Comments of Everytown for Gun Safety on Docket No. ATF 40P Commerce in Firearms and Ammunition; Reporting Theft or Loss of Firearms in Transit

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1 November 10, 2014 SUBMITTED VIA FEDERAL E-RULEMAKING PORTAL Brenda Raffath Friend Office of Regulatory Affairs, Enforcement Programs and Services Bureau of Alcohol, Tobacco, Firearms, and Explosives U.S. Department of Justice 99 New York Avenue NE Washington, DC Re: Comments of Everytown for Gun Safety on Docket No. ATF 40P Commerce in Firearms and Ammunition; Reporting Theft or Loss of Firearms in Transit Dear Ms. Friend: On behalf of Everytown for Gun Safety ( Everytown ), I submit this comment on Notice of Proposed Rulemaking No. ATF 40P, in which the Bureau of Alcohol, Tobacco, Firearms and Explosives of the United States Department of Justice ( ATF ) proposes to require that a federal firearms licensee ( FFL ) that discovers a firearm that it shipped was lost or stolen in transit must report the loss or theft to ATF and the appropriate local authority. The proposed rule would also simplify FFLs reporting of lost or stolen firearms registered under the National Firearms Act, making this process more efficient for both FFLs and ATF. For the reasons set forth herein, Everytown urges adoption of the proposed rule. Everytown is the largest gun violence prevention organization in the country with more than 2.5 million supporters and more than 40,000 donors including moms, mayors, survivors, and everyday Americans who are fighting for public safety measures that respect the Second Amendment and help save lives. At the core of Everytown are Mayors Against Illegal Guns ( MAIG ) and Moms Demand Action for Gun Sense in America, a grassroots movement of American mothers founded the day after the Sandy Hook tragedy. MAIG, a coalition of more than 1,000 current and former mayors which merged with Moms Demand Action in 2014 to form Everytown, has for many years studied the prevalence of lost and stolen firearms and the relationship between guns recovered in crime investigations and laws requiring lost and stolen guns to be reported. In a 2010 report, MAIG found that states that require the reporting of lost and stolen guns export such crime guns at a rate two-and-a-half times lower than states that do not mandate such reporting. 1 While various deficiencies in data collection render definitive statistics on the number of guns lost and stolen elusive, studies estimate that hundreds of thousands of guns change hands in America each year through loss or theft. Requiring that these lost and stolen guns be reported to law enforcement deters illegal gun trafficking by allowing police to respond more quickly to gun thefts 1

2 and helping police identify trafficking patterns. Because ATF s proposed rule would enhance reporting of guns lost and stolen in transit from gun dealers and streamline FFLs reporting procedures, we strongly urge its adoption. Hundreds of thousands of firearms are lost and stolen each year, imposing substantial burdens on law enforcement and posing a significant threat to public safety. Lost and stolen guns pose a serious threat to public safety. According to the Department of Justice s Bureau of Justice Statistics, about 1.4 million firearms were stolen from an average of 232,000 guns per year. 2 This may undercount the phenomenon, as thousands more are likely never reported. 3 Only a fraction of these missing firearms about 20% are recovered in the year they were reported stolen. 4 A large number of these guns are lost by or stolen from FFLs. ATF data indicates that nearly 20,000 firearms were lost or stolen from federally licensed gun dealers in 2013 alone. 5 According to Everytown s analysis of data published by the Department of Justice, in 2012, firearms lost and stolen from FFLs made up about nine percent of guns that were reported lost or stolen that year but in many states, they made up a significantly larger percentage. Firearms lost and stolen from FFLs comprised more than thirty percent of all lost and stolen guns in Idaho, Iowa, Maine, Maryland, Nebraska, Rhode Island and Wyoming and more than half in Maryland and Massachusetts. 6 These missing guns represent a real threat to public safety: lost and stolen guns account for a large share of firearms that are illegally trafficked and involved in firearm crimes. 7 The proposed rule would close a loophole in federal regulations that lets thousands of lost and stolen guns go unreported. Federal law currently requires federal firearms licensees to report firearms that are lost or stolen from their inventory. Under the Gun Control Act of 1968 and the regulations implementing it, FFLs must report firearms that are lost or stolen to local authorities and to ATF; they do so by telephoning ATF s national toll-free number and completing a FFL Firearms Inventory Theft/Loss Report, ATF Form This reporting requirement allows police to quickly investigate and, ideally, to return missing firearms to the FFL from which they have gone missing, preventing them from being trafficked illegally. Moreover, requiring the reporting of lost and stolen guns helps deter illegal trafficking. Without the reporting requirement, if a rogue dealer sold a gun to a prohibited purchaser and the gun was later recovered at a crime scene, the dealer could evade responsibility by simply claiming the gun had been lost or stolen. Requiring FFLs to promptly report guns that are lost and stolen thus helps curtail illegal gun trafficking and keep guns out of the hands of dangerous criminals. Beyond the baseline reporting requirements under the Gun Control Act of 1968, there are additional reporting requirements on FFLs that experience the loss or theft of firearms registered under the National Firearms Act. When a so-called NFA weapon e.g., a machine gun, short-barreled rifle or shotgun, or a silencer is lost or stolen from an FFL, it must not only file a Form , but must also separately file a report with the ATF director that includes certain additional information that is required to be reported by a federal regulation that pertains to NFA weapons. 9 Importantly, while current federal regulations impose these reporting requirements for guns lost or 2

3 stolen from FFLs, there is a significant loophole in the reporting requirements: the regulations do not require FFLs to report firearms that are lost or stolen in transit after an FFL has shipped them. Indeed, the existing regulations are silent on the issue. They do not specify whether firearms that go missing in transit should be considered the inventory of the dealer who sent them or, in the case of guns shipped from one FFL to another, the inventory of the intended recipient FFL. More significantly, the existing rules do not impose any duty to report lost or stolen firearms on either the sender or intended recipient. As a result, it is not surprising that firearms lost or stolen after an FFL ships them often go unreported. The precise number of firearms that are lost or stolen in transit from FFLs is not known precisely because FFLs frequently do not report these missing guns. But the available evidence suggests that thousands of firearms go unaccounted for under these circumstances every year and that the number is increasing. ATF s National Tracing Center assists law enforcement in identifying the origins of guns recovered in crime scenes. When police recover guns from crime scenes, they can ask ATF to perform a trace of the gun. Using the firearm s serial number, ATF attempts to determine what FFL first sold the firearm (and the person to whom it was sold). Over the five years between 2008 and 2012, there were an average of 1,525 crime gun traces every year in which ATF traced a firearm to an FFL that claimed it had never received the gun (which another FFL claimed to have shipped to it) and in which neither FFL reported it lost or stolen. 10 This figure which ATF reports has increased about 20 percent over the last 15 years likely undercounts the actual number of unaccounted-for lost and stolen guns, because many other guns that go missing in transit are never recovered at crime scenes and never traced. Consistent with 18 U.S.C. 923(g)(6) s requirement that FFLs report lost or stolen guns, the proposed new rule would close the in-transit loophole in current reporting practices. It would do this by imposing a new reporting requirement on FFLs that attempt to send or transfer a firearm that is lost or stolen in transit. The proposed rule would specify that any firearm lost in transit by a common or contract carrier is considered stolen or lost from the sending FFL s inventory, and it would require that FFL to report it as lost or stolen to ATF and local authorities within 48 hours of the discovery that it had gone missing. In keeping with current practice controlling guns lost or stolen from an FFL s inventory, the proposed rule would require FFLs to record the lost or stolen gun as a disposition entry in its Record of Acquisition and Disposition (along with the incident report number provided by ATF and local authorities). In a new paragraph (e) in 27 C.F.R a, the rule would require the disposition entry to be made within 7 days of the discovery of the loss or theft. And, in cases in which an FFL discovers the whereabouts of a lost or stolen gun after reporting it missing, the proposed rule would require the FFL to re-enter the firearm into the Record of Acquisition and Disposition as an acquisition entry. By closing the in-transit loophole in this way, the proposed new rule would improve the data on which ATF and local law enforcement rely when examining trafficking patterns and investigating guns recovered at crime scenes. By closing the reporting loophole in current regulations, the proposed rule would improve the reporting of guns lost and stolen from FFLs, and would also simplify the reporting procedure for NFA weapons. 3

4 The failure to report guns lost or stolen in transit under the existing rules means that law enforcement is not aware of thousands of guns that may be illegally trafficked to criminals or other dangerous, prohibited persons. And, if these guns are recovered at crime scenes, the fact that they have not been reported makes it impossible for ATF to determine how they may have been diverted from the shipper to the person who owned them before their recovery. For both reasons, the failure to report lost and stolen guns has dangerous implications for public safety. Accordingly, the proposed rule to ensure that they are reported represents sound policy and should be adopted. The proposed rule s assignment of the duty to report to the FFL that ships the firearm makes sense for at least two reasons. First, it will ensure reporting in cases in which an FFL is shipping a firearm to an entity that is not a licensee (as, for example, when an FFL ships to a non-licensee for repairs). In such cases, the only mandated reporter is the FFL that ships the gun meaning that there would be no reporting of the loss or theft under a rule imposing a reporting duty on FFLs that are the intended recipient. Moreover, FFLs shipping firearms are well positioned to know if the firearms they shipped were indeed received by the intended recipient, since the recipient would ordinarily notify the shipping FFL (and refuse to pay for the undelivered firearm). The proposed rule should be adopted for the further reason that it would simplify the reporting requirements for FFLs from which NFA weapons are lost or stolen. As noted, under existing regulations, when an NFA weapons is lost or stolen from an FFL, the licensee not only must complete a Form pursuant to 27 C.F.R a, but it must separately notify the ATF Director of the theft under 27 C.F.R As part of this rulemaking process, ATF has proposed to revise Form to include the additional information on NFA weapons that must be reported under ; the proposed rule would amend a to make clear that an FFL completing the new Form would simultaneously satisfy the requirements of By eliminating the requirement of duplicative reporting in this way, the proposed rule would simplify the reporting obligations on FFLs and reduce their paperwork, while simultaneously streamlining ATF s procedures for monitoring lost-and-stolen reports and increasing efficiency at the Bureau. These changes would reduce burdens on, and represent an improvement for, both FFLs and ATF. * * * For the reasons set forth above, Everytown for Gun Safety supports the proposed rule. FFLs that discover firearms they shipped were lost or stolen in transit should be required to report the loss or theft to ATF and the appropriate local authority. Everytown appreciates ATF s effort to promote public safety by improving the record-keeping and reporting of lost and stolen firearms, and thanks ATF for the opportunity to submit these comments. Respectfully submitted, /s/ Megan Lewis Deputy Executive Director 4

5 1 Mayors Against Illegal Guns, Trace the Guns: The Link between Gun Laws and Interstate Gun Trafficking (Sept. 2010). 2 Lynn Langton,, U.S. Department of Justice, Office of Justice Programs, Firearms Stolen during Household Burglaries and Other Property Crimes, (Nov. 2012), available at 3 According to the Bureau of Justice Statistics, about 14% of burglaries and 25% of other property crimes involving a stolen firearm were never reported to police. See id. Other studies estimate an even higher number of lost and stolen guns; an ATF report issued in 2000 estimated that there were at least 500,000 firearms stolen annually from residences, alone. See U.S. Dep t of the Treasury, Bureau of Alcohol, Tobacco, Firearms and Explosives, Following the Gun: Enforcing Federal Law Against Firearms Traffickers 41 (2000) (citing Philip Cook & Jens Ludwig, Guns in America: Results of a Comprehensive National Survey on Firearms Ownership and Use, Summary Report (Police Foundation 1996). 4 Lynn Langton,, U.S. Department of Justice, Office of Justice Programs, Firearms Stolen during Household Burglaries and Other Property Crimes, (Nov. 2012), available at 5 U.S. Dep t of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, FFL Thefts / Losses United States (Apr. 2014), available at Similarly, ATF reported that more than 16,000 firearms were lost and stolen from FFLs in See U.S. Dep t of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, 2012 Summary: Firearms Reported Lost and Stolen 4 (June 2013) available at 6 Everytown analyzed the share of guns lost and stolen from FFLs by comparing the number of guns ATF reported as being lost and stolen from FFLs with the total number of lost and stolen guns reported in the Federal Bureau of Investigation s National Crime Information Center database. See U.S. Dep t of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, 2012 Summary: Firearms Reported Lost and Stolen (June 2013), at The percentage of guns lost and stolen from FFLs in 2012 ranged from less than one percent in Hawaii, New Jersey, and Washington, D.C. to more than 60 percent in Massachusetts. 7 See U.S. Dep t of the Treasury, Bureau of Alcohol, Tobacco, Firearms and Explosives, Following the Gun: Enforcing Federal Law Against Firearms Traffickers 10 (2000). 8 See 18 U.S.C. 923(g)(6); 27 C.F.R a; see also ATF Form See 27 C.F.R (imposing requirement to report to ATF Director additional information not required to be reported under 27 C.F.R a). 10 See Federal Register, Notice of Proposed Rulemaking: Commerce in Firearms and Ammunition- Reporting Theft or Loss of Firearms in Transit (2007R-9P), at 5