ATF Posts Open Letter on New Definition of Firearm "Final Rule"

 ATF images of "Firearms" in "Final Rule"

On September 27, 2022, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued an open letter to all Federal Firearms Licensees.  The letter is available online.

The letter is seven pages long and includes several images.  The purpose of the letter is explained in the first paragraph. From the atf.gov:

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is issuing this open letter to further assist the firearms industry and the public in understanding whether a “partially complete, disassembled, or nonfunctional” receiver of an AR-15/M-16 variant weapon has reached a stage of manufacture such that it “may readily be completed, assembled, restored, or otherwise converted” to a functional receiver, and is therefore classified as a “frame or receiver” or “firearm” in accordance with the final rule titled “Definition of ‘Frame or Receiver’ and Identification of Firearms (Final Rule 2021R-05F), which became effective August 24, 2022. In particular, the following addresses items that are clearly identifiable as an unfinished component part of a weapon—specifically, partially complete, disassembled, or nonfunctional AR-type receivers (also known as receiver ‘billets’ or ‘blanks’).

The "Final Rule" is being contested in the courts. In North Dakota, Judge Peter D. Welte accepted the ATF definition of a firearm in the Final Rule, at least in his refusal to issue a temporary injunction against the implementation of the rule. The rule might still be found to be unlawful in the court case.

In the Northern District of Texas, Judge Reed O'Conner found the ATF exceeded its authority, and issued a limited injunction against implementation of the rule.  From the opinion:

1.The Final Rule exceeds ATF’s statutory authority under the plain language of the Gun Control Act.

The Administrative Procedure Act requires courts to “hold unlawful and set aside agency action, findings, and conclusions found to be ... in excess of statutory jurisdiction, authority, or limitations.”5 U.S.C. §706(2)(C). Plaintiffs argue the Final Rule exceeds ATF’s statutory authority under the Gun Control Act in two ways. First, Plaintiffs argue that the Final Rule expands ATF’s authority over parts that may be “readily converted” into frames or receivers, when Congress limited ATF’s authority to “frames or receivers” as such. Second, Plaintiffs argue that the Final Rule unlawfully treats weapon parts kits as firearms. Plaintiffs are likely to succeed on both claims.

The letter by ATF explaining the Final Rule does not mention the ongoing court cases.  It reiterates ATF's position that association with tools and jigs, instructions or guides, can make a non-firearm into a firearm.

From page 3 of the letter:

Thus, in order not to be considered “readily” completed to function, ATF has determined that a partially complete AR-type receiver must have no indexing or machining of any kind performed in the area of the trigger/hammer (fire control) cavity. A partially complete AR-type receiver with no indexing or machining of any kind performed in the area of the fire control cavity is not classified as a “receiver,” or “firearm,” if not sold, distributed, or marketed with any associated templates, jigs, molds, equipment, tools, instructions, or guides, such as within a receiver parts kit.

On page 6, the ATF emphasizes that information and tools which make the creation of a frame or receiver easier, are now considered items which make an incomplete part a firearm:

However, the above analysis only applies to partially complete, disassembled, or nonfunctional frames or receivers without any associated templates, jigs, molds, equipment, tools, instructions, guides, or marketing materials. Pursuant to Final Rule 2021R-05F, partially complete, disassembled, or nonfunctional frames or receivers that are sold, distributed, possessed with such items (or made available by the seller or distributor to the same person) may change the analysis, including those distributed as frame or receiver parts kits. 27 CFR 478.12(c). For example, jigs, templates, or instructions can provide the same indexing as if it were placed directly on the unfinished frame or receiver.

At the end of the letter, the ATF adds further warnings about how unfinished frames or receivers are considered "defense articles", and subject to permits for export or import. From page 7:

Further, although unfinished frames or receivers that do not meet the definition of a “firearm” are not subject to regulation under GCA provisions, they are still considered “defense articles” on the U.S. Munitions Import List and, therefore, require an approved Application and Permit for Importation of Firearms, Ammunition and Implements of War (ATF Form 6) for importation into the United States under 27 CFR 447.41; 447.22, and are also subject to export controls.1

In the old Soviet Union, typewriters had serial numbers and were tightly controlled by the state. Information was tightly controlled.  In the United States, the distribution of information is protected by the First Amendment.

The ATF is asserting that tools and information on how to make frames or receivers are, essentially frames and receivers. This is an unprecedented expansion of government control over the private making of firearms, never before existing in the United States.

The injunction by Judge O'Conner

Judge O'Conner sees the major expansion of power by the government. He believes the ATF does not have the authority to do so.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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