recommends that you submit your comments to

ATF via the federal e-rulemaking portal at https://www.regulations.gov and follow the

instructions. Comments will be posted within a few days of being submitted. However, if

large volumes of comments are being processed simultaneously, your comment may not be

viewable for up to several weeks. Please keep the comment tracking number that is provided

after you have successfully uploaded your comment.

• Mail: Send written comments to the address listed in the ADDRESSES section of this

document. Written comments must appear in minimum 12-point font size, include the

commenter’s first and last name and full mailing address, and may be of any length. See also

section IV.B of this preamble, “Confidentiality.”

D. Request for hearing

Any interested person who desires an opportunity to comment orally at a public

hearing should submit his or her request, in writing, to the Director within the 90-day

comment period. The Director, however, reserves the right to determine, in light of all

circumstances, whether a public hearing is necessary.

Disclosure

Copies of this proposed rule and the comments received in response to it are available

through the federal e-rulemaking portal, at https://www.regulations.gov (search for RIN1140-AB01).

Severability

Consistent with the Administrative Procedure Act, the issues raised in this proposed

rule may be finalized, or not, independently of each other, after consideration of comments

received. ATF has determined that this proposed rule implements and is fully consistent with

governing law. However, in the event this proposed rule is finalized, if any provision of that

final rule, an amendment or revision made by that rule, or the application of such provision

or amendment or revision to any person or circumstance, is held to be invalid or

unenforceable by its terms, the remainder of that final rule, the amendments or revisions

made by that rule, and application of the provisions of the rule to any person or circumstance

shall not be affected and shall be construed so as to give them the maximum effect permitted

by law.

List of subjects in 27 CFR part 478

Administrative practice and procedure, Arms and munitions, Exports, Freight,

Imports, Intergovernmental relations, Law enforcement officers, Military personnel,

Penalties, Reporting and recordkeeping requirements, Research, Seizures and forfeitures,

Transportation.

For the reasons discussed in the preamble, ATF proposes to amend 27 CFR part 478

as follows:

PART 478- COMMERCE IN FIREARMS AND AMMUNITION

1. The authority citation for 27 CFR part 478 continues to read as follows:

Authority: 5 U.S.C. 552(a); 18 U.S.C. 847, 921–931; 44 U.S.C. 3504(h)

2. Amend § 478.11 by:

a. Revising paragraph (3) of the definition of “engaged in the business” (“dealer in

firearms other than a gunsmith or a pawnbroker”); the definition of “personal collection (or

personal collection of firearms, or personal firearms collection)”, including its title; and thedefinition of “predominantly earn a profit”; and

b. Removing the definition of “former licensee inventory”.

The revisions read as follows:

§ 478.11 Meaning of Terms

Engaged in the business– * * *

* * * * *

(3) Dealer in firearms other than a gunsmith or a pawnbroker. A person who devotes

time, attention, and labor to dealing in firearms as a regular course of trade or business to

predominantly earn a profit through the repetitive purchase and resale of firearms. The term

does not include a person who makes occasional sales, exchanges, or purchases of firearms to

enhance a personal collection or for a hobby, or who sells all or part of the person’s personal

collection of firearms. In addition, the term does not include an auctioneer who provides only

auction services on commission to assist in liquidating firearms at an estate-type auction, as

long as the auctioneer does not purchase the firearms or take possession of the firearms for

sale or consignment.

* * * * *

Licensee personal collection (or personal collection of licensee). In the case of a

firearm imported, manufactured, or otherwise acquired by a licensed manufacturer, importer,

or dealer, the personal collection includes only firearms that were:

(a) Acquired or transferred without the intent to willfully evade the restrictions placed

upon licensees by 18 U.S.C. chapter 44;

(b) Recorded by the licensee as an acquisition in the licensee’s acquisition and

disposition record in accordance with §§ 478.122(a), 478.123(a), or 478.125(e) (unless

acquired prior to licensure and not intended for sale);

(c) Recorded as a disposition from the licensee’s business inventory to the licensee’s

personal collection or otherwise as a personal firearm in accordance with §§ 478.122(a),478.123(a), or 478.125(e) (unless acquired prior to licensure and not intended for sale);

(d) Maintained in such personal collection or otherwise as a personal firearm

(whether on or off the business premises) for at least one year from the date the firearm was

so transferred, in accordance with 18 U.S.C. 923(c) and 27 CFR 478.125a; and

(e) Stored separately from, and not commingled with, the business inventory. When

stored or displayed on the business premises, the personal collection and other personal

firearms must be appropriately identified as “not for sale” (e.g., by attaching a tag).

* * *

Predominantly earn a profit. The intent underlying the sale or disposition of firearms

is predominantly one of obtaining pecuniary gain, as opposed to other intents, such as

improving or liquidating a personal firearms collection. However, proof of profit, including

the intent to profit, is not required in cases in which the person engaged in the regular and

repetitive purchase and disposition of firearms for criminal purposes or terrorism.

* * * * *

§ 478.13 [Removed and Reserved]

3. Remove and reserve § 478.13.

§ 478.57 [Amend]

4. Amend § 478.57 by removing from paragraphs (b)(2) and (c) the second sentence.

The revisions read as follows:

§ 478.57 Discontinuance of business.

* * * * *

(b) * * * * *

(2) Transfer the former licensee inventory to a responsible person of the former

licensee to whom the receipt, possession, sale, or other disposition is not prohibited by law.

(c) Transfers of former licensee inventory to a licensee or responsible person in

accordance with paragraph (b)(1) or (2) of this section shall be appropriately recorded asdispositions, in accordance with §§ 478.122(b), 478.123(b), or 478.125(e), prior to delivering

the records after discontinuing business consistent with § 478.127.

* * * * *

§ 478.78 [Amend]

5. Amend § 478.78 by removing from paragraphs (b)(2) and (c) the second sentence.

The revisions read as follows:

§ 478.78 Operations by licensee after notice.

* * * * *

(b) * * * * *

(2) Transfer the former licensee inventory to a responsible person of the former

licensee to whom the receipt, possession, sale, or other disposition is not prohibited by law.

(c) Transfers of former licensee inventory to a licensee or responsible person in

accordance with paragraph (b)(1) or (2) of this section shall be appropriately recorded as

dispositions, in accordance with §§ 478.122(b), 478.123(b), or 478.125(e), prior to delivering

the records after discontinuing business consistent with § 478.127.

* * * * *

Robert Cekada,

Director.