dissenting:
I respectfully dissent. In my view, the admission of the ATF forms to prove that the Smith and Wesson pistol was manufactured in Massachusetts and the Sterling Arms pistol in New York is contrary to both the spirit and letter of Fed.R.Evid. 803(24).1 I also feel that Agent Parker’s testimony that the Savage rifle could not have been manufactured in Maryland was inadmissible hearsay.
Rule 803(24) requires not only that a hearsay statement admitted under its authority have circumstantial guarantees of trustworthiness equivalent to the other rule 803 exceptions, but that the court determine that “the statement is more probafive on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts ____”2 The admission of the ATF trace forms satisfied neither of these requirements. In the first place, the government made no showing at trial of the trustworthiness of the forms.
Rather, the district court expressed its view that a weapons manufacturer would have no reason to provide incorrect information on the trace form. ATF Agent Parker had testified that manufacturers are required by law to keep detailed records of the shipment of firearms subsequent to their manufacture. The government asserts that those records provide the basis for completion and certification of the trace forms. Agent Parker’s testimony indicated, however, that he knew nothing about the actual record keeping activities of either Smith and Wesson or Sterling Arms. The assumption that the manufacturer will obey the law does not, I feel, establish the kind of reliability that the rules’ drafters contemplated nor is that which is contemplated by the confrontation clause of the sixth amendment. I think the rationale of the Fifth Circuit opinion in United States v. Davis, 571 F.2d 1354, 1358-60 (5th Cir.1978), applies equally here. Davis reversed the trial court’s admission of a similar trace form under rule 803(6) without authentication by testimony of a custodian or other reliable evidence.
The Davis court stated “in being saved an appearance before the jury, [the custodian] was rendered immune to cross-examination, thus eliminating the possibility that the defense might be able to keep his testimony from the jury altogether by showing *1462that a condition essential to admissibility under rule 803(6) could not be met.” Id. at 1359. The same rationale should apply when the government, failing to satisfy the requirement of rule 803(6), attempts to circumvent that evidentiary weakness by introducing the document under rule 803(24). See Fong v. American Airlines, Inc., 626 F.2d at 763 (statement to be admitted under rule 803(24) exception must have circumstantial guarantees of trustworthiness equivalent to those present in the traditional exceptions to the hearsay rule).
Second, I feel that the district court should have excluded the hearsay statements expressed by the trace forms because the government did not establish that the evidence was “more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts.” Fed. R.Evid. 803(24). The proponent’s burden is not a light one for the residual exception is to be “used very rarely, and only in exceptional circumstances.” See Huff v. White Motor Corp., 609 F.2d at 291, citing Committee on the Judiciary, S.Rep.No. 93-1277, Note to Paragraph (24), 28 U.S.C.A.Fed.R. Evid. p. 583 (1975); see also United States v. Kim, 595 F.2d 755, 765 (D.C.Cir.1979) (rule 803(24) intended to be a narrow exception to the hearsay rule applying only in exceptional circumstances); Fong v. American Airlines, Inc. 626 F.2d at 763 (rule 803(24) exception is not to be used as a new and broad hearsay exception). Furthermore, the party who would benefit from the exception clearly bears the burden of showing that requiring alternative means of proof would be unreasonable. Pittsburgh Press Club v. United States, 579 F.2d 751, 758 (3rd Cir.1978). In this ease, I feel the government did not meet that burden.
The government offered the evidence as proof of an essential element of the defendant’s crime. The government, however, did not offer, nor did the court require, any evidence of the unreasonableness of producing the custodians from Massachusetts and New York for trial at Baltimore. The court admitted the ATF trace forms on the basis of its summary conclusion that it would be unreasonable to require the government .“to bring custodians from all over the country to prove the single fact such as place of manufacture.” The court ruled, in effect, that requiring the government to subpoena record custodians is per se unreasonable where the ATF trace forms are available to prove that the seized firearms had once been in interstate commerce. Such a per se rule with respect to the trace forms is inappropriate, and I would reach the contrary result given the facts of this case.
Producing the in court testimony of the record custodians to establish the interstate nexus, an essential element of the indictment, would have been inconvenient for the government, but not unreasonable. The majority opinion, I fear, permits the substitution of a convenience standard for the reasonableness standard of rule 803(24) and allows only the most cursory and con-clusory determinations by a district court to establish a basis for admitting evidence under that exception.3
*1463I also disagree with the majority’s conclusion that Agent Parker’s testimony alone was sufficient to establish the requisite interstate commerce nexus for the Savage rifle, which bore no serial number. Parker testified that, to the best of his knowledge, Savage had never operated a manufacturing plant in the State of Maryland and that only one weapons company had ever maintained a plant in Maryland. While it is conceivable that the testimony of an ATF agent with nine years’ experience could be sufficient to establish the interstate nexus of a firearm, I do not believe that Parker’s testimony fits into that category. Although the government argued that an agent operating in the Maryland region would be familiar with any weapon manufactured in the state, Parker, at trial, was unable to provide the name of the manufacturer which he believed was the only manufacturer to have operated in Maryland. The government failed to show that Parker’s testimony was competent nonhearsay evidence, and not cumulative hearsay regarding Savage’s manufacturing operations prior to Parker’s service as an ATF agent. His testimony, in my view, cannot sustain a conviction requiring proof even of a minimal interstate nexus.
In sum, the district court allowed the government to prove its case based on inadmissible hearsay evidence. The government should have either produced the records custodians or complied with the requirement of Rule 803(24).
. I fully concur in the majority’s rejection of Fed.R.Evid. 803(6) as a basis for the introduction of the ATF trace forms. The ATF forms were not business records within the meaning of rule 803(6) of either the weapons manufacturers or the Bureau of Alcohol, Tobacco and Firearms.
. In addition, a statement may not be admitted under this exception unless the proposed party has given notice “sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it ... and the particulars of it, including the name and address of the declarant. See Fong v. American Airlines, Inc., 626 F.2d 759, 763, n. 3 (9th Cir.1980); Huff v. White Motor Corp., 609 F.2d 286, 295 (7th Cir.1979). See also 4 Weinstein’s Evidence, ¶ 803(24)[01] 803-379 to 803-380 (1984). The trial court should make the rule 803(24) findings explicitly on the record, unless there is a waiver explicitly, or by silence, or the basis for the ruling is obvious. Id. at 803-373.
. The record is not entirely clear as to whether the government satisfied the requirement that the proponent provide the opposing party with advance notice of its intent to offer evidence under the rule 803(24) exception. For that matter, at trial neither the proponent nor the district court offered rule 803(24) as the basis for admission. The government at oral argument and in its brief stated that it had provided advance notice to defendant’s counsel. The government also asserted that proof of notice could be inferred from defendant’s ability at trial to cite precedent for his objection to the introduction of the forms. Circuit court interpretations of the notice required under rule 803(24) are significant in this respect. In United States v. Oates, the Second Circuit stated: "There is absolutely no doubt that Congress intended that the requirement of advance notice be rigidly enforced.” 560 F.2d 45, 73 n. 30 (2d Cir.1977). The court reviewed the legislative history of the exception and found that Congress included the notice requirement in rule 803(24) as a compromise to gain House support for the residual exception after the House had voted to delete the entire residual exception from the proposed rules. Id. See United States v. Davis, 571 F.2d at 1360 n. 11 (rule 803(24) not to be considered as a basis for admission where government at trial made no attempt to invoke *1463exception by giving defendant required advance notice); contra Furtado v. Bishop, 604 F.2d 80, 91 (1st Cir.1979) (courts should interpret pretrial notice somewhat flexibly); see Piva v. Xerox Corp., 654 F.2d 591, 596 (9th Cir.1981) (notice requirement not strictly enforced where plaintiff has ample opportunity to attack trustworthiness of hearsay; plaintiffs attorney cross-examined expert witness and had more than a year after admission of evidence to rebut or move to strike). It would seem that parties seeking to invoke rule 803(24) would meet their burden by providing written notice in advance of trial. The district court should ascertain for the record that notice has been given. A full record- on this issue is particularly important where the government seeks to introduce hearsay evidence under Rule 803(24) in a criminal prosecution. Certainly, neither the district court nor this court should be left to infer that the proposing party has given notice.