ATF is changing the term "business" for FFL's.

[Pag23]

So if I do a private sale through an FFL ...I am good to go? I'm not reading 446 pages

[JenniferG]

I find it great that bureaucrats can make their own laws. It speeds things up.

[forceinPA]

Un constitutional mandate. WILL NOT COMPLY. Fuck the ATF. enough said.

[bogey1]

So now you can't sell a long gun to a friend without going through an FFL?

[Mosinshooter762]

So if I do a private sale through an FFL ...I am good to go? I'm not reading 446 pages

While exact enforcement priorities remain to be seen, selling firearms to an FFL or to others through an FFL does not, per se, exempt one from an unlicensed dealing in firearms charge.

Some time ago a local dealer was telling me that ATF was looking into a customer for unlicensed dealing. Apparently, the customer was doing some online purchases of pistols and having them sent to an FFL and then transferring the pistols soon thereafter to others through an FFL. The customer apparently was unemployed which apparently also caught the attention of ATF. I believe the result was ATF warned the customer about continuing to do this and that may of ended the matter.

[esh21167]

I did not read the entirety, but from what I surmise, it appears to target those who sell in a public venue, like gun shows, flea markets, etc., not private individual FTF sales. MSM articles even commented that it 'falls short' of universal background checks.

OTOH, as mentioned earlier, someone who can be 'proven' to be 'selling for profit' might be considered a dealer, and we know that previously ATF said that could be from only one sale. Theoretically, that has to be proven, but the process is the punishment.

[JoshIronshaft]

I did read most of it, and overall, I'm not freaking out over this.

The final rule is actually pages 452 - 466. Everything before that is history, explaining the rule in detail, responses to comments, financial impacts, etc.

I will provide some quotes directly from the document that are worth reading:

Fourth, the rule clarifies who is required to be licensed as a wholesale or retail firearms dealer by finalizing a list of specific activities demonstrating when an unlicensed person’s buying and reselling of firearms presumptively rises to the level of being “engaged in the business” as a dealer. It also finalizes a separate set of presumptions indicating when a person has the intent “to predominantly earn a profit” through the repetitive purchase and resale of firearms. The activities described in these presumptions are not an exclusive list of activities that may indicate that someone is “engaged in the business” or intends “to predominantly earn a profit.” These presumptions will provide clarification and guidance to persons who are potentially subject to the license requirement and will apply in administrative and civil proceedings. The presumptions will be used, for example, to help a fact finder determine in civil asset forfeiture proceedings whether seized firearms should be forfeited to the Government and in administrative licensing proceedings to determine whether to deny or revoke a Federal firearms license. These presumptions do not apply in any criminal proceedings but may be useful to judges in such proceedings when, for example, they decide how to instruct juries regarding permissible inferences.

At the same time, the final rule expressly recognizes that individuals who purchase firearms for the enhancement of a personal collection or a legitimate hobby are permitted by the GCA to occasionally buy and sell firearms for those purposes, or occasionally resell to a licensee or to a family member for lawful purposes, without the need to obtain a license. It also makes clear that persons may liquidate all or part of a personal collection, liquidate firearms that are inherited, or liquidate pursuant to a court order, without the need to obtain a license. Evidence of these activities may also be used to rebut the presumptions discussed above in a civil or administrative proceeding. Relatedly, the rule finalizes the proposed definition of the term “personal collection” (or “personal collection of firearms” or “personal firearms collection”) to reflect common definitions of the terms “collection” and “hobby.” While firearms accumulated primarily for personal protection are not included in the definition of “personal collection,” the final rule makes clear that nothing in this rule shall be construed as precluding a person from lawfully acquiring a firearm for self-protection or other lawful personal use.

The Department considered, but did not propose in the NPRM, an alternative that would have set a minimum numerical threshold of firearms sold by a person within a certain period. That approach was not proposed for several reasons. First, while selling large numbers of firearms or engaging or offering to engage in frequent transactions may be highly indicative of business activity, neither the courts nor the Department have recognized a set minimum number of firearms purchased or resold that triggers the licensing requirement. Similarly, there is no minimum number of transactions that determines whether a person is “engaged in the business” of dealing in firearms. Even a single firearm transaction, or offer to engage in a transaction, when combined with other evidence, may be sufficient to require a license. For example, even under the previous statutory definition, courts have upheld convictions for dealing without a license when few firearms, if any, were actually sold, when other factors were also present, such as the person representing to others a willingness and ability to repetitively purchase firearms for resale. See, e.g., United States v. King, 735 F.3d 1098, 1107 n.8 (9th Cir. 2013) (upholding conviction where defendant attempted to sell one firearm and represented that he could purchase more for resale and noting that “Section 922(a)(1)(A) does not require an actual sale of firearms”). On the other hand, courts have stated that an isolated firearm transaction would not require a license when other factors were not present.68 Second, in addition to the tracing concerns expressed by ATF in response to comments on the 1979 ANPRM, a person could structure their transactions to avoid a minimum threshold by spreading out their sales over time. Finally, the Department does not believe there is currently a sufficient evidentiary basis, without consideration of additional factors, to support a specific minimum number of firearms bought or sold for a person to be considered “engaged in the business.”

Rather than establishing a minimum threshold number of firearms purchased or sold, the NPRM proposed to clarify that, absent reliable evidence to the contrary, a person would be presumed to be engaged in the business of dealing in firearms when the person:

(1) sells or offers for sale firearms, and also represents to potential buyers or otherwise demonstrates a willingness and ability to purchase and sell additional firearms;

(2) spends more money or its equivalent on purchases of firearms for the purpose of resale than the person’s reported taxable gross income during the applicable period of time;

(3) repetitively purchases for the purpose of resale, or sells or offers for sale firearms—(A) through straw or sham businesses, or individual straw purchasers or sellers; or (B) that cannot lawfully be purchased or possessed, including: (i) stolen firearms (18 U.S.C. 922(j)); (ii) firearms with the licensee’s serial number removed, obliterated, or altered (18 U.S.C. 922(k); 26 U.S.C. 5861(i)); (iii) firearms imported in violation of law (18 U.S.C. 922(l), 22 U.S.C. 2778, or 26 U.S.C. 5844, 5861(k)); or (iv) machineguns or other weapons defined as firearms under 26 U.S.C. 5845(a) that were not properly registered in the National Firearms Registration and Transfer Record (18 U.S.C. 922(o); 26 U.S.C. 5861(d));

(4) repetitively sells or offers for sale firearms—(A) within 30 days after they were purchased; (B) that are new, or like new in their original packaging; or (C) that are of the same or similar kind (i.e., make/manufacturer, model, caliber/gauge, and action) and type (i.e., the classification of a firearm as a rifle, shotgun, revolver, pistol, frame, receiver, machinegun, silencer, destructive device, or other firearm);

(5) as a former licensee (or responsible person acting on behalf of the former licensee), sells or offers for sale firearms that were in the business inventory of such licensee at the time the license was terminated (i.e., license revocation, denial of license renewal, license expiration, or surrender of license), and were not transferred to a personal collection in accordance with 18 U.S.C. 923(c) and 27 CFR 478.125a; or

(6) as a former licensee (or responsible person acting on behalf of a former licensee), sells or offers for sale firearms that were transferred to a personal collection of such former licensee or responsible person prior to the time the license was terminated, unless: (A) the firearms were received and transferred without any intent to willfully evade the restrictions placed on licensees by chapter 44, title 18, of the United States Code; and (B) one year has passed from the date of transfer to the personal collection.

The proposed rule provided that any one circumstance or a combination of the circumstances set forth above would give rise to a rebuttable presumption that the person is engaged in the business of dealing in firearms and would need to be licensed under the GCA. The activities set forth in these proposed rebuttable presumptions would not be exhaustive of the conduct that may show that, or be considered in determining whether, a person is engaged in the business of dealing in firearms. Further, as previously noted, while the criteria may be useful to courts in criminal prosecutions when instructing juries regarding permissible inferences, the presumptions outlined above would not be applicable to such criminal cases.
At the same time, the Department recognized in the NPRM that certain transactions were not likely to be sufficient to support a presumption that a person is engaging in the business of dealing in firearms. For this reason, the proposed rule also included examples of when a person would not be presumed to be engaged in the business of dealing in firearms. Specifically, under the proposed rule, a person would not be presumed to be engaged in the business when the person transfers firearms only as bona fide gifts or occasionally sells firearms only to obtain more valuable, desirable, or useful firearms for their personal collection or hobby—unless their conduct also demonstrates a predominant intent to earn a profit.

G. Definition of “Predominantly earn a profit”

The NPRM also explained that the BSCA broadened the definition of “engaged in the business” as a dealer by substituting “to predominantly earn a profit” for “with the principal objective of livelihood or profit.” 18 U.S.C. 921(a)(21)(C). It also defined the term “to predominantly earn a profit.” 18 U.S.C. 921(a)(22). The NPRM proposed to incorporate those statutory changes, as discussed above.

The NPRM proposed to further implement the BSCA’s amendments by: (1) clarifying that the “proof of profit” proviso—i.e., the BSCA’s provision that “proof of 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”—also excludes intent to profit, thus making clear that it is not necessary for the Federal Government to prove that a person intended to make a profit if the person was dealing in firearms for criminal purposes or terrorism; (2) clarifying that a person may have the predominant intent to profit even if the person does not actually obtain pecuniary gain from selling or disposing of firearms; and (3) establishing a presumption in civil and administrative proceedings that certain conduct demonstrates the requisite intent to “predominantly earn a profit,” absent reliable evidence to the contrary.

These proposed regulatory amendments are consistent with the plain language of the GCA. Neither the pre-BSCA definition of “with the principal objective of livelihood and profit” nor the post-BSCA definition of “to predominantly earn a profit” requires the Government to prove that the defendant actually profited from firearms transactions. See 18 U.S.C. 921(a)(22), (a)(23) (referring to “the intent underlying the sale or disposition of firearms”); Focia, 869 F.3d at 1282 (“The exact percentage of income obtained through the sales is not the test; rather, . . . the statute focuses on the defendant’s motivation in engaging in the sales.”).

ATF’s experience also establishes that certain conduct related to the sale or disposition of firearms presumptively demonstrates a primary motivation to earn a profit. In addition to conducting criminal investigations of unlicensed firearms businesses under 18 U.S.C. 922(a)(1)(A), ATF has for many decades observed through qualification and compliance inspections how dealers who sell or dispose of firearms demonstrate a predominant intent to obtain pecuniary gain, as opposed to other intents, such as improving or liquidating a personal collection.

Based on this decades-long body of experience, the proposed rule provided that, absent reliable evidence to the contrary, a person would be presumed to have the intent to “predominantly earn a profit” when the person:

(1) advertises, markets, or otherwise promotes a firearms business (e.g., advertises or posts firearms for sale, including on any website; establishes a website for selling or offering for sale their firearms; makes available business cards; or tags firearms with sales prices), regardless of whether the person incurs expenses or only promotes the business informally;

(2) purchases, rents, or otherwise secures or sets aside permanent or temporary physical space to display or store firearms they offer for sale, including part or all of a business premises, table or space at a gun show, or display case;

(3) makes or maintains records, in any form, to document, track, or calculate profits and losses from firearms purchases and sales;

(4) purchases or otherwise secures merchant services as a business (e.g., credit card transaction services, digital wallet for business) through which the person makes or offers to make payments for firearms transactions;

(5) formally or informally purchases, hires, or otherwise secures business security services (e.g., a central station-monitored security system registered to a business or guards for security) to protect business assets or transactions that include firearms;

(6) formally or informally establishes a business entity, trade name, or online business account, including an account using a business name on a social media or other website, through which the person makes or offers to make firearms transactions;

(7) secures or applies for a State or local business license to purchase for resale or to sell merchandise that includes firearms; or

(8) purchases a business insurance policy, including any riders that cover firearms inventory.

Any of these firearms-business-related activities justifies a rebuttable presumption that the person has the requisite intent to predominantly earn a profit from reselling or disposing of firearms.

Lastly, in response to the question whether the rule applies to persons who deal in component parts of a complete weapon, this rule applies to persons who engage in the business of dealing in “firearms,” as that term is defined by 18 U.S.C. 921(a)(3). This includes weapons that will, are designed to, or may readily be converted to expel a projectile under 18 U.S.C. 921(a)(3)(A), and the frames or receivers of any such weapons under 18 U.S.C. 921(a)(3)(B). Persons who engage in the business of dealing in any such firearms under the GCA must be licensed.

[Qtrborecrazy]

And who will be the first to challenge the ATF and FJB - NRA or GOA??

[JoshIronshaft]

So if I do a private sale through an FFL ...I am good to go? I'm not reading 446 pages

So now you can't sell a long gun to a friend without going through an FFL?

Nothing is changing the way we transfer firearms. This is all about if you're engaged in activities that would indicate you should have an FFL.

[Delkal]

Nothing is changing the way we transfer firearms. This is all about if you're engaged in activities that would indicate you should have an FFL.

They also clarified what it means to be a collector and that it is OK to sell your personal firearms. I didn't see any changes relating to a private gunowner wanting to sell their firearms.