LEGAL NEWS FROM THE NATION’S CAPITAL JOHANNA REEVES, ESQ.
When hearing the term “short-barreled shotgun,” many of you no doubt think of a type of firearm subject to the strict regulations of the National Firearms Act (NFA), 26 U.S.C. §5801 et seq., because it has a barrel or barrels under 18 inches in length. But have you heard of a “Gun Control Act Short-Barrel Shotgun” (GCA/ SBS)? Probably not, as the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has never before classified any firearm as such. That is, not until December 19, 2019, when the ATF issued an Open Letter classifying the first ever GCA/SBS.
The Open Letter
The honors went to Franklin Armory, a company operating out of Minden, Nevada, and the creators of the Reformation® product line. The Reformation utilizes a barrel with patented straight-cut lands and grooves rather than the conventional spiral or twisted lands and grooves, the end result being the projectile does not spin. As early as August 2017, the ATF Firearms and Ammunition Technology Division’s Industry Services Branch classified the Reformation as a non-rifle, non-shotgun, and in November 2018, upon examination of a 7.5-inch barreled Reformation variant, the Division determined that said firearm was not an NFA firearm (information regarding the ATF classification of the Reformation firearm is available on reformationfirearms.com/services.html). But the ability to freely transfer these firearms or transport them between states would come to a crashing halt just days before the 2019 Christmas holiday when ATF published its Open Letter.
The Open Letter was a response to questions from industry members and the general public concerning the Franklin Armory Reformation firearm. In the Open Letter, ATF explains that that the Reformation is not a “rifle” under the Gun Control Act (GCA) or the National Firearms Act (NFA) because the barrel design “does not impart a spin onto a projectile when fired through the barrel.” The ATF also determined the Reformation is not a shotgun as defined in the NFA, because the Reformation is not chambered for shotgun shells. Therefore, according to the ATF, the Reformation is a shotgun subject only to the GCA.
According to Franklin Armory, these findings did not contradict the ATF’s earlier private classification rulings. However, the Open Letter is the first time the ATF addressed the GCA transfer and interstate transport issues presented by the GCA/SBS classification:
Under the provisions of the GCA, if a Reformation firearm is equipped with a barrel that is less than 18 inches in overall length, the firearm is classified to be a short-barreled shotgun (SBS). When a Reformation is configured as a GCA/SBS, specific provisions of the GCA apply to the transfer of that firearm from a Federal Firearms Licensee (FFL) to a non-licensee, and to the transport of that firearm by a non-licensee in interstate or foreign commerce.
Unlike a shotgun with a barrel or barrels that are at least 18 inches in length, a so-called GCA/SBS is subject to transfer and interstate transport restrictions under the GCA. The GCA prohibits any non-licensee from transporting in interstate or foreign commerce any short-barreled shotgun, except as specifically authorized by the Attorney General consistent with public safety and necessity (18 U.S.C. §922(b)(4)). The GCA also prohibits any licensee from selling or delivering to any person any short-barreled shotgun except as specifically authorized by the Attorney General consistent with public safety and necessity (18 U.S.C. §922(b)(4)).
According to Franklin Armory in its December 23, 2019, press release (available at franklinarmory.com/content/Response%20to%20open%20letter%20FINAL.pdf), the ATF’s November 2018 private classification letter was silent on the §922(a)(4) and (b)(4) prohibitions. Rather, the agency only cautioned the company on state or local laws that may regulate the firearm.
The Reformation is the first-ever firearm produced and sold by an FFL that ATF has classified as a GCA/SBS. As such, the existing regulations do not provide a mechanism for ATF to process or approve requests, either from individuals who wish to transport a GCA/SBS in interstate or foreign commerce or from FFLs who wish to transfer a GCA/ SBS to a non-licensee. ATF admits this in the Open Letter and explains that until it is able to promulgate procedures and forms to address this new type of firearm, the public is advised of
the following:
- An FFL may lawfully sell/transfer a GCA/SBS, such as the Reformation, to the holder of “an appropriate FFL,” which ATF does not define further other than stating a GCA/SBS cannot be transferred to a holder of a Type 06 FFL (manufacturer of ammunition other than destructive devices or armor piercing) or Type 03 FFL (collector of curios and relics).
- An FFL may not lawfully transfer a Reformation configured as a GCA/SBS to a non-licensee.
- The possessor or owner of a GCA/ SBS, such as the Reformation, may not lawfully transport the firearm across state lines.
This Open Letter constitutes the first time the ATF has informed the public of this new GCA/SBS classification and the accompanying restrictions. The ATF does not set forth a time frame for developing the new procedures and forms, nor does the agency explain how it will overcome the prohibitions enacted under the Firearms Owners’ Protection Act (FOPA), which prevent ATF from creating any form of registration of firearms or firearm owners. Specifically, 18 U.S.C. §926 states the following:
No such rule or regulation prescribed after the date of the enactment of the [FOPA] may require that records required to be maintained under this chapter or any portion of the contents of such records be recorded at or transferred to a facility owned, managed or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners or firearms transactions or dispositions be established.
Franklin Armory recognized this and apparently brought it to the ATF’s attention in the weeks preceding the Open Letter when the ATF privately informed the company that it was going to “temporarily halt the transfer to consumers and interstate transportation of the Reformation branded products pending the development of new ATF procedures.” The company does not reveal how the agency responded.
Another Issue
In addition to the FOPA challenge, this Open Letter should also raise questions regarding the ATF’s ability to issue this kind of determination and accompanying proscriptions by way of public guidance that does not have the force and effect of law. Under the Administrative Procedure Act (APA), federal agencies are prohibited from binding the public under the guise of interpretive public guidance. Indeed, in a November 16, 2017, memo, then-Attorney General Jeff Sessions instructed agencies within the Department of Justice (including the ATF) that they are barred from issuing guidance documents “that effectively bind private parties without undergoing” the notice-and-comment rulemaking process required under the APA. Subsequently, in May 2019, at the Compliance Week Annual Conference in Washington, D.C., the Principal Deputy Associate Attorney General Claire McCusker Murray acknowledged that “rulemaking can be cumbersome and slow. For that reason, agencies can be tempted to use sub-regulatory guidance as a short-cut when they should be undertaking notice-and-comment rulemaking instead.”
According to Franklin Armory, the ATF has assured the company that “consumers and licensees are not in jeopardy for the transfers and activities related to 18 U.S.C. §922(a) (4) and (b)(4) that occurred prior to the publication of the Open Letter.” But what if such activities happen after the publication of the Open Letter? Will the ATF undergo enforcement action against individuals who violate §922(a)(4) and (b)(4) with GCA/SBS firearms? Are there any other firearms out there besides the Reformation that ATF could determine are GCA/SBS?
The public did not have any advance notice of this new classification or the suspension of transfers and interstate transport this Open Letter effectuates. And, in case you are wondering, the Open Letter does not satisfy the APA requirement for notice-and-comment period to address this new classification type and the accompanying restrictions on transfers and interstate transport. Indeed, as the ATF explains on its website, Open Letters “do not have the force and effect of federal statutes or Department of Justice Regulations” but are published by the ATF “to remind or assist licensees with understanding their regulatory compliance responsibilities under the laws and regulations administered by ATF.”
The public will not have the opportunity to comment on the ATF processes and forms for the GCA/SBS until the agency publishes a notice in the Federal Register. Until then, the Open Letter gives the impression it is the ATF’s expectation the public will abide by the restrictions set out in the Open Letter or be in violation of the GCA. So is this Open Letter truly guidance or rulemaking?
*Portions of this article first appeared in a Reeves & Dola Alert, dated December 20, 2019, authored by Johanna Reeves (available at reevesdola.com/alerts).
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The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.
ABOUT THE AUTHOR
Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, D.C. (reevesdola.com). For more than 15 years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2011, Johanna has served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (F.A.I.R.) Trade Group (fairtradegroup.org). She has also served as a member of the Defense Trade Advisory Group (DTAG) since 2016. Johanna can be reached at jreeves@reevesdola.com or 202- 715-9941.
| This article first appeared in Small Arms Review V24N4 (April 2020) |
