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ATF "Interpretive Change" (i.e., not a formal rulemaking or statutory change!) Restricts Handgun Imports and May Require NFA Registration Login/Join 
Step by step walk the thousand mile road
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WILEY LAW FIRM: ATF Interpretive Change Restricts Handgun Imports and May Require NFA Registration

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has recently changed the manner in which it interprets the statutory and regulatory definition of “handgun,” thereby further limiting the types of firearms eligible for importation. These determinations are not public, so it is difficult for the regulated community to assess and track shifting agency positions.

The Gun Control Act at 18 U.S.C. § 922(l) broadly prohibits the importation of all firearms into the United States. However, so long as a firearm is not military surplus nor subject to the National Firearms Act, section 925(d)(3) provides a limited exception for those firearms considered by ATF to be “generally recognized as particularly suitable for or readily adaptable to sporting purposes." Over the past half century, ATF has issued several studies and criteria on how it evaluates whether shotguns, rifles, or handguns qualify as “sporting” under the law. The handgun factoring test is the most straightforward of these, with a point tally system that rewards larger and bulkier handguns. If a handgun receives 75 or more points, it is considered “sporting” and approved for importation. However, there is no ATF-issued “sporting purpose” test for a firearm that fails to fit within the definition of handgun, rifle, or shotgun. Accordingly, ATF has long held that such a firearm is not importable.

Despite ATF previously stating that there is no limit to how long or heavy a handgun should be to qualify as “sporting” under section 925(d)(3), ATF private classification letters issued within the past few months indicate that the agency has shifted course by reinterpreting what constitutes a “handgun.” In company-specific letters, ATF takes the position that if a submitted firearm is too long or too heavy, it fails to meet the definition of “handgun” under the Gun Control Act, as it is not “designed to be held and fired by the use of a single hand.” The Firearms and Ammunition Technology Division (FATD) of ATF—which conducts importability evaluations—says that it is taking a subjective approach to the statute by allowing individual examiners to determine if he or she can fire the weapon with one hand without difficulty.

This approach is resulting in inconsistent determinations, of which the regulated community should take note. Within the past few months, at least one HK91 pistol-style submission as light as 8 pounds, with a barrel length of 8-3/4 inches and an overall length of 21-3/4 inches, has been determined to fall outside the definition of “handgun.” This is a change from previous determinations where firearms weighing over 8 pounds, with 20-inch barrels, and an overall length of approximately 31-1/2 inches were held by FATD to be “handguns.” Since the letters are not publicly available, it is impossible for regulated companies to know the full range of FATD’s determinations. This has serious implications for regulated businesses.

In some of the new letters, ATF has begun listing the following “objective design features” when making its evaluations:

  • Incorporation of rifle sights;
  • Utilization of "rifle caliber ammunition" (both 5.56mm and 7.62mm have been considered as such);
  • Incorporation of “rifle-length barrel;”1
  • The “weapon’s heavy weight;”
  • Ability to accept magazines that range in capacity from 20 rounds to 100 rounds, “which will contribute to the overall weight of the firearm”; and
  • Overall length of the weapon which “creates a front-heavy imbalance when held in one hand.”


However, ATF also noted in the most recent private ruling that the above design features are “neither binding on future classifications nor is any factor individually determinative[.]” ATF explained without elaboration that “the statutory and regulatory definitions provide the appropriate standard in classifying the firearm.” ATF concluded that “a firearm that is too large, too heavy or . . . otherwise not designed to be held and fired in one hand (as demonstrated by the objective features) cannot be a handgun under the statutory definition and cannot be subject to importation criteria governing handguns.” In light of ATF’s subjective and inconsistent analysis of size and weight, it is difficult to predict how the agency will classify any given firearm under this standard.

Revocation of Existing Import Permits

ATF acknowledged in one letter this month that certain firearms previously approved for importation and determined to be handguns “may wrongly have been approved for importation” and that “[s]uch firearms may require reevaluation.” Beyond that, ATF has not acknowledged a change in policy. Instead, it argued that “consideration of the objective design features of a firearm to determine the designed and/or intended use is clearly not a change in policy.” Although “ATF has not developed a definitive list of features that determine whether an item is a ‘pistol’ or ‘handgun[,]’” the non-public letters leave importers to consult the above-mentioned list to assess whether their existing import permits may be revoked or whether new applications will be denied.

Consideration of Certain Handguns as Any Other Weapons (AOW)

The new interpretation of the handgun definition could have additional significant effects on manufacturers and gun owners.

Under the National Firearms Act, a firearm that has an overall length of less than 26 inches and is neither a pistol, rifle nor shotgun is classified as an “Any Other Weapon” (AOW).2 This means that if a firearm under 26 inches in overall length is determined not to be a pistol, rifle, or shotgun, it would necessarily be classified as an AOW.3 AOWs require the payment of a tax and registration with the federal government.

Under ATF’s new reading of the definition, firearms previously classified as large-sized handguns by ATF may now require registration under the National Firearms Act as an AOW.4 Possession of such a firearm without registration is punishable by up to ten years in prison. Since ATF has not articulated a standard, it is difficult to definitively know whether a large handgun is now an AOW because it may be deemed by the agency to be “too large, or too heavy” to fit within the statutory definition of handgun. The only definitive way to know is to submit the firearm to ATF for evaluation, a process that can take over a year.

Interim Final Rule on Improper Agency Guidance

ATF reportedly believes that its new analysis is the only way to conduct evaluations in light of the Department of Justice’s (DOJ) Interim Final Rule on Improper Agency Guidance (IFR)—a procedural rule designed to increase regulatory transparency. That position appears to run contrary to the purpose of the IFR and so far, the agency has not put it in writing. Further, one ATF private letter from this month attempts to shield itself from DOJ’s IFR by indicating that the letter is “not a final classification of the firearm and is not final agency action.” It goes on to say, “if you submit an ATF Form 6 for the importation of the subject firearm, ATF will take appropriate action.” It appears that ATF is saying that the letter is not final agency action until a Form 6 is formally rejected. But given that this firearm was already evaluated pursuant to an ATF Form 6 application, it is unclear what additional steps are available to make this letter final agency action.

* * *

Under ATF’s new interpretation of the handgun definition, millions of AR-15 style pistols could be considered “too large, or too heavy” to fall within ATF’s new interpretation, thereby making them unregistered NFA weapons, and subjecting manufacturers and gun owners to criminal prosecution. Given the private nature of ATF’s classification rulings, and the subjective nature of the analysis, it is extremely difficult to know for sure whether specific firearms fall within the new interpretation. This appears to be part of a continuing trend at ATF to apply firearms statutes in a more restrictive manner without informing the public—a trend that appears unaffected by the IFR. In this uncertain regulatory environment, importers and manufacturers should consult counsel before making significant purchasing, importing, or manufacturing decisions for firearms that could be implicated by ATF’s heretofore unknown and undisclosed analysis.

____________________________________________________________________________________________________


[1] It is unclear what constitutes a “rifle-length barrel” or “rifle caliber ammunition.”

[2] See 26 U.S.C. § 5845(e).

[3] This firm is aware of two FATD determinations where the submitted firearms were determined neither to be pistols (because they were too large or too heavy) nor AOWs (because their overall length exceeded 26 inches). A third FATD determination was issued for a firearm considered too large or too heavy to be a handgun and under 26 inches in overall length. However, unlike the first two letters, this determination did not mention the AOW statute.

[4] Note that while the GCA definition of “handgun” is worded differently from the NFA definition of “pistol,” the core elements are the same.


This was posted by The Military Arms Channel on their Farcebruk page and elsewhere. Other 2A groups are picking this story up.

It is the same disregard for the Administrative Procedures Act, the same disdain for the citizenry's ability to rely on statements approving or disapproving firearms, ammunition, or shooting sports as ATF's recent statements about pistol braces, how they outlawed bump stocks, and more, as far bask as I can recall.

I strongly urge people to read this carefully and reach out to President Trump, Attorney General Barr, and your Congressional representation demanding they shut ATF down for once and all.





Nice is overrated

"It's every freedom-loving individual's duty to lie to the government."
Airsoftguy, June 29, 2018

 
Posts: 29283 | Location: Loudoun County, Virginia | Registered: May 17, 2006Reply With QuoteReport This Post
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First the Honey Badger brace, and now the restriction on long heavy handgun importation...all occurring right before an election.

There can be little doubt what the ATF is subjectively going after, while blatantly ignoring the APA or what it was intended to prevent

I only hope that this latest onerous action produces more outrage and opposition response by gun owners than the Bump Stock or Honey Badger brace did.
 
Posts: 5800 | Location: the Centennial state | Registered: August 21, 2006Reply With QuoteReport This Post
Doubtful...
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quote:
shut ATF down for once and all.


This


Best regards,

Tom


I have no comment at this time.
 
Posts: 3069 | Location: Coker Creek,TN | Registered: April 02, 2009Reply With QuoteReport This Post
Bookers Bourbon
and a good cigar
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Hopefully President Trump can bring this out of control agency under some form of 2A responsible leadership.



“Fate whispers to the warrior, 'You can not withstand the storm.'
The warrior whispers back, 'I AM THE STORM."


NRA ENDOWMENT LIFE MEMBER
 
Posts: 5692 | Location: Arkansas  | Registered: November 06, 2010Reply With QuoteReport This Post
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The ATF needs to be crushed out of existence And it’s leadership should be behind bars.

At the very least eliminate its rule making authority. And rescind every rule it’s made in the last 20 years
 
Posts: 50740 | Location: Tucson Arizona | Registered: January 16, 2002Reply With QuoteReport This Post
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quote:
Originally posted by Modern Day Savage:
First the Honey Badger brace, and now the restriction on long heavy handgun importation...all occurring right before an election.

There can be little doubt what the ATF is subjectively going after, while blatantly ignoring the APA or what it was intended to prevent

I only hope that this latest onerous action produces more outrage and opposition response by gun owners than the Bump Stock or Honey Badger brace did.


This is also how they do an end around Q's efforts and make all large format pistols verboten or require AOW stamps. Doesn't matter to them that the law doesn't restrict them.

What's most concerning is that brace or no brace, all the sudden we'd be in posession of an NFA-controlled item? ATF cannot rewrite the law, only Congress can.
 
Posts: 2270 | Location: Leesburg VA | Registered: December 21, 2014Reply With QuoteReport This Post
Step by step walk the thousand mile road
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quote:
Originally posted by nhtagmember:
The ATF needs to be crushed out of existence And it’s leadership should be behind bars.

At the very least eliminate its rule making authority. And rescind every rule it’s made in the last 20 years


And make the core finding of every letter responding to inquires as to legal status or interpretation of the law PUBLICLY ACCESSIBLE ON LINE AND SEARCHABLE BY SIMPLE KEYWORD SEARCH. Redact only that information necessary to protect personally identifiable information.





Nice is overrated

"It's every freedom-loving individual's duty to lie to the government."
Airsoftguy, June 29, 2018

 
Posts: 29283 | Location: Loudoun County, Virginia | Registered: May 17, 2006Reply With QuoteReport This Post
Lead slingin'
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quote:
Originally posted by PGT:
quote:
Originally posted by Modern Day Savage:
First the Honey Badger brace, and now the restriction on long heavy handgun importation...all occurring right before an election.

There can be little doubt what the ATF is subjectively going after, while blatantly ignoring the APA or what it was intended to prevent

I only hope that this latest onerous action produces more outrage and opposition response by gun owners than the Bump Stock or Honey Badger brace did.


This is also how they do an end around Q's efforts and make all large format pistols verboten or require AOW stamps. Doesn't matter to them that the law doesn't restrict them.

What's most concerning is that brace or no brace, all the sudden we'd be in posession of an NFA-controlled item? ATF cannot rewrite the law, only Congress can.


Exactly. One of the points I was attempting to make is, despite the assertion by some, this is far broader than the ATF targeting one manufacturer (Q) or one model (Honey Badger). From the first inklings of this arbitrary subjective re-interpretation this past Summer until now, ATF has quietly been working towards this new administrative attack.

It also appears that this is coming from ATF D.C., and not the Boston field office, and, if I understand the O.P. correctly, it also appears that ATF is pushing back against the DOJ oversight ruling.
 
Posts: 5800 | Location: the Centennial state | Registered: August 21, 2006Reply With QuoteReport This Post
Big Stack
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IIRC, the ATF was created by statute (the NFA), and could only be eliminated by statute (likely repealing he NFA.) This would likely require the Republicans to be holding the White House, House of Representatives, and the Senate (with a filibuster proof majority), if they'd even do it if they did. Looking at the current political situation, I don't see that happening any time soon.

In point of fact, actually imposing the rules being discussed in incumbent on Biden getting elected.

If the ATF wanted to mobilize pro-gun rights voters to get out for Trump, they're doing a pretty good job of it.

quote:
Originally posted by TomS:
quote:
shut ATF down for once and all.


This
 
Posts: 20189 | Registered: November 05, 2003Reply With QuoteReport This Post
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quote:
Originally posted by BBMW:
If the ATF now wanted to mobilize pro-gun rights voters to get out for Trump, they're doing a pretty good job of it.


True...but, I'm going to repeat the point I made a couple weeks ago in one of the Honey Badger brace threads, the best time to act is NOW, right before a contentious election in which elected politicians and bureacrats are likely to be more responsive to voter complaints about vague arbitrary subjective actions occurring within their administration. If they want the votes before election day they better get off their asses and start knockin' heads inside their administration.

Make no mistake, if President Trump wins re-election, he is going to be busy taking victory laps, replacing people in his administration, setting new agendas, dealing with ongoing high profile issues (C-19, riots, election litigation, domestic/ foreign affairs) etc...and while we, as gun owners understand how big an issue this is, it will quickly slide down the priority scale for President Trump to act on...

... however, if Biden should win he is much more likely to prioritize administrative actions like this...against gun owners.

NOW is the time to start contacting the White House, contacting the DOJ, contacting senators and congressman, and contacting the NRA and other Pro-2A orgs. and expressing your outrage and opposition to these new arbitrary, subjective, capricious ATF actions.

I have a senator up for re-election, and the President as well, and I plan on rattling the cage over this issue RTFN

This message has been edited. Last edited by: Modern Day Savage,
 
Posts: 5800 | Location: the Centennial state | Registered: August 21, 2006Reply With QuoteReport This Post
delicately calloused
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Unelected, unaccountable bureaucratic power of interpretation. That is the definition of tyranny.



You’re a lying dog-faced pony soldier
 
Posts: 26829 | Location: Highland, Ut. | Registered: May 07, 2008Reply With QuoteReport This Post
Yew got a spider
on yo head
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quote:
Originally posted by darthfuster:
Unelected, unaccountable bureaucratic power of interpretation. That is the definition of tyranny.


Damn right.
 
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quote:
Originally posted by darthfuster:
Unelected, unaccountable bureaucratic power of interpretation. That is the definition of tyranny.


Absolutely right.
 
Posts: 2153 | Registered: May 17, 2006Reply With QuoteReport This Post
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Perhaps as a work around they can re-locate their factories in the U.S.?


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Posts: 3704 | Location: Florida Panhandle | Registered: September 27, 2009Reply With QuoteReport This Post
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quote:
Originally posted by HayesGreener:
Perhaps as a work around they can re-locate their factories in the U.S.?


That's only one angle on this. It also affects all domestic production of large format pistols with assistive devices. To wit; Kalasknikov USA also got a Cease & Desist over their Komrad-12 which is a "firearm" over 26" OAL and has a brace and a less than 18" smooth bore 12ga barrel. Made in Florida. Their Congressman Rep Gaetz is the one who penned the letter to ATF this summer demanding an accounting for the overreaches.

This message has been edited. Last edited by: PGT,
 
Posts: 2270 | Location: Leesburg VA | Registered: December 21, 2014Reply With QuoteReport This Post
Oriental Redneck
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quote:
Originally posted by PGT:
Their Congressman Rep Gaetz is the one who penned the letter to ATF this summer demanding an accounting for the overreaches.

Turns out that Gaetz wasn't grandstanding and blowing smoke, after all. I was wrong for accusing him so.


Q






 
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quote:
Originally posted by 12131:
quote:
Originally posted by PGT:
Their Congressman Rep Gaetz is the one who penned the letter to ATF this summer demanding an accounting for the overreaches.

Turns out that Gaetz wasn't grandstanding and blowing smoke, after all. I was wrong for accusing him so.
Gaetz is my Congressman. Thus far I am pleased with his positions.


CMSGT USAF (Retired)
Chief of Police (Retired)
Florida Class K Licensed Instructor
NRA Certified LE Handgun/Shotgun/Rifle Instructor
SIG and Glock and Springfield 1911 Armorer
 
Posts: 3704 | Location: Florida Panhandle | Registered: September 27, 2009Reply With QuoteReport This Post
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We cannot keep saying “this won’t happen”. ATF has shown they are perfectly willing to either tax the heck out of us by broadening the NFA, make us criminals overnight, and or press their non-2a political creed as far and as often as possible.

We definitely need politicians and courts mobilized to stop this and then further make it so it cannot happen again. My Congress critters know this from me and hopefully others...though those of us with Dim reps are a bit SOL.





“Forigive your enemy, but remember the bastard’s name.”

-Scottish proverb
 
Posts: 1908 | Location: South Florida | Registered: December 24, 2007Reply With QuoteReport This Post
Big Stack
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Let's be a little honest here, this isn't broadening the NFA. The NFA has clear requirements about short barreled rifles. They may be nonsensical, but they're quite definitely in there. By first allowing AR "pistols", and then the "stabilizing brace", they essentially created a loophole. They now seem to want to close the loophole.

Of course, there are probably now seven figures of AR pistols out there, probably most with stabilizing braces. So by opening the loophole, letting it stay open for a substantial period of time, and now trying to close it, they're going to kick a major hornet's nest.

As I said above, a lot of how this plays out depends on who wins the presidential election.

quote:
Originally posted by FlyingScot:
We cannot keep saying “this won’t happen”. ATF has shown they are perfectly willing to either tax the heck out of us by broadening the NFA, make us criminals overnight, and or press their non-2a political creed as far and as often as possible.

We definitely need politicians and courts mobilized to stop this and then further make it so it cannot happen again. My Congress critters know this from me and hopefully others...though those of us with Dim reps are a bit SOL.
 
Posts: 20189 | Registered: November 05, 2003Reply With QuoteReport This Post
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Several elected officials have been calling for accountability beginning in the summer. Add in the EO banning more rule-making and refusal to submit to DOJ OIG inquiries, and you've got an agency thumbing it's nose at oversight.

 
Posts: 2270 | Location: Leesburg VA | Registered: December 21, 2014Reply With QuoteReport This Post
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