By JOHANNA REEVES, ESQ.
ATF’s Proposed Rulemaking Will Expand Scope of Federal Firearm Controls—Part II
As promised in Part I of this series (published in Small Arms Review Vol. 25, No. 6), we now take a look at the proposed revisions to the firearm marking requirements and the impact on privately made firearms. As you may recall, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) drafted the Notice of Proposed Rulemaking (NPRM) with two primary objectives. One is to update the term “frame or receiver” into a living definition capable of capturing modern firearms technology and changes in terminology. In Part I, we reviewed ATF’s proposed changes to the term “frame or receiver” that would move away from the rigid definition of specifying three specific fire control components (the hammer, bolt or breechblock, and firing mechanism) and replace it with language general enough to capture changes in technology.
In this article we will focus on ATF’s other objective, which is to revise the regulations to specify at what point an unregulated article becomes a “firearm” subject to the Gun Control Act of 1968 (“GCA”). As drafted, the NPRM would expand GCA controls to partially machined bodies and parts kits that have reached a certain stage they may “readily” be completed, assembled, converted, or restored to a functional state. The proposed rule adds that “partially complete” will mean a forging, casting, printing, extrusion, machined body, or similar article that has reached a stage in manufacture where it is clearly identifiable as an unfinished component part of a weapon.
As a quick refresher, the GCA defines “firearm” to mean (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm. 18 U.S.C. § 922(a)(3) (emphasis added).
Pursuant to this statutory definition, a device is a controlled firearm if it is either designed to or can readily be converted into a device that expels a projectile by the action of an explosive, or it is a frame or receiver of such a device. However, neither the GCA nor the current regulations identify at what point an article becomes subject to the GCA controls. With this NPRM, ATF is attempting to remedy this, but a key question may be whether the proposed fixes exceed the scope of the statute.
The term “readily” is used in the GCA in several contexts, including interstate transportation of firearms at 18 U.S.C. 926A (allowing interstate transport of a firearm if it is unloaded and not readily accessible) and importability of firearms generally recognized as particularly suitable for or readily adaptable to sporting purposes (18 U.S.C. 925(d)(3)).
As we discussed above, the term is also in the definition of “firearm” and is the key qualifier by which the statute controls not just those weapons that function as firearms, or are designed to function as firearms, (expel a projectile by the action of an explosive) but also weapons which may be readily converted into a firearm. The statute, however, does not define “readily.”
As a result of the statute’s silence on the term, ATF’s current regulations also do not define “readily.” And this is becoming increasingly important. Determining when something becomes a firearm is at the heart of the GCA, it is the foundation upon which most controls are based. Because the concept of something being readily convertible into a firearm affects partially machined bodies and parts kits, just how ATF interprets “readily” is of critical importance and has been for some time.
For example, ATF is often asked whether a partially machined block of metal or plastic is a “blank” or a “firearm.” This is important because as soon as a that blank is a “firearm” it is subject to the GCA and that statute’s interstate controls over transfer and possession, the qualifications to engage in the business, and marking and recordkeeping requirements.
For manufacturers, identifying when something becomes a firearm impacts supply chains and how business is conducted with vendors. Important operational questions must be considered, such as whether the vendor needs a license from ATF to manufacture firearms, or whether a marking variance is needed. For importers, if that blank coming in is in fact a “firearm,” the GCA restrictions on firearm imports will apply.
Also impacted by the concept of “readily” and ATF’s interpretation of the term is the market for so-called “80% receivers.” The term “80% receiver” (and similar language such as “80% finished,” “80% complete,” and “unfinished receiver”) is often used to identify an item some believe is not a controlled “firearm” under the GCA because it is only partially machined. However, none of these phrases are used in the statute or in ATF regulations, and ATF has not endorsed any of these terms. So, how ATF will interpret and apply “readily” will have a significant impact on this market that has exploded in recent years.
This brings us to the new definition of the term “readily,” which ATF proposes to add to its regulations at 27 C.F.R. § 478.11 and § 479.11. As proposed in the NPRM at 27747, the definition is as follows:
Readily: A process that is fairly or reasonably efficient, quick, and easy, but not necessarily the most efficient, speedy, or easy process. Factors relevant in making this determination, with no single one controlling, include the following:
- (a) Time, i.e., how long it takes to finish the process;
- (b) Ease, i.e., how difficult it is to do so;
- (c) Expertise, i.e., what knowledge and skills are required;
- (d) Equipment, i.e., what tools are required;
- (e) Availability, i.e., whether additional parts are required, and how easily they can be obtained;
- (f) Expense, i.e., how much it costs;
- (g) Scope, i.e., the extent to which the subject of the process must be changed to finish it; and
- (h) Feasibility, i.e., whether the process would damage or destroy the subject of the process, or cause it to malfunction.* * * * *
In addition to defining the term “readily,” ATF proposes to revise the existing definitions of “frame or receiver” and “firearm” by using “readily” to capture partially made, disassembled, or inoperable frames or receivers as well as parts kits that may be readily assembled, completed, converted or restored to expel a projectile by the action of an explosive.
Partially Complete, Disassembled, or Inoperable Frame or Receiver
As we’ve discussed, under the current regulations, there is little to no guidance on when an unregulated piece of metal or plastic becomes a controlled “firearm” under the GCA. According to ATF, “[c]larifying this issue is needed to deter the increased sale or distribution of unlicensed and unregulated partially complete or unassembled frames or receivers often sold within parts kits that can readily be completed or assembled to a functional state.” NPRM at 27729.
In the NPRM, ATF explains that its longstanding approach is to examine the degree of completeness in determining whether the item is a firearm subject to the GCA controls. Of course, this will vary depending on the model of the firearm, but the rule, ATF explains, is that an unregulated piece of metal, plastic, or other material becomes a regulated frame or receiver when it has “reached a critical stage of manufacture.” NPRM at 27729.
Understandably, there has been a lot of confusion and uncertainty in industry and elsewhere about where this critical line is drawn, and until now ATF has not published a standard to aid industry and the public, other than private classification rulings. So, with this NPRM, ATF aims to clarify when the “critical stage of manufacture” occurs making the article a regulated “frame or receiver.”
Recall from Part I of this series, ATF’s proposed revisions to the definition of “frame or receiver” include four “supplements” (labeled as paragraphs (a), (b), (c), and (d) within the definition). Each of these “supplements” is intended to further explain the meaning of the term for certain firearm designs and configurations. Supplement (c) was drafted for “partially complete, disassembled, or inoperable frame or receiver,” and explains that a controlled “frame or receiver” includes one that “has reached a stage in manufacture where it may readily be completed, assembled, converted, or restored to a functional state.”
To determine this status, “the Director may consider any available instructions, guides, templates, jigs, equipment, tools, or marketing materials.” The draft regulation goes on to state that the phrase “partially complete” as it modifies “frame or receiver” means “a forging, casting, printing, extrusion, machined body, or similar article that has reached a stage in manufacture where it is clearly identifiable as an unfinished component part of a weapon.” NPRM at 27746.
But this is not the only definition to contain “readily.” ATF also proposes revising the regulatory definition of “firearm” and broadening the scope of that term to include certain parts kits.
Currently, the regulatory definition of “firearm” at 27 C.F.R. § 478.11 mirrors the statutory definition:
“Firearm. Any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; or any destructive device; but the term shall not include an antique firearm. In the case of a licensed collector, the term shall mean only curios and relics.”
In the NPRM, ATF proposes adding the following language at the end of the definition: “The term shall include a weapon parts kit that is designed to or may readily be assembled, completed, converted, or restored to expel a projectile by the action of an explosive. The term shall not include a weapon, including a weapon parts kit, in which each part defined as a frame or receiver of such weapon is destroyed.” NPRM at 27741 (emphasis added). Note that ATF’s fourth proposed supplement (supplement (d)) to the definition “frame or receiver” addresses what constitutes a “destroyed frame or receiver,” and this also incorporates “readily” (“the term ‘destroyed’ means permanently altered and “may not readily be assembled, completed, converted, or restored to a functional state.”). NPRM at 27746.
Readily and the NFA
In addition to all the impacts “readily” will bring under the GCA, the term will also be incorporated into the National Firearms Act (NFA) implementing regulations at 27 CFR Part 479. The term “frame or receiver” will also be updated in Part 479 to mirror that of Part 478. Under the NFA, the definition of “machinegun” includes any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger, as well as any “frame or receiver” of any such weapon.
As with the GCA, because of the concept of something being readily restored to be a machinegun under the NFA, how ATF interprets “readily” is of critical importance.
As the statutory definition of “firearm” necessarily remains unchanged without congressional action, ATF’s justification and reasoning for expanding the regulatory definition hinges on “readily” and the case law interpreting the terms “may readily be converted to expel a projectile” in 18 U.S.C. 921(a)(3)(A) and “can be readily restored to shoot” in 26 U.S.C. 5845(b). NPRM at 27730 and n. 58.
The Problem of Ghost Guns
The term “ghost guns,” or privately made firearms (‘‘PMFs’’) as the NPRM calls them, refers to the firearms unlicensed individuals make that are not serialized or marked with any identifying information, either from kits, 3D printers or other standalone parts. The NPRM addresses these firearms by revising the definition of “frame or receiver” (see above, primarily the supplement for partially complete, disassembled, or inoperable frame or receiver) and revising the regulatory definition of “firearm” to include a weapon parts kit that is designed to or may readily be assembled, completed, converted, or restored to expel a projectile by the action of an explosive.
A key part of the NPRM in addition to the definition changes is the prosed new marking requirements that would revise 27 C.F.R. § 478.92. Specifically, this rule proposes to amend § 478.92 to require FFLs acquiring PMFs to mark, or supervise the marking of, the same serial number on each frame or receiver (as defined in the proposed rule) of a weapon that begins with the FFL’s abbreviated license number (first three and last five digits) as a prefix followed by a hyphen on any ‘‘privately made firearm’’ (as defined) that the licensee acquired (e.g., ‘‘12345678–[number]’’).
The NPRM explains that “PMFs acquired by licensees on or after the effective date of the rule would need to be marked in this manner within seven days of receipt or other acquisition (including from a personal collection), or before the date of disposition (including to a personal collection), whichever is sooner. For PMFs acquired by licensees before the effective date of the rule, licensees would be required to mark or cause them to be marked by another licensee either within 60 days from that date, or before the date of final disposition (including to a personal collection), whichever is sooner. With respect to polymer firearms, including those that are produced using additive manufacturing (also known as ‘‘3D printing’’), the method of marking would typically require the licensee to embed (or use pre-existing) metal serial number plates within the plastic to ensure they cannot be worn away during normal use.” NPRM at 27732.
ATF argues that this is necessary to allow ATF to trace all firearms acquired and disposed of by licensees, prevent illicit firearms trafficking, and provide guidance to FFLs and the public with respect to PMF transactions with the licensed community. ATF goes on to cite as support for the need to mark PMFs the advances in technology that allow unlicensed persons easily to produce firearms at home from parts ordered online, or by using 3D printers or personally owned or leased equipment.
ATF does note that nothing in this rule would restrict persons not otherwise prohibited from possessing firearms from making their own firearms at home—without markings—solely for personal use (not for sale or distribution) in accordance with Federal, State, and local law. The new proposed marking requirements would only be triggered if the firearm was transferred to an FFL, for whatever reason. So, there will still remain a subset of PMFs that will go unmarked.
It is important to remember that this is a proposed rulemaking, and ATF will accept public comments through August 19, 2021. By the time the comment period closes, it is quite likely more than 100,000 will be submitted (as of the date of this writing (June 18, 2021), more than 61,000 comments have been submitted). In addition, ATF has another NPRM that was recently released addressing the factoring criteria for classifying pistols with stabilizing arm braces. I will address this other NPRM in my next article. While an agency is not required to finalize a proposed rulemaking, given the current administration and the prevailing political winds in Washington, I expect ATF will finalize both NPRMs in short order. As always, I will keep you posted.
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 17 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 2016, Johanna has served as a member of the U.S. Department of State’s Defense Trade Advisory Group (DTAG). From 2011 through 2020, Johanna served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (F.A.I.R.) Trade Group (http://fairtradegroup.org). Johanna can be reached at email@example.com or 202-715-9941.
This article first appeared in Small Arms Review V25N7 (August-September 2021)