Bump-Stock-Type Devices
| Published date | 26 December 2018 |
| Citation | 83 FR 66514 |
| Record Number | 2018-27763 |
| Section | Rules and Regulations |
| Court | Alcohol, Tobacco, Firearms, And Explosives Bureau |
Federal Register, Volume 83 Issue 246 (Wednesday, December 26, 2018)
[Federal Register Volume 83, Number 246 (Wednesday, December 26, 2018)]
[Rules and Regulations]
[Pages 66514-66554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27763]
[[Page 66513]]
Vol. 83
Wednesday,
No. 246
December 26, 2018
Part IVDepartment of Justice-----------------------------------------------------------------------Bureau of Alcohol, Tobacco, Firearms, and Explosives-----------------------------------------------------------------------27 CFR Parts 447, 478, and 479Bump-Stock-Type Devices; Rule
Federal Register / Vol. 83 , No. 246 / Wednesday, December 26, 2018 /
Rules and Regulations
[[Page 66514]]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Parts 447, 478, and 479
[Docket No. 2018R-22F; AG Order No. 4367-2018]
RIN 1140-AA52
Bump-Stock-Type Devices
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives;
Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice is amending the regulations of the
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to clarify
that bump-stock-type devices--meaning ``bump fire'' stocks, slide-fire
devices, and devices with certain similar characteristics--are
``machineguns'' as defined by the National Firearms Act of 1934 and the
Gun Control Act of 1968 because such devices allow a shooter of a
semiautomatic firearm to initiate a continuous firing cycle with a
single pull of the trigger. Specifically, these devices convert an
otherwise semiautomatic firearm into a machinegun by functioning as a
self-acting or self-regulating mechanism that harnesses the recoil
energy of the semiautomatic firearm in a manner that allows the trigger
to reset and continue firing without additional physical manipulation
of the trigger by the shooter. Hence, a semiautomatic firearm to which
a bump-stock-type device is attached is able to produce automatic fire
with a single pull of the trigger. With limited exceptions, the Gun
Control Act, as amended, makes it unlawful for any person to transfer
or possess a machinegun unless it was lawfully possessed prior to the
effective date of the statute. The bump-stock-type devices covered by
this final rule were not in existence prior to the effective date of
the statute, and therefore will be prohibited when this rule becomes
effective. Consequently, under the final rule, current possessors of
these devices will be required to destroy the devices or abandon them
at an ATF office prior to the effective date of the rule.
DATES: This rule is effective March 26, 2019.
FOR FURTHER INFORMATION CONTACT: Vivian Chu, Office of Regulatory
Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco,
Firearms, and Explosives, U.S. Department of Justice, 99 New York Ave.
NE, Washington, DC 20226; telephone: (202) 648-7070.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Summary of the Regulatory Action
B. Summary of Costs and Benefits
II. Background
A. Regulatory Context
B. Las Vegas Shooting
C. Advance Notice of Proposed Rulemaking
III. Notice of Proposed Rulemaking
A. Prior Interpretations of ``Single Function of the Trigger''
and ``Automatically''
B. Re-Evaluation of Bump-Stock-Type Devices
C. Proposed Definition of ``Single Function of the Trigger''
D. Proposed Definition of ``Automatically''
E. Proposed Clarification That the Definition of ``Machinegun''
Includes Bump-Stock-Type Devices
F. Amendment of 27 CFR 479.11
G. Amendment of 27 CFR 478.11
H. Amendment of 27 CFR 447.11
IV. Analysis of Comments and Department Responses for Proposed Rule
A. Comments Generally Supporting the Rule
B. Particular Reasons Raised in Support of the Rule
C. Comments Generally Opposing the Rule
D. Specific Issues Raised in Opposition to the Rule
E. ATF Suggested Alternatives
F. Other Alternatives
G. Proposed Rule's Statutory and Executive Order Review
H. Affected Population
I. Costs and Benefits
J. Regulatory Flexibility Act
K. Miscellaneous Comments
L. Comments on the Rulemaking Process
V. Final Rule
VI. Statutory and Executive Order Review
A. Executive Orders 12866, 13563, and 113771
B. Executive Order 113132
C. Executive Order 112988
D. Regulatory Flexibility Act
E. Small Business Regulatory Enforcement Fairness Act of 1996
F. Congressional Review Act
G. Unfunded Mandates Reform Act of 1995
H. Paperwork Reduction Act of 1995
I. Executive Summary
A. Summary of the Regulatory Action
The current regulations at Sec. Sec. 447.11, 478.11, and 479.11 of
title 27, Code of Federal Regulations (CFR), contain definitions for
the term ``machinegun.'' \1\ The definitions used in 27 CFR 478.11 and
479.11 match the statutory definition of ``machinegun'' in the National
Firearms Act of 1934 (NFA), as amended, and the Gun Control Act of 1968
(GCA), as amended. Under the NFA, the term ``machinegun'' means ``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.'' 26 U.S.C. 5845(b). The term
``machinegun'' also includes ``the frame or receiver of any such
weapon'' or any part or combination of parts designed and intended
``for use in converting a weapon into a machinegun,'' and ``any
combination of parts from which a machinegun can be assembled if such
parts are in the possession or under the control of a person.'' Id.
This definition uses the key terms ``single function of the trigger''
and ``automatically,'' but these terms are not defined in the statutory
text.
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\1\ Regulations implementing the relevant statutes spell the
term ``machine gun'' rather than ``machinegun.'' E.g., 27 CFR
478.11, 479.11. For convenience, this notice uses ``machinegun''
except when quoting a source to the contrary.
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The definition of ``machinegun'' in 27 CFR 447.11, promulgated
pursuant to the portion of section 38 of the Arms Export Control Act
(AECA) (22 U.S.C. 2778) delegated to the Attorney General by section
1(n)(ii) of Executive Order 13637 (78 FR 16129), is similar. Currently,
the definition of ``machinegun'' in Sec. 447.11 provides that a
```machinegun', `machine pistol', `submachinegun', or `automatic rifle'
is a firearm originally designed to fire, or capable of being fired
fully automatically by a single pull of the trigger.''
In 2006, ATF concluded that certain bump-stock-type devices
qualified as machineguns under the NFA and GCA. Specifically, ATF
concluded that a device attached to a semiautomatic firearm that uses
an internal spring to harness the force of a firearm's recoil so that
the firearm shoots more than one shot with a single pull of the trigger
is a machinegun. Between 2008 and 2017, however, ATF also issued
classification decisions concluding that other bump-stock-type devices
were not machineguns, primarily because the devices did not rely on
internal springs or similar mechanical parts to channel recoil energy.
Decisions issued during that time did not include extensive legal
analysis relating to the definition of ``machinegun.'' ATF undertook a
review of its past classifications and determined that those
conclusions did not reflect the best interpretation of ``machinegun''
under the NFA and GCA.
ATF decided to promulgate a rule that would bring clarity to the
definition of ``machinegun''--specifically with respect to the terms
``automatically'' and ``single function of the trigger,'' as those
terms are used to define ``machinegun.'' As an initial step in the
process of promulgating a rule, on December 26, 2017, the Department of
Justice (Department) published in the Federal
[[Page 66515]]
Register an advance notice of proposed rulemaking titled ``Application
of the Definition of Machinegun to `Bump Fire' Stocks and Other Similar
Devices.'' 82 FR 60929. Subsequently, on March 29, 2018, the Department
published in the Federal Register a notice of proposed rulemaking
(NPRM) titled ``Bump-Stock-Type Devices.'' 83 FR 13442.
The NPRM proposed to amend the regulations at 27 CFR 447.11,
478.11, and 479.11 to clarify that bump-stock-type devices are
``machineguns'' as defined by the NFA and GCA because such devices
allow a shooter of a semiautomatic firearm to initiate a continuous
firing cycle with a single pull of the trigger. Specifically, these
devices convert an otherwise semiautomatic firearm into a machinegun by
functioning as a self-acting or self-regulating mechanism that
harnesses the recoil energy of the semiautomatic firearm in a manner
that allows the trigger to reset and continue firing without additional
physical manipulation of the trigger by the shooter. Hence, a
semiautomatic firearm to which a bump-stock-type device is attached is
able to produce automatic fire with a single pull of the trigger. 83 FR
at 13447-48.
The NPRM proposed regulatory definitions for the statutory terms
``single function of the trigger'' and ``automatically,'' and
amendments of the regulatory definition of ``machinegun'' for purposes
of clarity. Specifically, the NPRM proposed to amend the definitions of
``machinegun'' in Sec. Sec. 478.11 and 479.11, define the term
``single function of the trigger'' to mean ``single pull of the
trigger,'' and define the term ``automatically'' to mean ``as the
result of a self-acting or self-regulating mechanism that allows the
firing of multiple rounds through a single pull of the trigger.'' 83 FR
at 13447-48. The NPRM also proposed to clarify that the definition of
``machinegun'' includes a device that allows a semiautomatic firearm to
shoot more than one shot with a single pull of the trigger by
harnessing the recoil energy of the semiautomatic firearm to which it
is affixed so that the trigger resets and continues firing without
additional physical manipulation of the trigger by the shooter
(commonly known as bump-stock-type devices). Id. at 13447. Finally, the
NPRM proposed to harmonize the definition of ``machinegun'' in Sec.
447.11 with the definitions in 27 CFR parts 478 and 479, as those
definitions would be amended. Id. at 13448.
The goal of this final rule is to amend the relevant regulatory
definitions as described above. The Department, however, has revised
the definition of ``single function of the trigger'' to mean ``single
pull of the trigger'' and analogous motions, taking into account that
there are other methods of initiating an automatic firing sequence that
do not require a pull. This final rule also informs current possessors
of bump-stock-type devices of the proper methods of disposal, including
destruction by the owner or abandonment to ATF.
B. Summary of Costs and Benefits
ATF estimates the total undiscounted cost of this rule at $312.1
million over 10 years. The total 7% discount cost is estimated at
$245.5 million, and the discounted costs would be $32.8 million and
$35.0 million, annualized at 3% and 7% respectively. The estimate
includes costs to the public for loss of property ($102.5 million);
costs of forgone future production and sales ($198.9 million); costs of
disposal ($9.4 million); and government costs ($1.3 million).
Unquantified costs include potential loss of wages for employees of
bump-stock-type device manufacturers, notification to bump-stock-type
device owners of the need to destroy the devices, and loss of future
usage by the owners of bump-stock-type devices. ATF did not calculate
any cost savings for this final rule.
This final rule clarifies that bump-stock-type devices are
machineguns that are subject to the NFA and GCA. The provisions of
those statutes addressing machineguns are designed to increase public
safety by, among other things, limiting legal access to them.
Consistent with the NFA and GCA, therefore, a desired outcome of this
final rule is increased public safety.
II. Background
A. Regulatory Context
The Attorney General is responsible for enforcing the NFA, as
amended, and the GCA, as amended.\2\ This responsibility includes the
authority to promulgate regulations necessary to enforce the provisions
of the NFA and GCA. See 18 U.S.C. 926(a); 26 U.S.C. 7801(a)(2)(A),
7805(a). The Attorney General has delegated the responsibility for
administering and enforcing the NFA and GCA to the Director of ATF,
subject to the direction of the Attorney General and the Deputy
Attorney General. See 28 CFR 0.130(a)(1)-(2). Accordingly, the
Department and ATF have promulgated regulations implementing both the
NFA and the GCA. See 27 CFR parts 478, 479. In particular, ATF for
decades promulgated rules governing ``the procedural and substantive
requirements relative to the importation, manufacture, making,
exportation, identification and registration of, and the dealing in,
machine guns.'' 27 CFR 479.1; see, e.g., United States v. Dodson, 519
F. App'x 344, 348-49 & n.4 (6th Cir. 2013) (acknowledging ATF's role in
interpreting the NFA's definition of ``machinegun''); F.J. Vollmer Co.
v. Higgins, 23 F.3d 448, 449-51 (D.C. Cir. 1994) (upholding an ATF
determination regarding machinegun receivers). Courts have recognized
ATF's leading regulatory role with respect to firearms, including in
the specific context of classifying devices as machineguns under the
NFA. See, e.g., York v. Sec'y of Treasury, 774 F.2d 417, 419-20 (10th
Cir. 1985).
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\2\ NFA provisions still refer to the ``Secretary of the
Treasury.'' 26 U.S.C. ch. 53. However, the Homeland Security Act of
2002, Public Law 107-296, 116 Stat. 2135, transferred the functions
of ATF from the Department of the Treasury to the Department of
Justice, under the general authority of the Attorney General. 26
U.S.C. 7801(a)(2); 28 U.S.C. 599A(c)(1). Thus, for ease of
reference, this notice refers to the Attorney General.
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The GCA defines ``machinegun'' by referring to the NFA
definition,\3\ which 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.''
26 U.S.C. 5845(b). The term ``machinegun'' also includes ``the frame or
receiver of any such weapon'' or any part, or combination of parts,
designed and intended ``for use in converting a weapon into a
machinegun,'' and any combination of parts from which a machinegun can
be assembled if such parts are in the possession or under the control
of a person. Id. With limited exceptions, the GCA prohibits the
transfer or possession of machineguns under 18 U.S.C. 922(o).
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\3\ 18 U.S.C. 921(a)(23).
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In 1986, Congress passed the Firearms Owners' Protection Act
(FOPA), Public Law 99-308, 100 Stat. 449, which included a provision
that effectively froze the number of legally transferrable machineguns
to those that were registered before the effective date of the statute.
18 U.S.C. 922(o). Due to the fixed universe of ``pre-1986'' machineguns
that may be lawfully transferred by nongovernmental entities, the value
of those machineguns has steadily increased over time. This price
premium on automatic weapons has spurred inventors and manufacturers to
develop firearms, triggers, and other devices that permit shooters to
use semiautomatic rifles to replicate
[[Page 66516]]
automatic fire without converting these rifles into ``machineguns''
under the NFA and GCA. ATF began receiving classification requests for
such firearms, triggers, and other devices that replicate automatic
fire beginning in 1988. ATF has noted a significant increase in such
requests since 2004, often in connection with rifle models that were,
until 2004, defined as ``semiautomatic assault weapons'' and prohibited
under the Public Safety and Recreational Firearms Use Protection Act,
18 U.S.C. 921(a)(30) (sunset effective Sept. 13, 2004).
ATF received classification requests pertaining to bump-stock-type
devices. Shooters use bump-stock-type devices with semiautomatic
firearms to accelerate the firearms' cyclic firing rate to mimic
automatic fire. These devices replace a rifle's standard stock and free
the weapon to slide back and forth rapidly, harnessing the energy from
the firearm's recoil either through a mechanism like an internal spring
or in conjunction with the shooter's maintenance of pressure (typically
constant forward pressure with the non-trigger hand on the barrel-
shroud or fore-grip of the rifle, and constant rearward pressure on the
device's extension ledge with the shooter's trigger finger).
In 2006, ATF concluded that certain bump-stock-type devices
qualified as machineguns under the NFA and GCA. Specifically, ATF
concluded that devices attached to semiautomatic firearms that use an
internal spring to harness the force of the recoil so that the firearm
shoots more than one shot with a single pull of the trigger are
machineguns. Between 2008 and 2017, however, ATF also issued
classification decisions concluding that other bump-stock-type devices
were not machineguns, including a device submitted by the manufacturer
of the bump-stock-type devices used in the 2017 Las Vegas shooting
discussed below. Those decisions indicated that semiautomatic firearms
modified with these bump-stock-type devices did not fire
``automatically,'' and thus were not ``machineguns,'' because the
devices did not rely on internal springs or similar mechanical parts to
channel recoil energy. (For further discussion of ATF's prior
interpretations, see Part III.A.) Because ATF has not regulated these
certain types of bump-stock-type devices as machineguns under the NFA
or GCA, they have not been marked with a serial number or other
identification markings. Individuals, therefore, have been able to
legally purchase these devices without undergoing background checks or
complying with any other Federal regulations applicable to firearms.
B. Las Vegas Shooting
On October 1, 2017, a shooter attacked a large crowd attending an
outdoor concert in Las Vegas, Nevada. By using several AR-type rifles
with attached bump-stock-type devices, the shooter was able to fire
several hundred rounds of ammunition in a short period of time, killing
58 people and wounding approximately 500. The bump-stock-type devices
recovered from the scene included two distinct, but functionally
equivalent, model variations from the same manufacturer. These types of
devices were readily available in the commercial marketplace through
online sales directly from the manufacturer, and through multiple
retailers.
The Las Vegas bump-stock-type devices, as well as other bump-stock-
type devices available on the market, all utilize essentially the same
functional design. They are designed to be affixed to a semiautomatic
long gun (most commonly an AR-type rifle or an AK-type rifle) in place
of a standard, stationary rifle stock, for the express purpose of
allowing ``rapid fire'' operation of the semiautomatic firearm to which
they are affixed. They are configured with a sliding shoulder stock
molded (or otherwise attached) to a pistol-grip/handle (or ``chassis'')
that includes an extension ledge (or ``finger rest'') on which the
shooter places the trigger finger while shooting the firearm. The
devices also generally include a detachable rectangular receiver module
(or ``bearing interface'') that is placed in the receiver well of the
device's pistol-grip/handle to assist in guiding and regulating the
recoil of the firearm when fired. Bump-stock-type devices, including
those with the aforementioned characteristics, are generally designed
to channel recoil energy to increase the rate of fire of a
semiautomatic firearm from a single trigger pull. Accordingly, when a
bump-stock-type device is affixed to a semiautomatic firearm, the
device harnesses and directs the firearm's recoil energy to slide the
firearm back and forth so that the trigger automatically re-engages by
``bumping'' the shooter's stationary finger without additional physical
manipulation of the trigger by the shooter.
Following the mass shooting in Las Vegas, ATF received
correspondence from members of the United States Congress, as well as
nongovernmental organizations, requesting that ATF examine its past
classifications and determine whether bump-stock-type devices available
on the market constitute machineguns under the statutory definition.
Consistent with its authority to ``reconsider and rectify'' potential
classification errors, Akins v. United States, 312 F. App'x 197, 200
(11th Cir. 2009) (per curiam), ATF reviewed its earlier determinations
for bump-stock-type devices issued between 2008 and 2017 and concluded
that those determinations did not include extensive legal analysis of
the statutory terms ``automatically'' or ``single function of the
trigger.'' The Department decided to move forward with the rulemaking
process to clarify the meaning of these terms, which are used in the
NFA's statutory definition of ``machinegun.''
C. Advance Notice of Proposed Rulemaking
On December 26, 2017, the Department, as an initial step in the
process of promulgating a Federal regulation interpreting the
definition of ``machinegun'' with respect to bump-stock-type devices,
published an advance notice of proposed rulemaking (ANPRM) in the
Federal Register. Application of the Definition of Machinegun to ``Bump
Fire'' Stocks and Other Similar Devices, 82 FR 60929. The ANPRM
solicited comments concerning the market for bump-stock-type devices
and manufacturer and retailer data. Specifically, the Department asked
a series of questions of consumers, retailers, and manufacturers of
bump-stock-type devices regarding the cost of bump-stock-type devices,
average gross receipts of sales, and the volume and cost of
manufacturing, as well as input on the potential effect of a rulemaking
affecting bump-stock-type devices, including viable markets or the cost
of disposing of inventory. Public comment on the ANPRM concluded on
January 25, 2018. While ATF received over 115,000 comments, the vast
majority of these comments were not responsive to the ANPRM.
On February 20, 2018, the President issued a memorandum to the
Attorney General concerning ``bump fire'' stocks and similar devices.
Application of the Definition of Machinegun to ``Bump Fire'' Stocks and
Other Similar Devices, 83 FR 7949. The memorandum noted that the
Department of Justice had already ``started the process of promulgating
a Federal regulation interpreting the definition of `machinegun' under
Federal law to clarify whether certain bump stock type devices should
be illegal.'' Id. The President then directed the Department of
Justice, working within established legal protocols, ``to dedicate all
[[Page 66517]]
available resources to complete the review of the comments received [in
response to the ANPRM], and, as expeditiously as possible, to propose
for notice and comment a rule banning all devices that turn legal
weapons into machineguns.'' Id.
III. Notice of Proposed Rulemaking
On March 29, 2018, the Department published in the Federal Register
a notice of proposed rulemaking (NPRM) titled ``Bump-Stock-Type
Devices,'' 83 FR 13442 (ATF Docket No. 2017R-22), proposing changes to
the regulations in 27 CFR 447.11, 478.11, and 479.11. The comment
period for the proposed rule concluded on June 27, 2018.
A. Prior Interpretations of ``Single Function of the Trigger'' and
``Automatically''
In the NPRM, the Department reviewed ATF's history of classifying
bump-stock-type devices through agency rulings and relevant litigation.
In particular, it described how ATF published ATF Ruling 2006-2,
``Classification of Devices Exclusively Designed to Increase the Rate
of Fire of a Semiautomatic Firearm.'' The ruling explained that ATF had
received requests from ``several members of the firearms industry to
classify devices that are exclusively designed to increase the rate of
fire of a semiautomatic firearm.'' ATF Ruling 2006-2, at 1. Prior to
issuing ATF Ruling 2006-2, ATF had examined a device called the ``Akins
Accelerator.'' To operate the device, the shooter initiated an
automatic firing sequence by pulling the trigger one time, which in
turn caused the rifle to recoil within the stock, permitting the
trigger to lose contact with the finger and manually reset. Springs in
the Akins Accelerator then forced the rifle forward, forcing the
trigger against the finger, which caused the weapon to discharge the
ammunition. The recoil and the spring-powered device thus caused the
firearm to cycle back and forth, impacting the trigger finger without
further input by the shooter while the firearm discharged multiple
shots. The device was advertised as able to fire approximately 650
rounds per minute. See id. at 2.
ATF initially reviewed the Akins Accelerator in 2002 and determined
it not to be a machinegun because ATF interpreted the statutory term
``single function of the trigger'' to refer to a single movement of the
trigger. But ATF undertook further review of the device based on how it
actually functioned when sold and later determined that the Akins
Accelerator should be classified as a machinegun. ATF reached that
conclusion because the best interpretation of the phrase ``single
function of the trigger'' includes a ``single pull of the trigger.''
The Akins Accelerator qualified as a machinegun because ATF determined
through testing that when the device was installed on a semiautomatic
rifle (specifically a Ruger Model 10-22), it resulted in a weapon that
``[with] a single pull of the trigger initiates an automatic firing
cycle that continues until the finger is released, the weapon
malfunctions, or the ammunition supply is exhausted.'' Akins v. United
States, No. 8:08-cv-988, slip op. at 5 (M.D. Fla. Sept. 23, 2008)
(internal quotation marks omitted).
When issuing ATF Ruling 2006-2, ATF set forth a detailed
description of the components and functionality of the Akins
Accelerator and devices with similar designs. The ruling determined
that the phrase ``single function of the trigger'' in the statutory
definition of ``machinegun'' was best interpreted to mean a ``single
pull of the trigger.'' ATF Ruling 2006-2, at 2 (citing National
Firearms Act: Hearings Before the Comm. on Ways and Means, House of
Representatives, Second Session on H.R. 9066, 73rd Cong., at 40
(1934)). ATF further indicated that this interpretation would apply
when the agency classified devices designed to increase the rate of
fire of semiautomatic firearms. Thus, ATF concluded in ATF Ruling 2006-
2 that devices exclusively designed to increase the rate of fire of
semiautomatic firearms were machineguns if, ``when activated by a
single pull of the trigger, [such devices] initiate[ ] an automatic
firing cycle that continues until either the finger is released or the
ammunition supply is exhausted.'' Id. at 3. Finally, because the
``single pull of the trigger'' interpretation constituted a change from
ATF's prior interpretations of the phrase ``single function of the
trigger,'' ATF Ruling 2006-2 concluded that ``[t]o the extent previous
ATF rulings are inconsistent with this determination, they are hereby
overruled.'' Id.
Following its reclassification of the Akins Accelerator as a
machinegun, ATF determined and advised owners of Akins Accelerator
devices that removal and disposal of the internal spring--the component
that caused the rifle to slide forward in the stock--would render the
device a non-machinegun under the statutory definition. Thus, a
possessor could retain the device by removing and disposing of the
spring, in lieu of destroying or surrendering the device.
In May 2008, the inventor of the Akins Accelerator filed a lawsuit
challenging ATF's classification of his device as a machinegun,
claiming the agency's decision was arbitrary and capricious under the
Administrative Procedure Act (APA). Akins v. United States, No. 8:08-
cv-988, slip op. at 7-8 (M.D. Fla. Sept. 23, 2008). The United States
District Court for the Middle District of Florida rejected the
plaintiff's challenge, holding that ATF was within its authority to
reconsider and change its interpretation of the phrase ``single
function of the trigger'' in the NFA's statutory definition of
``machinegun.'' Id. at 14. The court further held that the language of
the statute and the legislative history supported ATF's interpretation
of the statutory phrase ``single function of the trigger'' as
synonymous with ``single pull of the trigger.'' Id. at 11-12. The court
concluded that in ATF Ruling 2006-2, ATF had set forth a ``reasoned
analysis'' for the application of that new interpretation to the Akins
Accelerator and similar devices, including the need to ``protect the
public from dangerous firearms.'' Id. at 12.
The United States Court of Appeals for the Eleventh Circuit
affirmed the district court's decision, holding that ``[t]he
interpretation by the Bureau that the phrase `single function of the
trigger' means a `single pull of the trigger' is consonant with the
statute and its legislative history.'' Akins, 312 F. App'x at 200. The
Eleventh Circuit further concluded that ``[b]ased on the operation of
the Accelerator, the Bureau had the authority to `reconsider and
rectify' what it considered to be a classification error.'' Id.
In ten letter rulings between 2008 and 2017, ATF applied the
``single pull of the trigger'' interpretation to other bump-stock-type
devices. Like the Akins Accelerator, these other bump-stock-type
devices allowed the shooter to fire more than one shot with a single
pull of the trigger. However, ATF ultimately concluded that these
devices did not qualify as machineguns because, in ATF's view, they did
not ``automatically'' shoot more than one shot with a single pull of
the trigger. ATF also applied its ``single pull of the trigger''
interpretation to other trigger actuators, two-stage triggers, and
other devices submitted to ATF for classification. Depending on the
method of operation, some such devices were classified to be
machineguns that were required to be registered in the National
Firearms Registration and Transfer Record (NFRTR) and could not be
transferred or possessed, except in
[[Page 66518]]
limited circumstances, under 18 U.S.C. 922(o).\4\
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\4\ Examples of recent ATF classification letters relying on the
``single pull of the trigger'' interpretation to classify submitted
devices as machineguns include the following:
On April 13, 2015, ATF issued a classification letter
regarding a device characterized as a ``positive reset trigger,''
designed to be used on a semiautomatic AR-style rifle. The device
consisted of a support/stock, secondary trigger, secondary trigger
link, pivot toggle, shuttle link, and shuttle. ATF determined that,
after a single pull of the trigger, the device utilized recoil
energy generated from firing a projectile to fire a subsequent
projectile. ATF noted that ``a `single function of the trigger' is a
single pull,'' and that the device utilized a ``single function of
the trigger'' because the shooter need not release the trigger to
fire a subsequent projectile, and instead ``can maintain constant
pressure through a single function of the trigger.''
On October 7, 2016, ATF issued a classification letter
regarding two devices described as ``LV-15 Trigger Reset Devices.''
The devices, which were designed to be used on an AR-type rifle,
were essentially identical in design and function and were submitted
by the same requester (per the requester, the second device included
``small improvements that have come as the result of further
development since the original submission''). The devices were each
powered by a rechargeable battery and included the following
components: A self-contained trigger mechanism with an electrical
connection, a modified two-position semiautomatic AR-15 type
selector lever, a rechargeable battery pack, a grip assembly/trigger
guard with electrical connections, and a piston that projected
forward through the lower rear portion of the trigger guard and
pushed the trigger forward as the firearm cycled. ATF held that ``to
initiate the firing . . . a shooter must simply pull the trigger.''
It explained that although the mechanism pushed the trigger forward,
``the shooter never releases the trigger. Consistent with [the
requester's] explanation, ATF demonstrated that the device fired
multiple projectiles with a ``single function of the trigger''
because a single pull was all that was required to initiate and
maintain a firing sequence.
---------------------------------------------------------------------------
In the NPRM, the Department also noted that prior ATF rulings
concerning bump-stock-type devices did not provide substantial or
consistent legal analysis regarding the meaning of the term
``automatically,'' as it is used in the NFA and GCA. For example, ATF
Ruling 2006-2 concluded that devices like the Akins Accelerator
initiated an ``automatic'' firing cycle because, once initiated by a
single pull of the trigger, ``the automatic firing cycle continues
until the finger is released or the ammunition supply is exhausted.''
ATF Ruling 2006-2, at 1. In contrast, other ATF letter rulings between
2008 and 2017 concluded that bump-stock-type devices that enable a
semiautomatic firearm to shoot more than one shot with a single
function of the trigger by harnessing a combination of the recoil and
the maintenance of pressure by the shooter do not fire
``automatically.'' Of the rulings issued between 2008 and 2017, ATF
provided different explanations for why certain bump-stock-type devices
were not machineguns, but none of them extensively examined the meaning
of ``automatically.'' For instance, some letter rulings concluded that
certain devices were not machineguns because they did not ``initiate[ ]
an automatic firing cycle that continues until either the finger is
released or the ammunition supply is exhausted,'' without further
defining the term ``automatically.'' E.g., Letter for Michael Smith
from ATF's Firearm Technology Branch Chief (April 2, 2012). Other
letter rulings concluded that certain bump-stock-type devices were not
machineguns because they lacked any ``automatically functioning
mechanical parts or springs and perform[ed] no mechanical function[s]
when installed,'' again without further defining the term
``automatically'' in this context. E.g., Letter for David Compton from
ATF's Firearm Technology Branch Chief (June 7, 2010).
B. Re-Evaluation of Bump-Stock-Type Devices
In the NPRM, the Department reviewed the functioning of
semiautomatic firearms, describing that ordinarily, to operate a
semiautomatic firearm, the shooter must repeatedly pull and release the
trigger to allow it to reset, so that only one shot is fired with each
pull of the trigger. 83 FR at 13443. It then explained that bump-stock-
type devices, like the ones used in Las Vegas, are designed to channel
recoil energy to increase the rate of fire of semiautomatic firearms
from a single trigger pull. Id. Shooters can maintain a continuous
firing cycle after a single pull of the trigger by directing the recoil
energy of the discharged rounds into the space created by the sliding
stock (approximately 1.5 inches) in constrained linear rearward and
forward paths. Id. These bump-stock-type devices are generally designed
to operate with the shooter shouldering the stock of the device (in
essentially the same manner a shooter would use an unmodified
semiautomatic shoulder stock), maintaining constant forward pressure
with the non-trigger hand on the barrel-shroud or fore-grip of the
rifle, and maintaining the trigger finger on the device's ledge with
constant rearward pressure. Id. The device itself then harnesses the
recoil energy of the firearm, providing the primary impetus for
automatic fire. Id.
In light of its reassessment of the relevant statutory terms
``single function of the trigger'' and ``automatically,'' the NPRM
stated ATF's conclusion that bump-stock-type devices are
``machineguns'' as defined in the NFA because they convert an otherwise
semiautomatic firearm into a machinegun by functioning as a self-acting
or self-regulating mechanism that, after a single pull of the trigger,
harnesses the recoil energy of the semiautomatic firearm in a manner
that allows the trigger to reset and continue firing without additional
physical manipulation of the trigger by the shooter. Hence, a
semiautomatic firearm to which a bump-stock-type device is attached is
able to produce automatic fire with a single pull of the trigger.
C. Proposed Definition of ``Single Function of the Trigger''
The Department proposed to interpret the phrase ``single function
of the trigger'' to mean ``a single pull of the trigger,'' as it
considered it the best interpretation of the statute and because it
reflected ATF's position since 2006. The Supreme Court in Staples v.
United States, 511 U.S. 600, 602 n.1 (1994), indicated that a
machinegun within the NFA ``fires repeatedly with a single pull of the
trigger.'' This interpretation is also consistent with how the phrase
``single function of the trigger'' was understood at the time of the
NFA's enactment in 1934. For instance, in a congressional hearing
leading up to the NFA's enactment, the National Rifle Association's
then-president testified that a gun ``which is capable of firing more
than one shot by a single pull of the trigger, a single function of the
trigger, is properly regarded, in my opinion, as a machine gun.''
National Firearms Act: Hearings Before the Committee on Ways and Means,
H.R. 9066, 73rd Cong., 2nd Sess., at 40 (1934). Furthermore, and as
noted above, the Eleventh Circuit in Akins concluded that ATF's
interpretation of ``single function of the trigger'' to mean a ``single
pull of the trigger'' ``is consonant with the statute and its
legislative history.'' 312 F. App'x at 200. No other court has held
otherwise.\5\
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\5\ The NPRM also explained that the term ``pull'' can be
analogized to ``push'' and other terms that describe activation of a
trigger. For instance, ATF used the term ``pull'' in classifying the
Akins Accelerator because that was the manner in which the firearm's
trigger was activated with the device. But the courts have made
clear that whether a trigger is operated through a ``pull,''
``push,'' or some other action such as a flipping a switch, does not
change the analysis of the functionality of a firearm. For example,
in United States v. Fleischli, 305 F.3d 643, 655-56 (7th Cir. 2002),
the Seventh Circuit rejected the argument that a switch did not
constitute a trigger for purposes of assessing whether a firearm was
a machinegun under the NFA, because such an interpretation of the
statute would lead to ``the absurd result of enabling persons to
avoid the NFA simply by using weapons that employ a button or switch
mechanism for firing.'' See also United States v. Camp, 343 F.3d
743, 745 (5th Cir. 2003) (`` `To construe ``trigger'' to mean only a
small lever moved by a finger would be to impute to Congress the
intent to restrict the term to apply only to one kind of trigger,
albeit a very common kind. The language [in 18 U.S.C. 922(o)]
implies no intent to so restrict the meaning[.]' '' (quoting United
States v. Jokel, 969 F.2d 132, 135 (5th Cir. 1992) (emphasis
removed))). Examples of machineguns that operate through a trigger
activated by a push include the Browning design, M2 .50 caliber, the
Vickers, the Maxim, and the M134 hand-fired Minigun.
---------------------------------------------------------------------------
[[Page 66519]]
D. Proposed Definition of ``Automatically''
The Department also proposed to interpret the term
``automatically'' to mean ``as the result of a self-acting or self-
regulating mechanism that allows the firing of multiple rounds through
a single pull of the trigger.'' That interpretation reflects the
ordinary meaning of that term at the time of the NFA's enactment in
1934. The word ``automatically'' is the adverbial form of
``automatic,'' meaning ``[h]aving a self-acting or self-regulating
mechanism that performs a required act at a predetermined point in an
operation[.]'' Webster's New International Dictionary 187 (2d ed.
1934); see also 1 Oxford English Dictionary 574 (1933) (defining
``Automatic'' as ``[s]elf-acting under conditions fixed for it, going
of itself.'').
Relying on these definitions, the United States Court of Appeals
for the Seventh Circuit interpreted the term ``automatically'' as used
in the NFA as ``delineat[ing] how the discharge of multiple rounds from
a weapon occurs: As the result of a self-acting mechanism . . . set in
motion by a single function of the trigger and . . . accomplished
without manual reloading.'' United States v. Olofson, 563 F.3d 652, 658
(7th Cir. 2009). So long as the firearm is capable of producing
multiple rounds with a single pull of the trigger until the trigger
finger is removed, the ammunition supply is exhausted, or the firearm
malfunctions, the firearm shoots ``automatically'' irrespective of why
the firing sequence ultimately ends. Id. (``[T]he reason a weapon
ceased firing is not a matter with which Sec. 5845(b) is
concerned.''). Olofson thus requires only that the weapon shoot
multiple rounds with a single function of the trigger ``as the result
of a self-acting mechanism,'' not that the self-acting mechanism
produces the firing sequence without any additional action by the
shooter. This definition accordingly requires that the self-acting or
self-regulating mechanism allows the firing of multiple rounds through
a single function of the trigger.
E. Proposed Clarification That the Definition of ``Machinegun''
Includes Bump-Stock-Type Devices
The Department also proposed, based on the interpretations
discussed above, to clarify that the term ``machinegun'' includes a
device that allows a semiautomatic firearm to shoot more than one shot
with a single pull of the trigger by harnessing the recoil energy of
the semiautomatic firearm to which it is affixed so that the trigger
resets and continues firing without additional physical manipulation of
the trigger by the shooter. The Department explained that when a
shooter who has affixed a bump-stock-type device to a semiautomatic
firearm pulls the trigger, that movement initiates a firing sequence
that produces more than one shot. And that firing sequence is
``automatic'' because the device harnesses the firearm's recoil energy
in a continuous back-and-forth cycle that allows the shooter to attain
continuous firing after a single pull of the trigger, so long as the
trigger finger remains stationary on the device's ledge (as designed).
Accordingly, these devices are included under the definition of
``machinegun'' and, therefore, come within the purview of the NFA.
F. Amendment of 27 CFR 479.11
The regulatory definition of ``machine gun'' in 27 CFR 479.11
matches the statutory definition of ``machinegun'' in the NFA. The
definition includes the terms ``single function of the trigger'' and
``automatically,'' but those terms are not defined in the statutory
text. The NPRM proposed to define these terms in order to clarify the
meaning of ``machinegun.'' Specifically, the Department proposed to
amend the definition of ``machine gun'' in 27 CFR 479.11 by:
1. Defining the term ``single function of the trigger'' to mean
``single pull of the trigger'';
2. defining the term ``automatically'' to mean ``as the result of a
self-acting or self-regulating mechanism that allows the firing of
multiple rounds through a single pull of the trigger''; and
3. adding a sentence to clarify that a ``machine gun'' includes a
device that allows a semiautomatic firearm to shoot more than one shot
with a single pull of the trigger by harnessing the recoil energy of
the semiautomatic firearm to which it is affixed so that the trigger
resets and continues firing without additional physical manipulation of
the trigger by the shooter (commonly known as a bump-stock-type
device).
G. Amendment of 27 CFR 478.11
The GCA and its implementing regulations in 27 CFR part 478
reference the NFA's definition of machinegun. Accordingly, the NPRM
proposed to make the same amendments in 27 CFR 478.11 that were
proposed for Sec. 479.11.
H. Amendment of 27 CFR 447.11
The Arms Export Control Act (AECA), as amended, does not define the
term ``machinegun'' in its key provision, 22 U.S.C. 2778.\6\ However,
regulations in 27 CFR part 447 that implement the AECA include a
similar definition of ``machinegun,'' and explain that machineguns,
submachineguns, machine pistols, and fully automatic rifles fall within
Category I(b) of the U.S. Munitions Import List when those defense
articles are permanently imported. See 27 CFR 447.11, 447.21.
Currently, the definition of ``machinegun'' in Sec. 447.11 provides
that ``[a] `machinegun', `machine pistol', `submachinegun', or
`automatic rifle' is a firearm originally designed to fire, or capable
of being fired fully automatically by a single pull of the trigger.''
The NPRM proposed to harmonize the AECA's regulatory definition of
machinegun with the definitions in 27 CFR parts 478 and 479, as those
definitions would be amended by the proposed rule.
---------------------------------------------------------------------------
\6\ Under the AECA, the President has the authority to designate
which items are controlled as defense articles for purposes of
importation and exportation. 22 U.S.C. 2778(a)(1). The President
has, in turn, delegated to the Attorney General the authority to
promulgate regulations designating the defense articles controlled
for permanent importation, including machineguns.
---------------------------------------------------------------------------
IV. Analysis of Comments and Department Responses for Proposed Rule
In response to the NPRM, ATF received over 186,000 comments.
Submissions came from individuals, including foreign nationals,
lawyers, and government officials, as well as various interest groups.
Overall, 119,264 comments expressed support for the proposed rule,
66,182 comments expressed opposition, and for 657 comments, the
commenter's position could not be determined. The commenters' grounds
for support and opposition, along with specific concerns and
suggestions, are discussed below.
A. Comments Generally Supporting the Rule
Comments Received
Of the 119,264 comments received in support of the rule, 14,618
used one form letter in support of the proposed rule; 51,454 were
petitions or petition signatures compiled by an organization and
individuals; and 53,192 were unique comments. Many of the 53,192 unique
comments used repetitious declarations of support or a single sentence
or phrase, declaring, in essence, (1) ban bump stocks now or I
[[Page 66520]]
support a ban; (2) common sense gun reform or gun control now; (3) bump
stocks should be outlawed; or (4) I fully support this proposed rule.
Others supporting the rule expressed disbelief as to how such devices
were legal and that it seemed to be a ``no brainer,'' especially after
Las Vegas, to prevent anyone from possessing an item that allows the
shooter to inflict mass carnage. Several commenters stated that they
were present at or knew people who were directly affected by the Las
Vegas shooting and urged finalization of the proposed rule on bump-
stock-type devices. Some commenters identified as active or former
military, while other individuals noted their support for a prohibition
on bump-stock-type devices while identifying as gun owners and gun
enthusiasts, strong supporters of the Second Amendment, or members of a
particular pro-gun interest group. For instance, one commenter wrote,
``As an FFL [Federal firearms license] dealer, gun owner and collector,
I am writing to support the ban on the sale of bump stocks.'' Another
explained that he has been a member of the National Rifle Association
(NRA) for over 30 years and loves hunting and shooting but believes
``there is zero justification for bump stocks,'' because the ``only
thing bump stocks are good for is creating a kill zone.''
Department Response
The Department acknowledges the commenters' support for the
proposed rule. The rule clarifies the regulatory definition of
``machinegun'' to include bump-stock-type devices, and, therefore,
subjects them to the restrictions imposed by the NFA and GCA. As 18
U.S.C. 922(o), with limited exceptions, prohibits the possession of
machineguns that were not lawfully possessed before the effective date
of the statute, current possessors of bump-stock-type devices will be
obligated to cease possessing these devices.
B. Particular Reasons Raised in Support of the Rule
1. Threat to Public Safety
Comments Received
Over 36,000 of the supporting comments expressly cited public
safety, saving lives (or specifically children's lives), reducing gun
deaths and future mass shootings, or protecting law enforcement as the
reason for supporting a rule that would restrict possession of bump-
stock-type devices. A majority of these comments, including submissions
from professional medical associations, declared that allowing persons
to modify semiautomatic rifles with bump-stock-type devices so that
they operate with a similar rate of fire as fully automatic rifles
poses a substantial risk to public safety and that the continued
presence of these devices puts all communities at risk. Some commenters
said that research shows that nations that have reasonable gun
restrictions experience fewer mass shootings. Additionally, many
students and numerous individuals identified as former or current
teachers expressed support for the rule, with some citing fear that
their school could be the next site of a mass shooting or stating that
they do not want to continue seeing their students in constant fear of
the next active shooter.
Several commenters also noted that bump-stock-type devices are a
danger to police forces, with one commenter, a retired law enforcement
officer, declaring that regulating bump-stock-type devices is an issue
of public safety and will save the lives of those who are in law
enforcement. Similarly, other commenters, including a former military
physician, stated that the rapid fire enabled by bump-stock-type
devices significantly increases the casualties in an attack and puts
police officers who respond at greater risk. In light of the Las Vegas
shooting, many commenters argued that, given that bump-stock-type
devices are easily attainable and inexpensive items, prohibiting these
devices is a needed step to reduce gun deaths or prevent future mass
shootings. Many individuals, including several State and local
government officials and gun safety or public health groups, expressed
the urgent need for ATF to finalize the proposed rule in order to
protect the public and children, especially given the frequency of mass
shootings in recent months and the likelihood that a potential
perpetrator will seek out these devices.
Department Response
The Department acknowledges that a bump-stock-type device combined
with a semiautomatic firearm can empower a single individual to take
many lives in a single incident. The reason for the Department's
classification change is that ATF, upon review (discussed in Part III),
believes that bump-stock-type devices must be regulated because they
satisfy the statutory definition of ``machinegun'' in the NFA and GCA.
By making clear that these devices are subject to the restrictions that
the NFA and GCA place on machineguns, this rule reflects the public
safety goals of those statutes. Indeed, the NPRM stated that the Las
Vegas tragedy made ``individuals aware that these devices exist--
potentially including persons with criminal or terrorist intentions--
and made their potential to threaten public safety obvious.'' 83 FR at
13447. For further discussion of benefits, see Part VI.A.
2. Unnecessary for Civilians to Own
Comments Received
Of the total supporting comments, at least 25,135 of the commenters
opined that bump-stock-type devices have no place in civil society and
are unnecessary for ordinary persons to own. One of the primary reasons
thousands expressed support for the regulation was their view that
bump-stock-type devices have no legitimate uses for hunting or sporting
purposes, target shooting, or self-protection. Many of these commenters
emphasized that the devices cause a decrease in shooter accuracy, and
therefore are not useful for hunting and target shooting, and are
inappropriate for use in self or home defense. For example, one
commenter rhetorically stated, ``[W]hat law abiding gun owner who is
responsible for every bullet they shoot would want to reduce their
accuracy?'' Some of these commenters further asserted that because the
devices enable rapid but inaccurate fire, they pose a particular risk
to large-scale public events, such as the Las Vegas concert. Many
commenters, including those identifying as former or active military
members, commented that only the military or law enforcement should
have access to bump-stock-type devices or that there was no need for
civilians to have access to them.
Department Response
The Department acknowledges supporters' comments on limiting the
possession of bump-stock-type devices to military or law enforcement.
Such a limitation is consistent with the Firearms Owners' Protection
Act (FOPA), Public Law 99-308, 100 Stat. 449, which makes it unlawful
for any person to transfer or possess a machinegun that was not
lawfully possessed before the effective date of the statute. FOPA made
an exception for governmental entities, allowing for the ``transfer to
or by, or possession by or under the authority of, the United States or
any department or agency thereof or a State, or a department, agency,
or political subdivision thereof.'' 18 U.S.C. 922(o)(2)(A). Congress
provided this exemption because it recognized the necessity for the
military and law enforcement to continue to use and possess these types
of weapons. This final rule is consistent with
[[Page 66521]]
implementing the requirements of the NFA and GCA provisions that
regulate possession of machineguns.
3. Consistent With the Intent of the National Firearms Act
Comments Received
More than 27,000 of the supporting comments urged issuance of the
final rule because bump-stock-type devices and other similar conversion
devices were meant to circumvent the restrictions of the NFA and GCA,
as bump-stock-type devices enable shooters to transform their guns into
automatic weapons. Some commenters asserted that it is useless to have
a law against automatic weapons yet allow manufacturers to legally
produce and sell an item with the sole purpose of turning a firearm
into an automatic weapon. Many of these commenters also stated that
bump-stock-type devices violate the spirit of the law and that this
loophole should be closed by ATF as quickly as possible. Further, at
least 1,675 of the supporting comments stated that the proposed rule is
consistent with the purposes of the NFA and the intent of Congress.
Specifically, these commenters opined that the regulation ``enforces
machinegun laws that date back many decades'' and that ``it will have
the same dramatic benefit originally intended by those foundational
laws.''
Department Response
The Department acknowledges supporters' comments that bump-stock-
type devices were meant to circumvent the restrictions of the NFA and
GCA. Prior to this rule, ATF issued classification letters that
determined that some bump-stock-type devices were not ``machineguns''
as defined by the NFA. Those decisions, however, did not include
extensive legal analysis, as described in Part III. Upon reexamining
these classifications, this final rule promulgates definitions for the
terms ``single function of the trigger'' and ``automatically'' as those
terms are used in the statutory definition of ``machinegun.'' ATF
believes these definitions represent the best interpretation of the
statute. Therefore, recognizing that a bump-stock-type device used with
a semiautomatic firearm enables a shooter to shoot automatically more
than one shot by a single function of the trigger, the purpose of this
rule is to clarify that such devices are machineguns under the NFA.
4. Constitutional Under the Second Amendment
Comments Received
More than 2,100 commenters in support of the rule argued that a
rule prohibiting possession of bump-stock-type devices does not
conflict with the Second Amendment. Many opined that the Framers of the
Constitution did not intend for these types of devices, which can
inflict mass carnage, to be protected by the Second Amendment.
Commenters expressed the view that because persons living in the 18th
century used muskets capable of firing only one shot before requiring a
long reloading process, our forefathers would not have wanted bump-
stock-type devices to be readily available. Other commenters, including
those who declared themselves to be strong supporters of the Second
Amendment, stated that prohibiting bump-stock-type devices was
consistent with the Second Amendment.
Several commenters noted language from the majority opinion in
District of Columbia v. Heller, 554 U.S. 570 (2008). There, the Supreme
Court declared that the Second Amendment protects an individual right
to bear arms for traditional lawful purposes such as self-defense and
hunting. However, the Court also stated, ``Like most rights, the right
secured by the Second Amendment is not unlimited. From Blackstone
through the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.'' Id. at
626. Commenters further summarized the Court's conclusions that
limitations on the right to keep and carry arms are supported by the
historical tradition of prohibiting the carrying of ``dangerous and
unusual weapons.'' Id. at 627. Commenters argued that the Supreme
Court's Second Amendment decisions support the proposed rule.
Department Response
The Department acknowledges supporters' concerns and agrees that
regulation of bump-stock-type devices is permissible under the Second
Amendment. For discussion of the Department's position on the
constitutionality of this final rule under the Second Amendment, see
Part IV.D.1.a.
5. Absence of Congressional Action
Comments Received
Over 1,500 comments in support urged action on this final rule by
invoking popular support for responsible gun limitations. Many of these
commenters stated this measure would be a sensible first step for gun
safety and that ATF should act where Congress has not acted. One gun
safety organization noted that while congressional measures have
stalled, ATF is doing what it can to refine rules. At least 1,300
commenters indicated that ATF should choose saving children and the
public welfare over the interests of the gun industry and pro-gun
organizations, naming in particular the NRA. One commenter wrote,
``It's time we quit cow-towing [sic] to the NRA and considered all the
rest of us and our children especially. Being afraid to go to school is
unAmerican which is what the insistence by the NRA on no gun control
is--unAmerican.'' Many supporting commenters echoed these sentiments.
Department Response
In light of the legal analysis of the term ``machinegun'' set forth
above, the Department agrees with commenters that it is necessary to
clarify that the term ``machinegun'' includes bump-stock-type devices.
Congress granted the Attorney General authority to issue rules to
administer the NFA and GCA, and the Attorney General has delegated to
ATF the authority to administer and enforce these statutes and to
implement the related regulations accordingly. The Department and ATF
have initiated this rulemaking to clarify the regulatory interpretation
of the NFA and GCA.
C. Comments Generally Opposing the Rule
Comments Received
A total of 66,182 comments were received that opposed the rule.
Approximately 40,806 of those comments were form submissions by the
National Association for Gun Rights (NAGR) on behalf of its members,
with 25,874 submitted on paper petitions and 14,932 submitted by
facsimile. The remaining 25,376 opposing comments were individually
submitted. Many of the commenters identified as lawyers, judges,
industry groups, or members of law enforcement or the military. There
were several commenters who stated they did not own or had no interest
in owning a bump-stock-type device but still objected to the rule on
various grounds, including that it is unconstitutional and only
punishes law-abiding owners of bump-stock-type devices. Of the 25,376
comments individually submitted, 12,636 used one of three form letters;
the remaining 12,740 were unique comments. A majority of these
commenters raised
[[Page 66522]]
specific, detailed objections to the agency's proposal and the premise
upon which the regulation is based, whereas several hundred of the
unique comments were limited to a few sentences opposing the regulation
without further detail. For example, these types of comments simply
declared, in essence, (1) no ban, or a ban is unnecessary; (2)
individuals' Second Amendment rights should not be infringed; or (3) I
oppose any additional gun regulations.
Department Response
The Department acknowledges the commenters' objections to the
proposed rule but disagrees with assertions that the rule infringes on
the constitutional right to keep and bear arms and punishes law-abiding
gun owners. The Department believes that bump-stock-type devices
satisfy the definition of ``machinegun'' under the NFA and GCA and that
this final rule reflects the public safety goals of the NFA and GCA.
The Department thoroughly considered the various issues raised in
opposition to the rule, which are discussed below.
D. Specific Issues Raised in Opposition to the Rule
1. Constitutional and Statutory Arguments
a. Violates the Second Amendment
Comments Received
A total of 16,051 of the commenters opposed the rule on the ground
that it violates the Second Amendment. Of these, 11,753 used a form
letter stating that the ``regulations dismiss Second Amendment
protections, by appealing to the Heller court decision. But the
Constitution trumps the Supreme Court--so when the Second Amendment
says the right to keep and bear arms shall not be infringed, any
limitation of the right for law-abiding citizens should be treated as
unconstitutional[.]'' Many commenters, including those identifying as
former or active law enforcement or military members, echoed these
sentiments by declaring that the proposed rule infringes on the rights
of law-abiding gun owners, and that the phrasing of the Second
Amendment--``shall not be infringed''--strictly limits or negates the
ability of Government to impose any regulations on firearms. One
commenter, for instance, argued that the Second Amendment's reference
to a ``well-regulated Militia'' includes unorganized militia, which the
commenter interpreted to mean any person who owns a gun. Because the
military has automatic weapons, the commenter reasoned that the
people--as the unorganized militia--are likewise constitutionally
entitled to access such weapons.
Numerous commenters cited the Supreme Court's decision in Heller,
554 U.S. 570, which declared that the Second Amendment protects an
individual right to bear arms. Commenters also referred to the Supreme
Court's decision in Caetano v. Massachusetts, 136 S. Ct. 1027 (2016)
(per curiam), stating that this decision makes clear that weapons in
``common use'' cannot be banned. One commenter pointed out that if
bump-stock-type devices are now machineguns, then there are an
additional 519,927 machineguns that are currently owned typically by
law-abiding citizens for lawful purposes. This amount, the commenter
argued, surpasses the 200,000 stun guns found to trigger a ``common
use'' analysis in Caetano, meaning that such items cannot be banned
unless they are both dangerous and unusual. Further, commenters said
that Caetano stands for the proposition that any advancement in
weaponry is still protected under the Second Amendment. They argued
that the Court declared ``the Second Amendment extends, prima facie, to
all instruments that constitute bearable arms, even those that were not
in existence at the time of the founding'' and that its protection is
not limited to only those weapons useful in warfare. Id. at 1027
(internal quotation marks omitted).
Department Response
The Department does not believe that the proposed regulation
violates the Second Amendment. The Supreme Court has indicated, and
several lower courts have squarely held, that the Second Amendment does
not protect a right to possess a machinegun. Because bump-stock-type
devices are machinegun conversion devices that qualify as
``machineguns'' under Federal law, see supra Part III.E., prohibiting
them does not violate the Second Amendment.
``Like most rights, the right secured by the Second Amendment is
not unlimited.'' Heller, 554 U.S. at 626; accord McDonald v. City of
Chi., 561 U.S. 742, 786 (2010). In Heller, for example, the Supreme
Court recognized an ``important limitation on the right to keep and
carry arms'': ``the historical tradition of prohibiting the carrying of
`dangerous and unusual weapons.' '' 554 U.S. at 627. More specifically,
and importantly for purposes of this rulemaking, the Court explicitly
described machineguns as the kind of dangerous and unusual weapons not
protected by the Second Amendment. In the course of explaining the
Court's holding in United States v. Miller, 307 U.S. 174 (1939)
(upholding Federal prohibition of short-barreled shotguns), the Court
noted that a portion of Miller could be ``[r]ead in isolation'' to
``mean that only those weapons useful in warfare are protected'' by the
Second Amendment. Heller, 554 U.S. at 624. But ``[t]hat would be a
startling reading of the opinion,'' the Court continued, ``since it
would mean that the National Firearms Act's restrictions on machineguns
. . . might be unconstitutional, machineguns being useful in warfare in
1939.'' Id. Heller thus made clear that machineguns, like short-
barreled shotguns, are ``weapons not typically possessed by law-abiding
citizens for lawful purposes,'' and thus fall outside the scope of the
Second Amendment as historically understood. Id. at 625; see also id.
at 627 (accepting that M-16 rifles are dangerous and unusual weapons
that may be banned).
In the decade since Heller was decided, lower courts have
consistently upheld prohibitions of machineguns. Hollis v. Lynch, 827
F.3d 436, 451 (5th Cir. 2016) (upholding Federal statute banning
possession of machineguns because they are ``dangerous and unusual and
therefore not in common use''); United States v. Henry, 688 F.3d 637,
640 (9th Cir. 2012); Hamblen v. United States, 591 F.3d 471, 472, 474
(6th Cir. 2009); United States v. Fincher, 538 F.3d 868, 874 (8th Cir.
2008); see also Heller v. Dist. of Columbia (Heller II), 670 F.3d 1244,
1270 (D.C. Cir. 2011) (Kavanaugh, J., dissenting) (``fully automatic
weapons, also known as machine guns, have traditionally been banned and
may continue to be banned after Heller''); United States v.
Marzzarella, 614 F.3d 85, 94-95 (3d Cir. 2010) (``the Supreme Court has
made clear the Second Amendment does not protect'' machineguns and
short-barreled shotguns).
This body of precedent, in addition to Heller, strongly supports
the Department's view that a bump-stock-type device, as a machinegun
conversion device qualifying as a ``machinegun'' under Federal law, is
not protected by the Second Amendment. What makes a machinegun a
``dangerous and unusual weapon'' unprotected by the Second Amendment is
its capacity to fire automatically, see, e.g., Henry, 688 F.3d at 640,
which ``puts the machine gun on a different plane'' than other
firearms, United States v. Kirk, 105 F.3d 997, 1002 (5th Cir. 1997) (en
banc) (opinion of Higginbotham, J.). Bump-stock-type devices qualify as
machineguns, as discussed above,
[[Page 66523]]
because they enable an otherwise semiautomatic firearm to fire
automatically. Since they bear the same key characteristic that makes
traditional machineguns ``dangerous and unusual,'' bump-stock-type
devices are unprotected by the Second Amendment for the same reason.
This conclusion is fully consistent with Caetano v. Massachusetts,
136 S. Ct. 1027. In Caetano, the Supreme Judicial Court of
Massachusetts had upheld a State prohibition of stun guns on the
grounds that stun guns were not in common use when the Second Amendment
was ratified and are not useful in military operations. See id. at
1027-28. The Supreme Court summarily vacated this ruling because
neither of the State court's premises was valid: Heller made a ``clear
statement that the Second Amendment `extends . . . to . . . arms . . .
that were not in existence at the time of the founding,' '' and
``rejected the proposition `that only those weapons useful in warfare
are protected.' '' Id. at 1028 (quoting Heller, 554 U.S. at 582, 624-
25). The Department's conclusion in this rulemaking that the Second
Amendment does not protect bump-stock-type devices rests on neither of
the propositions rejected by Caetano. As discussed above, the
Department believes that this rule comports with the Second Amendment
because bump-stock-type devices qualify as machineguns, which are not
constitutionally protected--not because bump-stock-type devices did not
exist in 1791 or are not useful in warfare. Moreover, although the
Supreme Judicial Court of Massachusetts ultimately held that stun guns
are protected under the Second Amendment in Ramirez v. Commonwealth, 94
NE3d 809 (2018), the court did not suggest that more dangerous weapons,
like machineguns and machinegun conversion devices, are also protected.
The court acknowledged that a stun gun is even ``less lethal than a
handgun,'' id. at 817, the weapon that the Supreme Court expressly held
to be protected in Heller, 554 U.S. at 635.
b. Violates the Fifth Amendment
i. Violates Due Process Clause--Entrapment
Comments Received
At least one commenter, a gun-rights nonprofit organization, argued
that ATF's change of position constitutes unconstitutional entrapment.
It maintained that ATF's past classification letters, which informed
the public that certain bump-stock-type devices were not subject to the
NFA or GCA, invited the public to rely on its consistent decisions and
acquire such items. With the sudden change of position, the
organization asserted, ATF seeks to entrap citizens who have simply
purchased a federally approved firearm accessory. Citing Sherman v.
United States, 356 U.S. 367, 376 (1958), the organization argued that
it is ``unconstitutional for the Government to beguile an individual
`into committing crimes which he otherwise would not have attempted.'
'' Further, it argued that at least some 520,000 law-abiding citizens
could be criminals who could face up to ten years' imprisonment
``without even receiving individual notice of ATF's reversal of
position.''
Department Response
The Department disagrees that the final rule amounts to entrapment.
Entrapment is a complete defense to a criminal charge on the theory
that ``Government agents may not originate a criminal design, implant
in an innocent person's mind the disposition to commit a criminal act,
and then induce commission of the crime so that the Government may
prosecute.'' Jacobson v. United States, 503 U.S. 540, 548 (1992). A
valid entrapment defense has two related elements: (1) Government
inducement of the crime, and (2) the defendant's lack of predisposition
to engage in the criminal conduct. Mathews v. United States, 485 U.S.
58, 63 (1988).
As described above, ATF has now concluded that it misclassified
some bump-stock-type devices and therefore initiated this rulemaking
pursuant to the requirements of the APA. An agency is entitled to
correct its mistakes. See Williams Gas Processing-Gulf Coast Co. v.
FERC, 475 F.3d 319, 326 (D.C. Cir. 2006) (``[I]t is well understood
that [a]n agency is free to discard precedents or practices it no
longer believes correct. Indeed we expect that an [ ] agency may well
change its past practices with advances in knowledge in its given field
or as its relevant experience and expertise expands. If an agency
decides to change course, however, we require it to supply a reasoned
analysis indicating that prior policies and standards are being
deliberately changed, not casually ignored.''). This rulemaking
procedure is specifically designed to notify the public about changes
in ATF's interpretation of the NFA and GCA and to help the public avoid
the unlawful possession of a machinegun. It is important to note that
at no time did ATF induce any member of the public to commit a crime.
The ANPRM, NPRM, and this final rule have followed the statutory
process for ensuring that the public is aware of the correct
classification of bump-stock-type devices under the law, and that
continued possession of such devices is prohibited. Anyone currently in
possession of a bump-stock-type device is not acting unlawfully unless
they fail to relinquish or destroy their device after the effective
date of this regulation.
ii. Violates Takings Clause and Due Process Clause
Comments Received
Over 1,200 commenters objected that the rule will violate the
Takings Clause of the Fifth Amendment, which provides ``private
property [shall not] be taken for public use, without just
compensation.'' Some commenters said that the Takings Clause requires
the Government to compensate manufacturers for their present and future
loss of revenues. Many other commenters further indicated that the
Government would owe compensation to owners of bump-stock-type devices
because the Government would effectively be taking personal property
for public safety, which is a form of public use. They cited Horne v.
Department of Agriculture, 135 S. Ct. 2419, 2428 (2015), for the
proposition that mandating relinquishment of property constitutes a
physical taking and requires compensation. One commenter contrasted
this rule with the regulation at issue in Andrus v. Allard, 444 U.S. 51
(1979), which prohibited the commercial sale of eagle body parts
gathered before 1940. The commenter observed that the Supreme Court
held the eagle-part regulation was not a regulatory taking because it
did not compel the surrender of the body parts and imposed no physical
invasion or restraint upon them. Id. at 65-66. By contrast, the
commenter noted, owners of bump-stock-type devices under the regulation
would be compelled to surrender their devices or face criminal
penalties.
Several commenters also stated that ``for this regulation to be
Constitutional each and every owner of a bump stock, or other devices
captured in this regulation not yet named, must be given their day in
court to present evidence and an argument as to why their property
shouldn't be taken without compensation at a minimum.''
Many commenters separately opined that the Department did not
include the cost of compensation in its cost-benefit analysis and
several proposed estimated costs of such compensation. Those comments
are addressed in Part IV.I.1.
[[Page 66524]]
Department Response
The Department does not agree that classifying bump-stock-type
devices as machineguns results in the unlawful taking of property ``for
public use, without just compensation.'' U.S. Const. amend. V. It is
well established that ``the nature of the [government's] action is
critical in takings analysis.'' Keystone Bituminous Coal Ass'n v.
DeBenedictis, 480 U.S. 470, 488 (1987); accord Penn Cent. Transp. Co.
v. City of New York, 438 U.S. 104, 124 (1978) (``character of the
government action'' has ``particular significance''). The Department's
action here, classifying bump-stock-type devices as machineguns subject
to the NFA and GCA, does not have the nature of a taking.
A restriction on ``contraband or noxious goods'' and dangerous
articles by the government to protect public safety and welfare ``has
not been regarded as a taking for public use for which compensation
must be paid.'' Acadia Tech., Inc. v. United States, 458 F.3d 1327,
1332 (Fed. Cir. 2006); see also United States v. $7,990.00 in U.S.
Currency, 170 F.3d 843, 845 (8th Cir. 1999) (``forfeiture of contraband
is an exercise of the government's police power'' and does not qualify
as a taking).\7\ The Takings Clause was ``not intended as a limitation
of the exercise of those police powers which are necessary to the
tranquility of every well-ordered community, nor of that general power
over private property which is necessary for the orderly existence of
all governments. It has always been held that the legislature may make
police regulations, although they may interfere with the full enjoyment
of private property, and though no compensation is given.'' Chi.,
Burlington & Quincy Ry. Co. v. Illinois, 200 U.S. 561, 594 (1906)
(internal quotation marks omitted); see, e.g., Holliday Amusement Co.
of Charleston v. South Carolina, 493 F.3d 404, 409-11 (4th Cir. 2007)
(upholding State prohibition of video gaming machines without
compensation).
---------------------------------------------------------------------------
\7\ In the takings context, the use of the term ``police power''
in connection with Federal regulation does not posit the existence
of a ``plenary police power'' at the Federal level. Cf. United
States v. Lopez, 514 U.S. 549, 566 (1995). Rather, it refers to
``the power of the federal government to engage,'' pursuant to one
or more of its enumerated powers, ``in activities not unlike those
engaged in by the states under their inherent sovereign powers'' to
protect the public welfare. Fla. Rock Indus., Inc. v. United States,
18 F.3d 1560, 1568 n.17 (Fed. Cir. 1994).
---------------------------------------------------------------------------
In Mugler v. Kansas, 123 U.S. 623, 668-69 (1887), for example, the
Supreme Court rejected a distiller's argument that a State
constitutional amendment prohibiting the manufacture and sale of
intoxicating liquors was an unconstitutional taking. The Court
explained that the government's power to prohibit the ``use by
individuals of their property, as will be prejudicial to the health,
the morals, or the safety of the public, is not, and, consistently with
the existence and safety of organized society, cannot be, burdened with
the condition that the state must compensate such individual owners for
pecuniary losses they may sustain, by reason of their not being
permitted, by a noxious use of their property, to inflict injury upon
the community.'' Id. at 669. Similarly, the Supreme Court held in
Miller v. Schoene, 276 U.S. 272, 280 (1928), that Virginia was not
required to compensate owners of red cedar trees for the value of trees
that the State had ordered destroyed to prevent the spread of a disease
that threatened local apple orchards. ``[W]here the public interest is
involved,'' the Court observed, ``preferment of that interest over the
property interest of the individual, to the extent even of its
destruction, is one of the distinguishing characteristics of every
exercise of the police power which affects property.'' Id. at 279-80.
Lower courts have likewise deemed the Takings Clause inapplicable to
governmental regulation of dangerous personal property for public-
safety reasons. See, e.g., Garcia v. Vill. of Tijeras, 767 P.2d 355
(N.M. Ct. App. 1988) (village ordinance banning possession of pit bulls
was ``a proper exercise of the Village's police power'' and not a
taking).
Consistent with these cases, courts have rejected arguments that
restrictions on the possession of dangerous firearms, like machineguns,
are takings requiring just compensation. In Akins v. United States, 82
Fed. Cl. 619 (2008), for example, the Court of Federal Claims held that
ATF's ultimate classification of the Akins Accelerator as a machinegun,
see supra Part III, was not a taking. The court reasoned that ATF had
acted ``pursuant to the police power conferred on it by Congress''
rather than by exercising eminent domain, and that the plaintiff lacked
a sufficient property interest because he had ``voluntarily entered an
area subject to pervasive federal regulation--the manufacture and sale
of firearms.'' Id. at 623-24; see also Bennis v. Michigan, 516 U.S.
442, 452 (1996) (``The government may not be required to compensate an
owner for property which it has already lawfully acquired under the
exercise of governmental authority other than the power of eminent
domain.''). Similar reasoning led the District of Columbia Court of
Appeals to hold that a DC law prohibiting machineguns and requiring
their disposal or removal was not a taking. Fesjian v. Jefferson, 399
A.2d 861, 865-66 (1979). These precedents support the Department's
conclusion that the prohibition of bump-stock-type devices as
machineguns does not have the character of a compensable taking within
the meaning of the Fifth Amendment.
The Department acknowledges that a panel of the U.S. Court of
Appeals for the Ninth Circuit recently upheld a preliminary injunction
against the Attorney General of California that relied in part on the
Takings Clause in prohibiting the State from implementing restrictions
on firearm magazines that hold more than 10 rounds. Duncan v. Becerra,
No. 17-56081, 2018 WL 3433828 (9th Cir. July 17, 2018). The Ninth
Circuit's order essentially adopted the district court's analysis of
the Takings Clause question. See id. at *3. The district court's
reasoning on the takings question was closely intertwined with the
Second Amendment inquiry, and rested on the conclusion that it was
``dubious'' for California to deem large-capacity magazines a public
nuisance given the Supreme Court's observation that ``[g]uns in general
are not deleterious devices or products or obnoxious waste materials.''
Duncan v. Becerra, 265 F. Supp. 3d 1106, 1137 (S.D. Cal. 2017)
(internal quotation marks omitted) (quoting Staples v. United States,
511 U.S. 600, 610 (1994)). But regulation of bump-stock-type devices is
fundamentally distinguishable from California's prohibition on
possessing such magazines. As discussed, and as Heller indicates,
dangerous and unusual weapons are not entitled to Second Amendment
protection, and may indeed qualify as deleterious devices or
contraband. Other district courts have followed the reasoning of cases
like Akins and Fesjian and rejected takings challenges to California
firearm restrictions. See Rupp v. Becerra, 2018 WL 2138452, at *8-9
(C.D. Cal. May 9, 2018) (restrictions on ``assault weapons''); Wiese v.
Becerra, 263 F. Supp. 3d 986, 995 (E.D. Cal. 2017) (prohibition of
large-capacity gun magazines).
Finally, the Department does not agree that each owner of a bump-
stock-type device has a due-process right to a hearing in connection
with the promulgation of this rule. The rule clarifies the scope of the
NFA and GCA, general legislative enactments, with respect to bump-
stock-type devices. ``Official action that is legislative in nature is
not subject to the notice and hearing requirements of the due process
[[Page 66525]]
clause.'' Interport Pilots Agency, Inc. v. Sammis, 14 F.3d 133, 142 (2d
Cir. 1994); see also, e.g., Bi-Metallic Inv. Co. v. State Bd. of
Equalization, 239 U.S. 441, 445 (1915) (``General statutes within the
state power are passed that affect the person or property of
individuals, sometimes to the point of ruin, without giving them a
chance to be heard.''). Furthermore, the Department's conclusion that
bump-stock-type devices are machineguns under the NFA and GCA means
that owners lack a cognizable property interest in these devices for
due-process purposes. As the Fifth Circuit held in Cooper v. City of
Greenwood, firearms covered by the NFA are ``contraband per se,'' and
``[c]ourts will not entertain a claim contesting the confiscation of
contraband per se because one cannot have a property right in that
which is not subject to legal possession.'' 904 F.2d 302, 305 (1990).
c. Violates Ex Post Facto Clause and Bill of Attainder Clause
Comments Received
Numerous commenters asserted that the proposed rule would violate
article I, section 9, clause 3 of the Constitution, which states, ``No
Bill of Attainder or ex post facto Law shall be passed.'' One gun-
rights nonprofit organization, quoting United States v. O'Neal, 180
F.3d 115, 122 (4th Cir. 1999), stated that even though this is a
regulatory action, the ``sanction or disability it imposes is `so
punitive in fact' that the law `may not legitimately be viewed as civil
in nature.' ''
Another commenter, the Maryland Shall Issue organization, argued
that ATF's reliance on 18 U.S.C. 922(o) creates an impermissible ex
post facto law because current owners and manufacturers of bump-stock-
type devices ``became felons as of the date and time they took
possession of a bump stock, even though such possession and manufacture
was then expressly permitted by prior ATF interpretations.'' The
commenter cited Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798), and
Peugh v. United States, 569 U.S. 530 (2013), to support its arguments.
It argued that the ex post facto issue can be avoided by holding that
the exemption in 18 U.S.C. 922(o)(2)(A) applies where bump-stock-type
devices are possessed under ``the authority'' of prior ATF rulings.
Furthermore, the commenter, citing Bowen v. Georgetown University
Hospital, 488 U.S. 204, 208 (1988), stated that the Supreme Court has
held that an agency cannot engage in retroactive rulemaking without
specific congressional authorization. Relying on Fernandez-Vargas v.
Gonzales, 548 U.S. 30, 36 (2006), the commenter stated there is no
question that the proposed rule has a retroactive effect because the
rule would ``affect'' existing rights and impose new liabilities on the
past and continued possession of bump-stock-type devices.
At least one commenter argued the rule is an unconstitutional bill
of attainder because the rule restricts particular brands of stocks,
per the Department's definition, while not at the same time restricting
all brands of stocks. Similarly, another commenter stated the
regulation appears punitive in nature, and abusively narrow in
targeting Slide Fire, a seller of bump-stock-type devices that has
already announced the close of its business.
Department Response
The Department disagrees that the proposed rule violates the Ex
Post Facto or Bill of Attainder Clauses. The rule would criminalize
only future conduct, not past possession of bump-stock-type devices
that ceases by the effective date of this rule. In Calder v. Bull, 3
U.S. (3 Dall.) 386 (1798), the Supreme Court set out four types of laws
that violate the Ex Post Facto Clause:
1st. Every law that makes an action, done before the passing of
the law, and which was innocent when done, criminal; and punishes
such action. 2nd. Every law that aggravates a crime, or makes it
greater than it was, when committed. 3rd. Every law that changes the
punishment, and inflicts a greater punishment, than the law annexed
to the crime, when committed. 4th. Every law that alters the legal
rules of evidence, and receives less, or different, testimony, than
the law required at the time of the commission of the offence, in
order to convict the offender.
Id. at 390. Citing Calder, the Supreme Court has explained that ``[t]o
fall within the ex post facto prohibition, a law must be
retrospective--that is, it must apply to events occurring before its
enactment--and it must disadvantage the offender affected by it by
altering the definition of criminal conduct or increasing the
punishment for the crime.'' Lynce v. Mathis, 519 U.S. 433, 441 (1997)
(emphasis added; citations and internal quotation marks omitted). The
Federal courts have thus been careful to distinguish statutes and
regulations that violate the Ex Post Facto Clause from those that
criminalize only future conduct and are therefore not
``retrospective,'' including in the firearms possession context. For
example, following passage of the Lautenberg Amendment (18 U.S.C.
922(g)(9)), which made it unlawful for persons convicted of a
misdemeanor crime of domestic violence to possess a firearm, several
defendants argued that the law violated the Ex Post Facto Clause. One
defendant argued that he had a prior conviction for a misdemeanor crime
of domestic violence, but lawfully possessed a firearm before 18 U.S.C.
922(g)(9) became law. United States v. Mitchell, 209 F.3d 319 (4th Cir.
2000). The defendant argued that, as applied to him, the statute
violated the Ex Post Facto Clause because the new law penalized him for
his previous domestic violence conviction. However, the Fourth Circuit
disagreed, noting that ``[i]t is immaterial that Mitchell's firearm
purchase and domestic violence conviction occurred prior to Sec.
922(g)(9)'s enactment because the conduct prohibited by Sec. 922(g)(9)
is the possession of a firearm.'' Id. at 322; see also United States v.
Pfeifer, 371 F.3d 430, 436-37 (8th Cir. 2004); United States v. Meade,
986 F. Supp. 66, 69 (D. Mass. 1997), aff'd, 175 F.2d 215 (1st Cir.
1999); United States v. Brady, 26 F.3d 282, 290-91 (2d Cir. 1994);
United States v. Gillies, 851 F.2d 492, 495-96 (1st Cir. 1988) (Breyer,
J.); United States v. D'Angelo, 819 F.2d 1062, 1065-66 (11th Cir.
1987).
This rule brings clarity to the meaning of ``machinegun,'' and
makes clear that individuals are subject to criminal liability only for
possessing bump-stock-type devices after the effective date of
regulation, not for possession before that date. No action taken before
the effective date of the regulation is affected under the rule.
Although regulating past possession of a firearm may implicate the Ex
Post Facto Clause, regulating the continued or future possession of a
firearm that is already possessed does not. See Benedetto v. Sessions,
No. CCB-17-0058; 2017 WL 4310089, at *5 (D. Md. Sept. 27, 2017)
(``Whether a gun was purchased before the challenged law was enacted .
. . is immaterial to whether the challenged law regulates conduct that
occurred before or after its enactment.''); see also Samuels v.
McCurdy, 267 U.S. 188, 193 (1925) (rejecting Ex Post Facto Clause
challenge to statute that prohibited the post-enactment possession of
intoxicating liquor, even when the liquor was lawfully acquired before
the statute's enactment). For this reason, the Department disagrees
with commenters' assertions that the rule violates the Ex Post Facto
Clause.
Relatedly, the Department also disagrees with the view that 18
U.S.C. 922(o)(2)(A) provides the authority to permit continued
possession of bump-stock-type devices ``under the
[[Page 66526]]
authority'' of prior ATF rulings. Section 922(o)(2)(A) is inapplicable
because, among other reasons, ATF's letter rulings regarding bump-
stock-type devices did not purport to authorize the possession of
devices qualifying as machineguns under section 922(o)(1); instead, ATF
advised individuals that certain devices did not qualify as machineguns
in the first place, a position that ATF has now reconsidered.
Furthermore, section 922(o)(2)(A) does not empower ATF to freely grant
exemptions from section 922's general prohibition of machineguns.
The Department also disagrees that the proposed rule constitutes a
bill of attainder. The Supreme Court has highlighted the fact that the
Bill of Attainder Clause applies only to Congress, noting that ``[t]he
distinguishing feature of a bill of attainder is the substitution of a
legislative for a judicial determination of guilt.'' De Veau v.
Braisted, 363 U.S. 144, 160 (1960) (emphasis added). The Court has also
described a bill of attainder as ``a law that legislatively determines
guilt and inflicts punishment upon an identifiable individual without
provision of the protections of a judicial trial.'' Nixon v. Adm'r of
Gen. Servs., 433 U.S. 425, 468 (1977) (emphasis added). Accordingly,
the Bill of Attainder Clause does not apply ``to regulations
promulgated by an executive agency.'' Paradissiotis v. Rubin, 171 F.3d
983, 988-89 (5th Cir. 1999) (citing Walmer v. U.S. Dep't of Defense, 52
F.3d 851, 855 (10th Cir. 1995) (``The bulk of authority suggests that
the constitutional prohibition against bills of attainder applies to
legislative acts, not to regulatory actions of administrative
agencies.'')); see also Korte v. Office of Personnel Mgmt., 797 F.2d
967, 972 (Fed. Cir. 1986); Marshall v. Sawyer, 365 F.2d 105, 111 (9th
Cir. 1966). Even if the proposed rule were subject to the Bill of
Attainder Clause, it would pass constitutional muster. The fact that
Slide Fire announced the close of its business does not make this rule
a bill of attainder; that company is not being singled out, as the
proposed rule applies to all similar devices. Further, the regulation
of all machineguns of this type is not a ``punishment'' as is required
for an enactment to be unlawful bill of attainder. See Nixon, 433 U.S.
at 473.
d. Violates Fourth Amendment
Comments Received
Many commenters also raised objections on grounds that the proposed
rule violates the Fourth Amendment's guarantee against unreasonable
searches and seizures. Commenters believed that because bump-stock-type
devices essentially would become contraband under the rule, ``mandating
[their] surrender to authorities would violate the 4th Amendment
protection from seizure without due process.''
Department Response
Although commenters cite the Fourth Amendment, it is unclear how a
``search'' or ``seizure'' would result from this rule. The Department
is unaware of any precedent supporting the view that a general
regulatory prohibition of possession of certain contraband can violate
the Fourth Amendment. A seizure in ``[v]iolation of the Fourth
Amendment requires an intentional acquisition of physical control,''
Brower v. Cty. of Inyo, 489 U.S. 593, 596 (1989), and the final rule
makes clear that current possessors of bump-stock-type devices are not
required to surrender the devices to the authorities. Instead, current
possessors may lawfully dispose of their devices in other ways, as
discussed below in Part IV.D.7.
e. Violates Ninth and Tenth Amendments
Comments Received
Various commenters opposed to the rule stated that it would violate
the Ninth and Tenth Amendments of the Constitution. The Ninth Amendment
provides: ``The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the
people.'' The Tenth Amendment provides: ``The powers not delegated to
the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.''
One commenter said, ``The BATF is another agency whose existence
violates the 10th Amendment.'' Another commenter argued, ``as an
accessory, the federal government cannot ban [bump-stock-type devices],
because only the states can ban them.'' A handful of other commenters
stated that the rule violates States' rights under the Tenth Amendment
because it violates the ``right to keep and bear arms'' provisions of
44 State constitutions.
Department Response
The Department disagrees that the proposed rule violates the
commenters' rights under the Ninth Amendment. The Ninth Amendment
``does not confer substantive rights in addition to those conferred by
other portions of our governing law. The Ninth Amendment `was added to
the Bill of Rights to ensure that the maxim expressio unius est
exclusio alterius would not be used at a later time to deny fundamental
rights merely because they were not specifically enumerated in the
Constitution.' '' Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991)
(citing Charles v. Brown, 495 F. Supp. 862, 863-64 (N.D. Ala. 1980)).
Federal ``circuit courts across the country have consistently held that
the Ninth Amendment does not impinge upon Congress's authority to
restrict firearm ownership.'' United States v. Finnell, 256 F. Supp. 2d
493, 498 (E.D. Va. 2003).
The Department also disagrees that the rule violates the Tenth
Amendment. Commenters seemingly argued that the powers exercised by the
Department in issuing the rule were ``powers not delegated to the
United States by the Constitution, nor prohibited by it to the
States.'' However, Federal courts have long held that the NFA, GCA, and
implementing regulations do not violate the Tenth Amendment. The NFA
does not ``usurp[ ] police power reserved to the States.'' United
States v. Miller, 307 U.S. 174, 176 (1939). Further, ``[b]ecause Sec.
922(o) was a proper exercise of Congress's enumerated authority under
the Commerce Clause, and because it does not compel, let alone
commandeer, the states to do anything, the statute does not violate the
Tenth Amendment.'' United States v. Kenney, 91 F.3d 884, 891 (7th Cir.
1996).
f. Lack of Statutory Authority
Comments Received
A total of 47,863 commenters, most of whom sent form submissions
opposed to the proposed rule, argued that ATF lacks statutory authority
to regulate bump-stock-type devices. Many commenters said that ATF, by
its own admission, repeatedly stated it could not regulate such
devices. Commenters generally expressed the view that because bump-
stock-type devices are not firearms, ATF has no authority under the NFA
or GCA to regulate them. Some commenters contended that 6 U.S.C. 531
gives ATF only narrow statutory authority and does not provide ATF
general authority to regulate the safety of firearms, accessories, or
parts.
In addition, numerous commenters argued that, as the term
``machinegun'' is already clearly defined in the NFA, only Congress can
make changes to the definition and regulate bump-stock-type devices.
Furthermore, commenters stated that the agency's interpretation of the
term ``machinegun'' would not be entitled to deference under Chevron
U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984).
[[Page 66527]]
Department Response
The Attorney General is responsible for enforcing the NFA, as
amended, and the GCA, as amended. This includes the authority to
promulgate regulations necessary to enforce the provisions of these
statutes. See 18 U.S.C. 926(a); 26 U.S.C. 7801(a)(2)(A), 7805(a). The
statutory provision cited by some commenters, 6 U.S.C. 531, is the
provision of the Homeland Security Act of 2002, Public Law 107-296, 116
Stat. 2135, that transferred the powers the Secretary of the Treasury
had with respect to ATF to the Attorney General when ATF was
transferred to the Department of Justice. Accordingly, the Attorney
General is now responsible for enforcing the NFA and GCA, and he has
delegated the responsibility for administering and enforcing the NFA
and GCA to the Director of ATF, subject to the direction of the
Attorney General and the Deputy Attorney General. See 28 CFR
0.130(a)(1)-(2).
``Because Sec. 926 authorizes the [Attorney General] to promulgate
those regulations which are `necessary,' it almost inevitably confers
some measure of discretion to determine what regulations are in fact
`necessary.''' Nat'l Rifle Ass'n v. Brady, 914 F.2d 475, 479 (4th Cir.
1990). In the original GCA implementing regulations, ATF provided
regulatory definitions of the terms that Congress did not define in the
statute. 33 FR 18555 (Dec. 14, 1968). Since 1968, ATF has occasionally
added definitions to the implementing regulations. See, e.g., 63 FR
35520 (June 30, 1998). Similarly, 26 U.S.C. 7805(a) states that ``the
[Attorney General] shall prescribe all needful rules and regulations
for the enforcement of this title.'' As is the case with the GCA, ATF
has provided regulatory definitions for terms in the NFA that Congress
did not define, such as ``frame or receiver'' and ``manual reloading.''
See, e.g., 81 FR 2658 (Jan. 15, 2016). These definitions were necessary
to explain and implement the statute, and do not contradict the
statute. Federal courts have recognized ATF's authority to classify
devices as ``firearms'' under Federal law. See, e.g., Demko v. United
States, 44 Fed. Cl. 83, 93 (1999) (destructive device); Akins v. United
States, 312 F. App'x 197 (11th Cir. 2009) (per curiam) (machinegun).
This rule is based upon this authority. Further, ATF has provided
technical and legal reasons why bump-stock-type devices enable
automatic fire by a single function of the trigger, and thus qualify as
machinegun conversion devices, not mere ``accessories.'' ATF has
regularly classified items as machinegun ``conversion devices'' or
``combinations of parts,'' including auto sears (ATF Ruling 81-4) and
the Akins Accelerator (ATF Ruling 2006-2).
The Department agrees that regulatory agencies may not promulgate
rules that conflict with statutes. However, the Department disagrees
that the rule conflicts with the statutes or is in contravention of
administrative-law principles. The rule merely defines terms used in
the definition of ``machinegun'' that Congress did not--the terms
``automatically'' and ``single function of the trigger''--as part of
implementing the provisions of the NFA and GCA.
When a court is called upon to review an agency's construction of
the statute it administers, the court looks to the framework set forth
in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842-43 (1984). The first step of the Chevron review is to ask
``whether Congress has directly spoken to the precise question at
issue.'' Id. at 842. ``If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress. If, however,
the court determines Congress has not directly addressed the precise
question at issue . . . . the question for the court is whether the
agency's answer is based on a permissible construction of the
statute.'' Id. at 842-43 (footnote omitted).
The Department believes that this rule's interpretations of
``automatically'' and ``single function of the trigger'' in the
statutory definition of ``machinegun'' accord with the plain meaning of
those terms. Moreover, even if those terms are ambiguous, this rule
rests on a reasonable construction of them. Although Congress defined
``machinegun'' in the NFA, 26 U.S.C. 5845(b), it did not further define
the components of that definition. See, e.g., United States v. One TRW,
Model M14, 7.62 Caliber Rifle, 441 F.3d 416, 419 (6th Cir. 2006)
(noting that the NFA does not define the phrases ``designed to shoot''
or ``can be readily restored'' in the definition of ``machinegun'').
Congress thus implicitly left it to the Department to define
``automatically'' and ``single function of the trigger'' in the event
those terms are ambiguous. See Chevron, 467 U.S. at 844. Courts have
appropriately recognized that the Department has the authority to
interpret elements of the definition of ``machinegun'' like
``automatically'' and ``single function of the trigger.'' See York v.
Sec'y of Treasury, 774 F.2d 417, 419-20 (10th Cir. 1985); United States
v. Dodson, 519 F. App'x 344, 348-49 & n.4 (6th Cir. 2013); cf., e.g.,
Firearms Import/Export Roundtable Trade Grp. v. Jones, 854 F. Supp. 2d
1, 18 (D.D.C. 2012) (upholding ATF's interpretation of 18 U.S.C. 925(d)
to ban importation of certain firearm parts under Chevron ``step
one''); Modern Muzzleloading, Inc. v. Magaw, 18 F. Supp. 2d 29, 35-36
(D.D.C. 1998) (``since the ATF's classification of [a firearm as not
antique] `amounts to or involves its interpretation' of the GCA, a
statute administered by the ATF, we review that interpretation under
the deferential standard announced in Chevron'').
Second, the Department's construction of those terms is reasonable
under Chevron. As explained in more detail in Part III, the Department
is clarifying its regulatory definition of ``automatically'' to conform
to how that word was understood and used when the NFA was enacted in
1934. See Olofson, 563 F.3d at 658. And the Department is reaffirming
that a single pull of the trigger is a single function of the trigger,
consistent with the NFA's legislative history, ATF's previous
determinations, and judicial precedent. See, e.g., Akins, 312 F. App'x
at 200. This rule is therefore lawful under the NFA and GCA even if the
operative statutory terms are ambiguous.
g. Violation of the Americans With Disabilities Act
Comments Received
A few commenters indicated that bump-stock-type devices are
assistive devices for people with nerve damage or a physical
disability. A few commenters further stated that the regulation could
be a violation of the Americans with Disabilities Act (ADA), 42 U.S.C.
ch. 126. In particular, one commenter claimed that under the ADA, an
individual can establish coverage under the law by ``showing that he or
she has been subjected to an action prohibited under the Act because of
an actual or perceived physical [condition] that is not transitory and
minor.'' The commenter asserted that this regulation constitutes such
``an action'' and would violate the civil rights of a diverse group of
persons with disabilities, including homeowners, veterans, target
shooters, and hunters.
Department Response
The Department disagrees with commenters that the final rule would
violate the ADA. While the ADA applies to State and local governments,
it does not apply to the Executive Branch of the Federal Government.
See 42 U.S.C. 12131(1) (defining ``public entity'' as
[[Page 66528]]
any State or local government; any department, agency, special purpose
district, or other instrumentality of a State or States or local
government; and the National Railroad Passenger Corporation, and any
commuter authority). Accordingly, because ATF is a Federal agency that
is not subject to the ADA, the commenters' assertion that ATF's
regulation would violate the ADA is incorrect.
While not mentioned by commenters, ATF is covered by section 504 of
the Rehabilitation Act of 1973, which prohibits discrimination, solely
by reason of disability, in Federally conducted programs and
activities. 29 U.S.C. 794(a) (stating that ``[n]o otherwise qualified
individual with a disability . . . shall, solely by reason of her or
his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under . . . any program
or activity conducted by any Executive agency''). As detailed above,
the sole purpose of this rulemaking is to clarify that bump-stock-type
devices satisfy the statutory definition of ``machinegun,'' as defined
by Congress in the NFA and GCA. While a few commenters made general
assertions that bump-stock-type devices can be used as assistive
devices for people with disabilities, none submitted any specific
information to suggest that this rule would cause qualified individuals
with disabilities, solely by reason of their disability, to be excluded
from the participation in, subjected to discrimination under, or denied
the benefits of any program or activity of ATF. Accordingly, there is
nothing in the record to suggest that this rule would raise concerns
under the Rehabilitation Act.
2. Politically Motivated and Emotional Response
Comments Received
At least 41,954 commenters opposed to the rule, including the
40,806 comments submitted through the NAGR petition, asserted that the
proposed rule is a political or knee-jerk response to a tragic
incident. Many commenters suggested that the proposed rule reflected
political pressure and would be a hasty response that would not achieve
real benefits and could lead to confiscating all guns. A handful of
commenters even asserted they would support the elimination of ATF.
Petitions submitted through NAGR portray the rule as a response to
``the anti-gun left . . . so they can turn millions of commonly owned
firearms into `illegal guns' with the stroke of a pen.'' They cautioned
that this rule unfairly capitalizes on the misfortunes of others to
push political agendas and that facts should not be thrown aside.
Another commenter said that this rule will be tainted because from the
beginning the President made clear he had no intention of instructing
the Department to abide by the public comments, having declared that
bump-stock-type devices ``will soon be out'' after the ``mandated
comment period'' notwithstanding possible congressional action.
Department Response
While the Las Vegas tragedy brought attention to bump-stock-type
devices and requests from Congress and nongovernmental organizations
prompted ATF to review its classification of bump-stock-type devices,
the Department disagrees that this rulemaking is an unreasoned reaction
to recent events. As discussed in the NPRM, see Part III above, ATF
recognized that its prior classifications determining only some bump-
stock-type devices to be machineguns did not include extensive legal
analysis of certain terms that are significant to defining
``machinegun'' under the NFA and were not always consistent. This final
rule defines the terms ``automatically'' and ``single function of the
trigger'' to clarify the meaning of machinegun and to make clear that
bump-stock-type devices are machineguns under the meaning of the
statute. The Department further notes that the President specifically
directed it to clarify the legal status of bump-stock-type devices
through the administrative ``procedures the law prescribes,'' including
notice and comment. 83 FR 7949 (Feb. 23, 2018).
3. Not Used in Criminal Activity
Comments Received
Numerous commenters expressed that besides the shooting in Las
Vegas, there is no evidence that bump-stock-type devices have been used
in the commission of crimes. Several commenters stated that, pursuant
to a Freedom of Information Act request, they asked ATF and the Federal
Bureau of Investigation (FBI) for any records on whether bump-stock-
type devices have been used in crimes and that they received no
confirmation affirming the existence of any such records. Moreover,
some commenters stated that ATF provided no evidence or justification
that bump-stock-type devices will be used more frequently in future
crimes. They argued that if the agency cannot show what materials it
relied on to regulate bump-stock-type devices for purposes of public
safety, then the rulemaking is arbitrary and capricious under the APA.
Commenters cited judicial decisions such as Motor Vehicle Manufacturers
Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 52
(1983), in which the Supreme Court held that when an agency rescinds or
changes its stance on a regulation, it must explain the evidence
underlying its decision and offer a rational connection between the
facts found and the choice made.
Many commenters also noted that there is still no confirmation or
documentation, despite requests, from Federal agencies confirming that
bump-stock-type devices were actually used in the Las Vegas incident,
and that ATF has not issued a ``Report of Technical Examination'' (ATF
Form 3311.2) for any of the firearms used in the incident. With
questions remaining about the Las Vegas criminal investigation and
doubts as to whether bump-stock-type devices were actually used,
commenters argued that ATF has no basis to promulgate a regulation
that, as ATF declared in the NPRM, ``would affect the criminal use of
bump-stock-type devices in mass shootings, such as the Las Vegas
shooting incident.'' 83 FR at 13454.
These arguments were frequently raised alongside concerns that the
cost-benefit analysis did not address the fact that there would be few
benefits to the rule given that bump-stock-type devices have supposedly
been used in only one crime. These concerns are addressed in Part
IV.I.5.
Department Response
The Department disagrees that ATF seeks to regulate bump-stock-type
devices merely because they were, or have the potential to be, used in
crime. The NPRM stated that the Las Vegas shooting made ``individuals
aware that these devices exist--potentially including persons with
criminal or terrorist intentions--and made their potential to threaten
public safety obvious.'' 83 FR at 13447. But the NRPM also provided a
detailed analysis explaining that bump-stock-type devices must be
regulated because they satisfy the statutory definition of
``machinegun'' as it is defined in the NFA and GCA. Id. at 13447-48.
Commenters conflate the legal basis for ATF's regulation of bump-
stock-type devices with the background information that was provided as
context for the reason ATF revisited its previous classifications. In
the NPRM, ATF explained that the tragedy in Las Vegas gave rise to
requests from Congress and nongovernmental organizations that ATF
examine its past
[[Page 66529]]
classifications and determine whether bump-stock-type devices currently
on the market constitute machineguns under the statutory definition.
Id. at 13446. While part of the Department's mission is to enhance
public safety, the impetus for the change in classification was not, as
commenters argued, that the device may potentially pose a public safety
threat but because, upon review, ATF believes that it satisfies the
statutory definition of ``machinegun.'' This rule reflects the public
safety objectives of the NFA and GCA, but the materials and evidence of
public safety implications that commenters seek have no bearing on
whether these devices are appropriately considered machineguns based on
the statutory definition.
In Motor Vehicle Manufacturers Ass'n v. State Farm Mutual
Automobile Insurance Co., 463 U.S. 29 (1983), the Supreme Court wrote
that an ``agency must examine the relevant data and articulate a
satisfactory explanation for its action including a `rational
connection between the facts found and the choice made.' '' Id. at 43
(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156,
168 (1962)). However, that case involved a Federal agency that
rescinded a final rule--based on data and policy choices--shortly after
publication, arguing that that rule was no longer necessary for a
multitude of reasons, including that the costs outweighed the safety
benefits. See id. at 38-39. The Supreme Court recognized that any
change requires a reasoned basis, noting that ``[i]f Congress
established a presumption from which judicial review should start, that
presumption--contrary to petitioners' views--is not against safety
regulation, but against changes in current policy that are not
justified by the rulemaking record.'' Id. at 42. However, the
revocation in that case involved a discretionary policy decision, and
did not depend solely upon statutory construction. The bump-stock-type
device rule is not a discretionary policy decision based upon a myriad
of factors that the agency must weigh, but is instead based only upon
the functioning of the device and the application of the relevant
statutory definition. Therefore, the Department does not believe that
this rule conflicts with State Farm.
4. Will Not Enhance Public Safety
Comments Received
More than 1,100 commenters indicated that a regulation on bump-
stock-type devices would have no measurable effect on the current rate
of crime or enhance public safety. One commenter argued that the use of
bump-stock-type devices by mass shooters might actually save lives
based on his experience that using the device can result in a rifle
jamming, misfeeding, or misfiring, which would be the best time to
disrupt a shooter. Other commenters noted that bump-stock-type devices
actually impede a shooter's ability to fire accurately. Commenters
stated that there is currently no empirical evidence that further
firearms regulations would reduce crime or safeguard people more
effectively. One commenter, for example, estimated that out of the tens
of thousands of gun deaths per year, most of which he stated are
suicides, the proposed rule would only impact a minute percentage,
while another commenter opined that crime rate data from the FBI show
that areas with more firearms restrictions have more crime. A handful
of commenters pointed to Chicago as having some of the most stringent
gun restrictions yet continuing to have high rates of homicide and gun-
related deaths that ``surpass[] war zones.''
Many commenters opposed to the regulation maintained that neither
this rule nor any new gun laws will prevent criminals or people with
malicious intent from proceeding to commit crimes. Several voiced the
opinion that people determined to kill many people will find other
means, such as cars, knives, toxic substances, homemade explosives, or
any other object. The problem, they argued, is not the object, but the
person who controls it--and that criminals will do whatever they can to
accomplish unlawful ends. One commenter, identifying as a law
enforcement officer, wrote that he frequently encounters prohibited
possessors who still somehow obtain a firearm and do not care about the
consequences. Another commenter stated that the fact that the shooter
in Las Vegas was well aware that murder is unlawful but chose to ignore
the law only serves as proof that laws do not stop evildoers.
Additionally, several hundred commenters stated that ATF should
focus its time and energy on enforcing existing gun laws and
regulations rather than issuing a new one. One commenter, a former
corrections officer from Baltimore, suggested that time would be better
spent prosecuting criminals for crimes on the books. Similarly, another
commenter noted that ``[w]hen the courtrooms are revolving doors that
push gang members right back out,'' the problem is not the lack of laws
but rather a lack of tools and resources devoted to enforcing the
existing laws. Some commenters remarked that had there been better
policing, certain mass shootings could have been avoided.
Department Response
The Department agrees with the commenters that the existing laws
should be enforced, and the Department is committed to addressing
significant violent crime problems facing our communities. No law or
regulation entirely prevents particular crimes, but the Las Vegas
shooting illustrated the particularly destructive capacity of bump-
stock-type devices when used in mass shooting incidents. In any event,
the impetus for this rule is the Department's belief, after a detailed
review, that bump-stock-type devices satisfy the statutory definition
of ``machinegun.'' Through the NFA and GCA, Congress took steps to
regulate machineguns because it determined that machineguns were a
public safety threat. ATF must therefore classify devices that satisfy
the statutory definition of ``machinegun'' as machineguns. The proposed
rule is thus lawful and necessary to provide public guidance on the
law.
5. Punishes Law-Abiding Citizens
Comments Received
At least 2,103 commenters opposed the rule on the ground that it
would punish law-abiding citizens and would turn them instantly into
potential felons. They asserted that hundreds of thousands of law-
abiding citizens are being punished for the acts of one evil person and
that the overwhelming majority use bump-stock-type devices lawfully and
for fun. Many commenters, some of whom do not own a bump-stock-type
device, objected that owners of these devices would become felons
overnight just for owning a piece of plastic that is not needed to
achieve bump firing. They further pointed out that because there is no
grandfathering provision, law-abiding gun owners would have to
surrender any bump-stock-type devices after having spent money to buy
them. Many raised these objections in connection with concerns that the
rule is unconstitutional under the Ex Post Facto Clause and the Takings
Clause of the Constitution, as already discussed in this preamble.
Moreover, some commenters, concerned that the rule's proposed language
could later apply to other trigger assemblies, stated that thousands of
law-abiding citizens may eventually become criminals overnight for
simply owning a non-factory trigger.
[[Page 66530]]
Department Response
The Department disagrees that law-abiding citizens would instantly
become felons under this rule. This final rule provides specific
information about acceptable methods of disposal, as well as the
timeframe under which disposal must be accomplished to avoid violating
18 U.S.C. 922(o). Current possessors of bump-stock-type devices who
properly destroy or abandon their devices will avoid criminal
liability. As described in Part IV.D.1.b, this is not a compensable
``taking'' of property under the Constitution.
6. Other Priorities and Efficiencies
Comments Received
Hundreds of commenters who oppose the rule suggested that the focus
should not be on any new gun regulation but rather on an array of other
issues, including addressing mental health, drug addiction, education,
civility, and the decline of parenting and morals. Many argued that
more resources should be devoted to treating the mentally ill or to the
opioid epidemic, including ensuring that law enforcement and mental
health agencies have the power to incarcerate and institutionalize
people who are a danger to themselves or others. Several others
suggested that resources should be devoted to securing public spaces,
observing that the U.S. Capitol and all Federal buildings have armed
security but many schools and workplaces do not. Numerous commenters
noted that other improvements are needed before any new gun restriction
is pursued, such as improving records in the National Instant Criminal
Background Check System (NICS), properly charging persons with crimes
that would bar them from owning firearms, or addressing bullying and
teaching morals and the Bible in schools. One commenter suggested the
Government investigate the social changes that are turning men into
killers, while another said that to make a difference, one needs to go
after the videogame industry and Hollywood movies that glorify carnage,
body counts, murder, and violence. Commenters argued that only once
these issues are tackled can discussion of new gun regulations begin.
Department Response
The Department acknowledges comments regarding treatment of mental
health and drug addiction, securing schools and workplaces, improving
records in the NICS system, and various social issues. The Department
agrees that these are important issues, but they are outside the scope
of this rulemaking. Several of these matters were raised as
alternatives for the Department to consider. See Part IV.F for further
discussion of alternatives.
7. Enforcement and Compliance
Comments Received
Some commenters questioned how ATF will enforce this regulation,
and a few stated that they or people they know of will not comply with
this rule should it go into effect. Several questioned whether the
agency would send armed agents to visit homes and confiscate bump-
stock-type devices, while others pointed out that because bump-stock-
type devices have not been tracked in any way, confiscation will depend
on volunteers. Commenters highlighted the lack of success that certain
States, such as Massachusetts, have had in collecting bump-stock-type
devices after passing laws restricting their possession. Many
commenters suggested it would be a waste of ATF employees' time and
public funds for ATF to implement the rule. Several others remarked
that confiscation or enforcement would be easily circumvented because
new technology like 3D printing and CNC (Computer Numeric Control)
equipment (computerized milling machines), or even traditional
manufacturing methods, will facilitate a black market in homemade bump-
stock-type devices. One commenter submitted to ATF ``a fully
functional'' bump-stock equivalent that was created ``using super glue,
2-part epoxy, an AR-15 A2 pistol grip, threaded steel rods, and small
ABS plastic bricks [i.e., Legos].''
Department Response
The Department acknowledges comments on enforcement of and
compliance with the rule. As stated in the NPRM, current possessors of
bump-stock-type devices will be obligated to dispose of these devices.
Acceptable methods of destruction include completely melting,
shredding, or crushing the device. If the device is made of metal, an
alternative acceptable method of destruction is using an oxy/acetylene
torch to make three angled cuts that completely severs design features
critical to the functionality of the bump-stock-type device. Each cut
should remove at least \1/4\ inch of metal per cut. Any method of
destruction must render the device so that it is not readily restorable
to a firing condition or is otherwise reduced to scrap. However, as the
majority of bump-stock-type devices are made of plastic material,
individuals may use a hammer to break them apart so that the device is
not readily restorable to a firing condition or is otherwise reduced to
scrap, and throw the pieces away.
Current possessors are encouraged to undertake destruction of the
devices. However, current possessors also have the option to abandon
bump-stock-type devices at the nearest ATF office.
Current possessors of bump-stock-type devices will have until the
effective date of the rule (90 days from the date of publication in the
Federal Register) to comply. Additional information on the destruction
of bump-stock-type devices will be available at www.atf.gov.
8. Lack of Consistency
Comments Received
Hundreds of commenters indicated that ATF's reversal of position
from its earlier determinations and insistence that a bump-stock-type
device now qualifies as a machinegun under the NFA ``hurts [the
agency's] credibility.'' As one commenter remarked, the perpetual state
of inconsistencies, whereby products are approved and then later ruled
to be illegal by ATF, ``creates an air of fear and distrust in the
gunowning public,'' and moreover, ``calls into question the validity
and competence of the very agency charged with making these
determinations.'' Several commenters argued that ATF's lack of
consistency only serves to increase distrust of the agency, the
Government, and the legal process.
Department Response
The Department acknowledges comments regarding the inconsistency in
ATF's previous classifications of some bump-stock-type devices as
machineguns and others as non-machineguns. As described in Part III,
upon review, ATF recognized that the decisions issued between 2008 and
2017 did not provide consistent or extensive legal analysis regarding
the term ``automatically'' as that term applies to bump-stock-type
devices. Consistent with its authority to reconsider and rectify its
past classifications, the Department accordingly clarifies that the
definition of ``machinegun'' in the NFA and GCA includes bump-stock-
type devices because they convert an otherwise semiautomatic firearm
into a machinegun by functioning as a self-acting or self-regulating
mechanism that harnesses the recoil energy of the semiautomatic firearm
in a manner that allows the trigger to reset and continue firing
without additional physical manipulation of the trigger by the shooter.
The Supreme Court has made clear that this sort of regulatory
correction is permissible. An agency
[[Page 66531]]
may change its course as long as it ``suppl[ies] a reasoned analysis
for the change,'' which the Department has done at length in the NPRM
and this final rule. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 42 (1983). And the agency bears no heightened
burden in prescribing regulations that displace inconsistent previous
regulatory actions. FCC v. Fox Television Stations, Inc., 556 U.S. 502,
514-15 (2009).
9. Earlier Determinations Correct
Comments Received
Over 1,500 commenters opposed to the rule maintained that ATF's
earlier classifications determining certain bump-stock-type devices not
to be subject to the NFA or GCA were correct and should not be
reversed. These commenters stated that reversing this position is
unnecessary and unlawful. To make the point that ATF is bound by its
prior determinations, many commenters submitted ATF's own
classification letters and highlighted the Department's arguments made
in litigation as evidence that the rule on bump-stock-type devices is
an arbitrary decision. In particular, commenters cited the Department's
arguments made in litigation with Freedom Ordnance Manufacturing, Inc.
(``Freedom Ordnance''), No. 3:16-cv-243 (S.D. Ind. filed Dec. 13,
2016). There, the Department defended its decision to classify Freedom
Ordnance's Electronic Reset Assistant Device (ERAD) as a machinegun. In
responding to Freedom Ordnance's argument that the ERAD was a bump-
stock-type device and not subject to regulation, the Department stated
such stocks were not machineguns because ``[b]ump firing requires the
shooter to manually and simultaneously pull and push the firearm in
order for it to continue firing.'' Brief for ATF in Support of Motion
for Summary Judgment and in Opposition to Plaintiff's Motion for
Summary Judgment, ECF No. 28, at 21 (July 27, 2017). These prior
decisions and admissions, commenters argued, preclude the Department
from suddenly reversing its decision.
Department Response
The Department acknowledges that ATF previously determined that
certain bump-stock-type devices were not ``machineguns'' under the law.
The Department notes, however, that a great deal of its analysis in the
Freedom Ordnance litigation was fully consistent with its position in
this rule. For example, the Department adhered to its view that a
single pull is a ``single function'' of the trigger, see id. at 13-14,
and it argued that a device that relieves the shooter from having to
``pull and release the trigger for each individual, subsequent shot''
converts the firearm into a machinegun, id. at 22. While the Department
accepted the previous classification of some bump-stock-type devices as
non-machineguns, it relied on the mistaken premise that the need for
``shooter input'' (i.e., maintenance of pressure) for firing with bump-
stock-type devices means that such devices do not enable ``automatic''
firing, see id. at 21--even though Freedom Ordnance's ERAD also
required maintenance of pressure by the shooter, see id. at 20.
In any event, as explained in the NPRM, the Department believes
that ATF clearly has authority to ``reconsider and rectify'' its
classification errors. Akins, 312 F. App'x at 200; see also Fox, 556
U.S. at 514-15; Hollis v. Lynch, 121 F. Supp. 3d 617, 642 (N.D. Tex.
2015) (no due process violation in ATF's revocation of mistaken
approval to manufacture a machinegun). In the NPRM, the Department
noted that ``ATF has reviewed its original classification
determinations for bump-stock-type devices from 2008 to 2017 in light
of its interpretation of the relevant statutory language, namely the
definition of `machinegun.' '' 83 FR at 13446. The NPRM explained that
``ATF's classifications of bump-stock-type devices between 2008 and
2017 did not include extensive legal analysis of these terms in
concluding that the bump-stock-type devices at issue were not
`machineguns.' '' Id. Specifically, some of these rulings concluded
that such devices were not machineguns because they did not ```initiate
[ ] an automatic firing cycle that continues until either the finger is
released or the ammunition supply is exhausted,' '' but did not provide
a definition or explanation of the term ``automatically.'' Id. at
13445. This is precisely the purpose of this rule. As explained in more
detail in Part III, the Department has determined that bump-stock-type
devices enable a shooter to initiate an automatic firing sequence with
a single pull of the trigger, making the devices machineguns under the
NFA and GCA. Consistent with the APA, this rule is the appropriate
means for ATF to set forth its analysis for its changed assessment. See
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S.
29, 57 (1983).
10. Bump Firing and Bump-Stock-Type Device Operation
a. Bump-Stock-Type Device Operation
Comments Received
More than 17,000 commenters argued that ATF cannot proceed because
its description of how bump-stock-type devices operate is inaccurate
and that the proposed rule is based on a false premise. Commenters
emphatically argued that bump-stock-type devices do not make a
semiautomatic firearm shoot automatically by a single function of the
trigger. They stated: (1) No part of the bump-stock-type device touches
the trigger itself, but rather touches only the shooter's trigger
finger, and (2) if bump-stock-type devices made semiautomatic rifles
fully automatic, then holding the gun with only the trigger finger hand
while depressing the trigger should cause the gun to repeatedly fire,
which does not happen when a rifle is affixed with a bump-stock-type
device. One commenter said that should ATF be asked to demonstrate the
firing of a rifle equipped with a bump-stock-type device with the
shooter only using his trigger hand, and no coordinated input from the
other hand, it could not be done, as it requires two hands, skill, and
coordination. Similarly, another commenter asserted that while various
manual bump-firing techniques ``vary in difficulty and are arguably
more difficult to master than the use of a bump-stock-type device, the
fact is that they use exactly the same principle as a bump-stock-type
device without the use of such a device, and thus the device itself
cannot be the `primary impetus for a firing sequence' as described.''
Several commenters raised specific objections to ATF's description
in the NPRM that a bump-stock-type device ``harnesses the recoil energy
[of a firearm] to slide the firearm back and forth so that the trigger
automatically re-engages by `bumping' the shooter's stationary trigger
finger without additional physical manipulation of the trigger by the
shooter'' and that the device is ``a self-acting and self-regulating
force that channels the firearm's recoil energy in a continuous back-
and-forth cycle that allows the shooter to attain continuous firing
after a single pull of the trigger so long as the trigger finger
remains stationary on the device's extension ledge (as designed).'' 83
FR at 13443. These commenters disputed these descriptions, stating that
a bump-stock-type device does not harness any recoil energy and there
is nothing that makes it an energy sink (such as a spring) that stores
recoil
[[Page 66532]]
energy to move the firearm forward. Further, they argued that further
physical manipulation is required to operate a firearm equipped with a
bump-stock-type device--specifically, the shooter must physically
manipulate the trigger after every shot fired by pushing the firearm
forward to re-engage the trigger.
The bump-stock firing sequence is not automatic, commenters argued,
because trigger reset is not caused by a mechanical device, part, or
combination of parts associated with pulling the trigger. Reset occurs,
they said, only if continuous forward motion and pressure is applied by
the non-trigger hand or arm of the shooter, not the device. As
described by some commenters, ``[t]he trigger of a semiautomatic
firearm in a bump-stock type device is being repeatedly actuated,
functioned, pulled (take your pick) by the non trigger hand of the
shooter pushing the firearm forward. That actuation, function, [or]
pull can and often does occur entirely independent of recoil. Recoil is
incidental to the firing sequence of a bump-stock type device equipped
semiautomatic firearm, not intrinsic.'' In challenging ATF's proposed
rule and description of how these devices operate, one commenter asked
ATF to provide the history of the machinegun and semiautomatic
firearms, along with a discussion of the differences between the
mechanical and legal definitions.
In sum, commenters argued that because ATF's premise of how bump-
stock-type devices operate is inaccurate, there is no basis for ATF to
regulate them as machineguns.
Department Response
The Department disagrees that ATF's description of how bump-stock-
type devices operate is inaccurate. ATF explained that bump-stock-type
devices ``are generally designed to operate with the shooter
shouldering the stock of the device (in essentially the same manner a
shooter would use an unmodified semiautomatic shoulder stock),
maintaining constant forward pressure with the non-trigger hand on the
barrel-shroud or fore-grip of the rifle, and maintaining the trigger
finger on the device's extension ledge with constant rearward
pressure.'' 83 FR at 13443. The Department believes that this
accurately describes the operation of these devices. Further, ATF
explained that bump-stock-type devices ``are designed to allow the
shooter to maintain a continuous firing cycle after a single pull of
the trigger by directing the recoil energy of the discharged rounds
into the space created by the sliding stock (approximately 1.5 inches)
in constrained linear rearward and forward paths.'' Id. This is a
distinctive feature of bump-stock-type devices and enables the unique
functioning and operation of these devices. The bump-stock-type device
captures and harnesses the firearm's recoil to maintain a continuous
firing sequence, and thus is properly described as ``a self-acting or
self-regulating mechanism.'' The very purpose of a bump-stock-type
device is to eliminate the need for the shooter to manually capture,
harness, or otherwise utilize this energy to fire additional rounds, as
one would have to do to ``bump fire'' without a bump-stock-type device.
Further, this mechanism ``allows the firing of multiple rounds through
a single function of the trigger'' because, as explained in the NPRM,
ATF's interpretation that the phrase ``single function of the trigger''
includes a ``single pull of the trigger'' ``is consonant with the
statute and its legislative history.'' Akins v. United States, 312 F.
App'x 197, 200 (11th Cir. 2009) (per curiam).
The Department agrees with the commenters that ``[n]o part of the
bump stock touches the trigger, only the shooter[']s trigger finger.''
However, this is neither legally nor technically determinative. The
fact that a bump-stock-type device does not touch the trigger does not
mean that the device has not acted automatically (by directing and
utilizing recoil energy) or that anything other than a single pull of
the trigger occurred. That is, the bump-stock-type device remains ``a
self-acting or self-regulating mechanism'' for the reasons described in
this section. The fact that bump-stock-type devices do not touch the
trigger does not mean that they do not qualify as machineguns within
the meaning of the NFA and GCA. ATF has provided a thorough explanation
of their functioning, showing that a semiautomatic firearm utilizing a
bump-stock-type device ``shoots automatically more than one shot,
without manual reloading, by a single function of the trigger.'' 26
U.S.C. 5845(b).
Additionally, the Department disagrees that to be classified as a
``machinegun'' under the NFA, a firearm must fire ``repeatedly'' when a
shooter holds and fires the gun with only the trigger-finger hand. Any
such argument misconstrues the meaning of ``automatically.'' As
explained above, bump-stock-type devices operate automatically because
their design eliminates the requirement that a shooter manually capture
and direct recoil energy to fire additional rounds. In this way,
semiautomatic firearms shoot ``automatically'' when equipped with bump-
stock-type devices in that their recoil energy is channeled through
these ``self-acting or self-regulating mechanisms.'' The commenters'
positions reflect previous analysis that ATF is now correcting. ATF
explained above that ``[p]rior ATF rulings concerning bump-stock-type
devices have not provided substantial legal analysis regarding the
meaning of the term `automatically' as it is used in the GCA and NFA.''
83 FR at 13445.
The Department disagrees that a shooter repeatedly actuates,
functions, or pulls the trigger of a semiautomatic firearm using a
bump-stock-type device with the non-trigger hand by ``pushing the
firearm forward.'' In fact, the shooter ``pulls'' the trigger once and
allows the firearm and attached bump-stock-type device to operate until
the shooter releases the trigger finger or the constant forward
pressure with the non-trigger hand. The non-trigger hand never comes in
contact with the trigger and does not actuate, function, or pull it. By
maintaining constant forward pressure, a shooter relies on the device
to capture and direct recoil energy for each subsequent round and
requires no further manipulation of the trigger itself.
In this way, the Department also disagrees that ``[r]ecoil is
incidental to the firing sequence of a bump-stock type device equipped
semiautomatic firearm, not intrinsic.'' Without recoil and the capture
and directing of that recoil energy, a bump-stock-type device would be
no different from a traditional shoulder stock. As numerous commenters
acknowledged, bump-stock-type devices allow shooters to fire
semiautomatic firearms at a faster rate and in a different manner than
they could with traditional shoulder stocks. Bump-stock-type devices do
this by capturing and directing recoil mechanically, enabling
continuous fire without repeated manual manipulation of the trigger by
a shooter.
b. Bump-Stock-Type Device Firing Technique
Comments Received
Thousands of commenters objected to the proposed rule on grounds
that bump-stock-type devices are novelty items that assist with bump
firing, which is a technique that any shooter can perform with training
or with everyday items such as a rubber band or belt loop. Many
commenters stated that all semiautomatic firearms can be bump fired by
a shooter simply holding the trigger finger stationary and pushing the
weapon forward until the trigger is depressed against it to the point
of
[[Page 66533]]
firing, and that use of bump-stock-type devices makes using the bump-
fire shooting technique safer for the shooter and those around the
shooter. Some commenters also gave examples of extremely skilled and
fast shooters who do not need any assistive device or item to fire a
semiautomatic firearm at a rapid rate. Commenters therefore argued that
if the Department proceeds to prohibit possession of bump-stock-type
devices they must also ban rubber bands, belt loops, string, or even
people's fingers.
Department Response
The Department disagrees with commenters' assessments and believes
that bump-stock-type devices are objectively different from items such
as belt loops that are designed for a different primary purpose but can
serve an incidental function of assisting with bump firing. To bump
fire a firearm using a belt loop or a similar method without a bump-
stock-type device, a shooter must put his thumb against the trigger and
loop that thumb through a belt loop. With the non-trigger hand, the
shooter then pushes the firearm forward until the thumb engages the
trigger and the firearm fires. The recoil pushes the firearm backwards
as the shooter controls the distance of the recoil, and the trigger
resets. The constant forward pressure with the non-trigger hand pushes
the firearm forward, again pulling the firearm forward, engaging the
trigger, and firing a second round.
This rule defines the term ``automatically'' to mean ``functioning
as the result of a self-acting or self-regulating mechanism.'' Bump-
stock-type devices enable semiautomatic firearms to operate
``automatically'' because they serve as a self-acting or self-
regulating mechanism. An item like a belt loop is not a ``self-acting
or self-regulating mechanism.'' When such items are used for bump
firing, no device is present to capture and direct the recoil energy;
rather, the shooter must do so. Conversely, bump-stock-type devices are
specifically designed to capture the recoil energy, a force that
initiates a firing sequence that ultimately produces more than one
shot. That firing sequence is ``automatic'' because the device
harnesses the firearm's recoil energy as part of a continuous back-and-
forth cycle that allows the shooter to attain continuous firing after a
single pull of the trigger.
Bump firing utilizing a belt loop or similar method of maintaining
tension on the firearm is thus more difficult than using a bump-stock-
type device. In fact, the belt-loop method provides a stabilizing point
for the trigger finger but relies on the shooter--not a device--to
harness the recoil energy so that the trigger automatically re-engages
by ``bumping'' the shooter's stationary trigger finger. Unlike a bump-
stock-type device, the belt loop or a similar manual method requires
the shooter to control the distance that the firearm recoils and the
movement along the plane on which the firearm recoils.
ATF's previous bump-stock-type device classifications determined
that these devices enable continuous firing by a single function of the
trigger. Other firing techniques may do the same because they rely on a
single ``pull.'' However, as ATF has made clear, a determining factor
is whether the device operates or functions automatically. The proposed
and final rules make clear that if a device incorporates a self-acting
or self-regulating component for the firing cycle, the firearm equipped
with the device operates automatically. Again, this differs from
traditional semiautomatic firearms because the trigger must be
repeatedly manipulated by the shooter to fire additional rounds,
whereas a bump-stock-type device allows for a single pull, and the
self-acting or self-regulating device automatically re-engages the
trigger finger.
Further, while skilled shooters may be able to fire more rapidly
than a shooter employing a bump-stock-type device on a semiautomatic
firearm, they do so by pulling and releasing the trigger for each shot
fired. This is a fundamental distinction between skilled shooters and
those employing bump-stock-type devices. Bump-stock-type devices
require that a shooter pull the trigger to fire the first round and
merely maintain the requisite pressure to fire subsequent rounds. This
is the purpose of a bump-stock-type device--to make rapid firing easier
without the need to pull and release the trigger repeatedly. This shows
that skilled shooters would be unaffected by the proposed rule and
counters commenters' arguments that the rule is ``arbitrary and
capricious'' on these grounds.
11. Proposed Definitions
a. Vagueness--Rate of Fire
Comments Received
Many commenters focused on the increased rate of fire associated
with bump-stock-type devices and objected to the proposed regulation
being ``based, at least in part, on the idea that bump stocks are
machineguns because they `allow[ ] ``rapid fire'' of the semiautomatic
firearm,' `increase the rate of fire of semiautomatic firearms,' and
`mimic automatic fire' '' (quoting 83 FR at 13443-44). Commenters
objected to classifying bump-stock-type devices as machineguns because
``a high rate of fire alone does not transform a semi-automatic into an
automatic weapon under the NFA.''
Additionally, other commenters objected to classifying other
``rate-increasing devices'' as machineguns because doing so would
require a standard rate of fire to be defined, which some said is
impossible, or would capture certain semiautomatic firearms and
firearms accessories. A few commenters pointed out that ``[t]rue
machine guns do not require freedom to oscillate fore and aft to
increase their rate of fire. The rate of fire of a machine gun is
intrinsic to the weapon and completely independent of the shooter's
manual dexterity, the firing position, the number of hands holding the
firearm, and any degree of freedom of motion. . . . Bump stocks do not
increase the rate of fire when the semiautomatic firearm is operated
with only one hand--even when shouldered. The human element is
indispensable to any firing rate increase achieved with a bump stock.''
Department Response
The Department has neither proposed the rate of fire as a factor in
classifying machineguns, nor utilized this as the applicable standard
in the proposed rule. The Department disagrees with any assertion that
the rule is based upon the increased rate of fire. While bump-stock-
type devices are intended to increase the rate at which a shooter may
fire a semiautomatic firearm, this rule classifies these devices based
upon the functioning of these devices under the statutory definition.
The Department believes that bump-stock-type devices satisfy the
statutory definition of ``machinegun'' because bump-stock-type devices
utilize the recoil energy of the firearm to create an automatic firing
sequence with a single pull of the trigger. The rate of fire is not
relevant to this determination.
The Department also agrees with commenters that the standard rate
of fire of a semiautomatic firearm or machinegun is a characteristic
that is not dependent upon the individual shooter. Any reference to the
``increased'' rate of fire attributable to bump-stock-type devices
refers only to the increased rate of fire that a particular shooter may
achieve. Further, the Department agrees that there is no rate of fire
that can identify or differentiate a machinegun from a semiautomatic
firearm. This is because the statutory definition alone determines
whether a firearm is a
[[Page 66534]]
machinegun. The Department believes that the final rule makes clear
that a bump-stock-device will be classified as a machinegun based only
upon whether the device satisfies the statutory definition.
b. Vagueness--Impact on Semiautomatic Firearms and Other Firearm
Accessories
Comments Received
More than 56,000 commenters, including those submitting through the
three main form letters opposing the rule and the NAGR submission,
indicated that the proposed rule would set a dangerous precedent
because a future ``anti-gun Administration'' will use it to confiscate
millions of legally owned semiautomatic firearms as well as firearm
components and accessories.
Commenters opposed to the rule broadly argued that by classifying
bump-stock-type devices as machineguns, AR-15s and other semiautomatic
firearms also may be classified as machineguns. In particular,
commenters stated that under the GCA, rifles and shotguns are defined
using a ``single pull of the trigger'' standard, in contrast to
machineguns, which are defined by a ``single function of the trigger''
standard under the NFA. Commenters argued that by defining ``single
function of the trigger'' to mean ``single pull of the trigger,'' the
rule will bring all semiautomatic rifles and shotguns currently
regulated under the GCA under the purview of the NFA. Commenters also
argued that the proposed regulatory text encompasses a number of
commercially available items, such as Gatling guns, competition
triggers, binary triggers, Hellfire trigger mechanisms, or even drop-in
replacement triggers. One commenter pointed out that the language
``firing without additional physical manipulation of the trigger by
shooter'' would apply, for instance, to Model 37 pump shotguns made by
Ithaca.
Several commenters said that the proposed rule should be more
narrowly tailored so that it applies to bump-stock-type devices only.
For instance, one commenter proposed that the following be added to the
definition of bump-stock-type device: ``A single accessory capable of
performing the roles of both a pistol grip and a shoulder stock.''
Another commenter suggested that, at most, one sentence could be added
at the end of the definition of ``machinegun'':
For purposes of this definition, the term ``automatically'' as
it modifies ``shoots, is designed to shoot, or can be readily
restored to shoot,'' means a device that--(1) attaches to a
semiautomatic rifle (as defined in section 921(a)(28) of title 18,
United States Code); (2) is designed and intended to repeatedly
activate the trigger without the deliberate and volitional act of
the user pulling the trigger each time the firearm is fired; and (3)
functions by continuous forward pressure applied to the rifle's fore
end in conjunction with a linear forward and backward sliding motion
of the mechanism utilizing the recoil energy when the rifle is
discharged.
One commenter suggested that, instead of trying to define a bump-stock-
type device, it would be better to issue a rule stating that one cannot
modify or replace the current style of stock with one that contains
other features, with exceptions for adjusting the length of the stock
or having a cheek rest.
Department Response
The Department disagrees that other firearms or devices, such as
rifles, shotguns, and binary triggers, will be reclassified as
machineguns under this rule. Although rifles and shotguns are defined
using the term ``single pull of the trigger,'' 18 U.S.C. 921(a)(5),
(7), the statutory definition of ``machinegun'' also requires that the
firearm ``shoots automatically more than one shot, without manual
reloading,'' by a single function of the trigger, 26 U.S.C. 5845(b).
While semiautomatic firearms may shoot one round when the trigger is
pulled, the shooter must release the trigger before another round is
fired. Even if this release results in a second shot being fired, it is
as the result of a separate function of the trigger. This is also the
reason that binary triggers cannot be classified as ``machineguns''
under the rule--one function of the trigger results in the firing of
only one round. By contrast, a bump-stock-type device utilizes the
recoil energy of the firearm itself to create an automatic firing
sequence with a single pull of the trigger. The Department notes that
ATF has already described a ``single pull of the trigger'' as a
``single function of the trigger.'' See ATF Ruling 2006-2.
Further, while the phrase ``firing without additional physical
manipulation of the trigger by the shooter'' would apply to firearms
like the Model 37 pump shotguns made by Ithaca, that firearm could not
be classified as a machinegun under the rule. The Model 37 permits a
shooter to pull the trigger, hold it back, and pump the fore-end. The
pump-action ejects the spent shell and loads a new shell that fires as
soon as it is loaded. While this operates by a single function of the
trigger, it does not shoot ``automatically,'' and certainly does not
shoot ``without manual reloading.'' 26 U.S.C. 5845(b). In fact, the
pump-action design requires that the shooter take action to manually
load the firearm for each shot fired.
The Department disagrees that ``automatically'' should be defined
using the more extensive definition quoted above. Whereas analysis as
to what constitutes a ``single function of the trigger'' is separate
from whether a firearm shoots automatically, the commenter's proposed
definition merges the two issues. The Department believes that this may
lead to confusion, further complicate the issue, and result in further
questions that require clarification.
c. Concerns Raised by Equating ``Function'' and ``Pull''
Comments Received
One commenter said drafters of the NFA chose the term ``function''
intentionally and that by proposing to equate ``function'' with
``pull,'' a whole new fully automatic non-machinegun market will be
opened because ``fire initiated by voice command, electronic switch,
swipe on a touchscreen or pad, or any conceivable number of interfaces
[does] not requir[e] a pull.'' The commenter suggested that ``single
function of a trigger'' be defined to include but not be limited to a
pull, as that would include bump-stock-type devices without opening a
``can of worms.''
Department Response
The proposed addition to the regulatory definition of machinegun
includes this statement: ``For purposes of this definition, the term
`single function of the trigger' means a `single pull of the trigger.'
'' The Department believes that the commenter is correct--this proposed
definition may lead to confusion. The proposed definition suggests that
only a single pull of the trigger will qualify as a single function.
However, it is clear that a push or other method of initiating the
firing cycle must also be considered a ``single function of the
trigger.'' Machineguns such as the M134 Minigun utilize a button or an
electric switch as the trigger. See 83 FR at 13447 n.8 (explaining that
other methods of trigger activation are analogous to pulling a
trigger).
Therefore, the Department concurs with the commenters and has
modified the proposed definition so that in this final rule the
regulatory text will state that ``single function of the trigger''
means a ``single pull of the trigger'' and analogous motions rather
than a ``single pull of the trigger.'' Although the case law
establishes that a ``single pull'' is a
[[Page 66535]]
``single function,'' those cases were addressing devices that relied on
a single pull of the trigger, as opposed to some other single motion to
activate the trigger. The term ``single function'' is reasonably
interpreted to also include other analogous methods of trigger
activation.
E. ATF Suggested Alternatives
1. General Adequacy of ATF Alternatives
Comments Received
One commenter opposed to the rule suggested that the alternatives
discussed in the NPRM were not in compliance with Office of Management
and Budget (OMB) Circular A-4 guidance, and that ATF failed to consider
available alternatives and the impact on innovation. In addition, the
commenter stated that ATF failed to show a need for the rule and argued
that ATF did not make a good-faith attempt to meet its statutory
mandate to identify, analyze, and rule out feasible alternatives. One
commenter suggested that the analysis of alternatives should include
alternatives provided under OMB Circular A-4, which include tort
liability, criminal statutes, and punishments for violating statutes.
Department Response
OMB Circular A-4 requires the consideration of ``possible
alternatives'' to regulation.\8\ ATF considered possible alternatives
that it could legally employ under the NFA, as many of the suggested
alternatives from commenters--e.g., grandfathering and reimbursement
policies--are not possible given the legal constraints of existing ATF
authority. OMB Circular A-4 stipulates, ``The number and choice of
alternatives selected for detailed analysis is a matter of judgment.
There must be some balance between thoroughness and the practical
limits on [the agency's] analytical capacity.'' \9\ Circular A-4 adds
that ``analyzing all possible combinations is not practical when there
are many options (including possible interaction effects).'' \10\ In
these cases, the agency is to use its judgment to choose reasonable
alternatives for careful consideration. During formulation of the NPRM,
ATF considered various alternatives, including examples provided under
OMB Circular A-4, and deemed them inappropriate. ATF believes that
bump-stock-type devices satisfy the definition of ``machinegun'' under
the NFA, so regulatory action is necessary to implement the NFA and
GCA.
---------------------------------------------------------------------------
\8\ OMB Circular A-4, Regulatory Analysis, at 2 (Sept. 17,
2003), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
\9\ Id. at 7.
\10\ Id. at 11.
---------------------------------------------------------------------------
2. First ATF Alternative--No Regulatory Action
Comments Received
Commenters opposed to the regulation implicitly agreed with the
first alternative listed by ATF, which is for the Department not to
take any action. They argued that attention should be devoted to
improving the background check system, that ATF should concentrate on
enforcing the existing gun laws, or that if there is to be change, that
change should be made by Congress or the States. One commenter argued
ATF failed to properly analyze this alternative.
Department Response
As explained above, Part IV.D.4, the Department has concluded that
the NFA and GCA require regulation of bump-stock-type devices as
machineguns, and that taking no regulatory action is therefore not a
viable alternative to this rule.
3. Second ATF Alternative--Shooting Ranges
Comments Received
Commenters who suggested that bump-stock-type devices be used in a
controlled setting, or be available only at shooting ranges, were
largely in support of the rule rather than viewing it as a complete
alternative to taking no regulatory action.
Department Response
The Department acknowledges comments on the potential use of bump-
stock-type devices in a controlled setting, such as a shooting range.
As stated above, the Department believes that such items satisfy the
statutory definition of ``machinegun,'' and therefore it is
promulgating this rule to clarify the definition. ATF has previously
held that the on-premises rental of NFA firearms is permitted. However,
whereas machineguns that are currently available for rental at shooting
ranges are lawfully registered in the NFRTR if they may be lawfully
possessed under 18 U.S.C. 922(o)(2)(B), bump-stock-type devices cannot
be registered because none were in existence when section 922(o) was
enacted in 1986.
4. Third ATF Alternative--Use Other Means
Comments Received
Many commenters opposed to the rulemaking pointed out that bump
firing can be accomplished by using other everyday items such as belt
loops or rubber bands. See Part IV.10.b. No commenter said that solely
using rubber bands or other items would be a satisfactory alternative
if the proposed rule went into effect. Rather, these commenters made
the point that if bump firing is possible with or without bump-stock-
type devices, then the Department would be obliged to also prohibit
possession of rubber bands and belt loops under the NFA.
Department Response
The Department has detailed in the NPRM and this rule the
distinction between bump firing with a bump-stock-type device and using
belt loops or rubber bands. See Part IV.10.b. Although a shooter using
a belt loop, string, or other manual method utilizes recoil energy to
bump fire, the shooter is responsible for constraining the firearm,
maintaining the correct finger pressure, and regulating the force
necessary to fire continuously. This is clearly distinguishable from a
bump-stock-type device, as ATF has explained that such a device
functions ``as a self-acting and self-regulating force that channels
the firearm's recoil energy in a continuous back-and-forth cycle that
allows the shooter to attain continuous firing after a single pull of
the trigger so long as the trigger finger remains stationary on the
device's extension ledge.'' 83 FR at 13443. Based on the clear
differences between bump-stock-type devices and manual means of bump
firing, the Department disagrees with the commenters that manual means
of bump firing are factually or technically equivalent to bump-stock-
type devices.
F. Other Alternatives
1. Allow Registration or Grandfathering of Bump-Stock-Type Devices
Under NFA
Comments Received
Several hundred commenters argued that ATF should announce an
amnesty period, allowing time for current owners of bump-stock-type
devices to register them as NFA firearms in the NFRTR. These commenters
argued that pursuant to section 207(d) of the GCA, the Attorney General
has power to establish amnesty periods for up to 90 days. Further, they
argued there is precedent for an amnesty period, pointing to the seven-
year amnesty/registration period that was allowed for the Striker-12/
Streetsweeper and USAS-12 shotguns. See ATF Rulings 94-1, 94-2. Doing
so, they argued, would save the Government from having to compensate
[[Page 66536]]
current owners of bump-stock-type devices and also even generate money
for the Government, as individuals would be required to pay a $200 tax
on the devices. See 26 U.S.C. 5821.
Department Response
The Department disagrees that an amnesty period is possible in this
scenario. While in 1968 Congress left open the possibility of future
amnesty registration of firearms subject to the NFA, ATF has long held
that it eliminated any possible amnesty for machineguns in 1986.
Following passage of 18 U.S.C. 922(o), ATF advised the industry and the
public that amnesty registration of machineguns was not legally
permissible. For example, in 1996 and 1997, ATF advised an industry
member that:
18 U.S.C. 922(o) would preclude the registration of machineguns
during an amnesty period. Section 922(o) prohibits possession of
machineguns which were not lawfully possessed prior to its effective
date of May 19, 1986 . . . . Since 922(o) [was enacted after the
amnesty provision of the NFA], its provisions would prevail over any
earlier enactment in conflict. This means that any future amnesty
period could not permit the lawful possession and registration of
machineguns prohibited by section 922(o).
Letter for C. Michael Shyne from ATF's National Firearms Act Branch
Chief (March 10, 1997). Section 922(o) does not ban the private
possession and transfer of all machineguns because it specifically
excludes ``any lawful transfer or lawful possession of a machinegun
that was lawfully possessed before the date [section 922(o)] takes
effect.'' 18 U.S.C. 922(o)(2)(B). The intent of the statute was to
limit transactions in post-1986 machineguns. See United States v.
Ferguson, 788 F. Supp. 580, 581 (D.D.C. 1992) (``Under section
922(o)(2)(B), certain machineguns, namely, those that were lawfully
possessed before enactment of the statute in 1986, may be legally
possessed and transferred even today.''); see also United States v.
O'Mara, 827 F. Supp. 1468, 1470 n.4 (C.D. Cal. 1993) (citing Ferguson).
Congress's goal was to ban the transfer and possession of such weapons
outright. United States v. Hunter, 843 F. Supp. 235, 247-48 (E.D. Mich.
1994). The legislative history supports this proposition. When asked
whether an amnesty period could ``be administratively declared by the
Secretary of the Treasury by the enactment of this bill,'' Senator
Kennedy responded that ``[t]here is nothing in the bill that gives such
an authority, and there is clearly no valid law enforcement goal to be
achieved by such open-ended amnesty.'' See id. at 248.
Some commenters pointed to ATF Rulings 94-1 and 94-2 as precedent
for an amnesty period; however, section 922(o) applies only to
machineguns, and there was no similar restriction on the destructive
devices at issue in ATF Rulings 94-1 and 94-2. Therefore, these rulings
cannot serve as precedent in the present case.
2. Licensing and Background Checks
Comments Received
Numerous commenters suggested other methods for how bump-stock-type
devices should be regulated, including methods involving background
checks. Some commenters broadly suggested that these devices should be
sold like firearms under the GCA, meaning that the purchaser would
undergo a background check when acquiring one from a retailer. One
commenter suggested a new ``2.5 firearms class'' that would cover
``grey area'' guns and accessories, like bump-stock-type devices.
Possessors of items falling under the ``2.5 firearms class'' would
undergo background checks and, as with State-issued concealed-carry
permits, local law enforcement would be able to cancel privileges if
necessary. Other commenters suggested that bump-stock-type devices
should not be available to the public unless the possessor is licensed,
passes a background check, or provides a valid reason for needing a
bump-stock-type device. Another commenter suggested bump-stock-type
devices should be regulated like ``any other weapon'' under the NFA, 26
U.S.C. 5845(e), so that current owners could register them by paying a
$5 fee, allowing a waiting period to elapse, and establishing a paper
trail of ownership.
Department Response
The Department acknowledges these suggested alternatives but does
not have the authority to add a new class of firearms to the statutory
scheme or impose licensing requirements to acquire a firearm. Such
changes would require legislation. Further, the definition of ``any
other weapon'' in the NFA does not apply to bump-stock-type devices.
Because bump-stock-type devices are properly classified as
``machineguns'' under the NFA and GCA, the Department believes that ATF
must regulate them as such, and that the recommended alternatives are
not possible unless Congress amends the NFA and GCA.
3. Remuneration
Comments Received
Over 1,000 commenters opposed to the rule argued that compensation
should be provided to owners of bump-stock-type devices. Several
supporters of the rule also suggested there should be a buy-back
program in order to reduce the number of bump-stock-type devices. One
commenter more specifically stated that manufacturers or retailers
should be required to buy back all such devices and make full refunds
to all purchasers. Another supporter suggested a one-time tax credit to
owners who surrender their bump-stock-type devices or provide proof of
destruction.
Department Response
The Department acknowledges comments on compensation for current
owners of bump-stock-type devices. While ATF has the authority to
implement the NFA and GCA, the Department does not have the necessary
Federal appropriations to implement a buy-back program or offer
monetary compensation. To implement a buy-back program or provide a tax
credit would require congressional action.
4. Medical Exemption
Comments Received
Some commenters suggested that Department amend the proposed rule
so it would provide an exemption for ``medical necessity,'' thereby
allowing certain individuals, such as those with nerve damage or one
functional arm, to possess bump-stock-type devices. Similarly,
commenters suggested bump-stock-type devices should only be available
for people who are physically unable to pull a trigger for hunting or
target practice.
Department Response
The Department does not have authority to create a medical
exemption for the possession of machineguns. Pursuant to the NFA and
GCA, for private possession of machineguns to be lawful, they must have
been lawfully possessed before the effective date of 18 U.S.C. 922(o).
5. Allow Removal of Trigger Ledge
Comments Received
One commenter suggested that ``ATF could find that bump-stock-type
devices with the ledge/rest removed are not affected by any additional
regulation.'' The commenter argued that this would make the proposed
rule ``logically consistent with the notion that operators may `bump
fire' with or without a
[[Page 66537]]
bump-stock-type device, as long as they do not utilize a device
allowing a fixed trigger finger.''
Department Response
The Department does not believe that removing the trigger ledge is
sufficient to affect a bump-stock-type device's classification as a
machinegun. While the trigger ledge makes it easier to utilize the
device, removing the ledge does nothing to prevent the directing of the
``recoil energy of the discharged rounds into the space created by the
sliding stock (approximately 1.5 inches) in constrained linear rearward
and forward paths.'' 83 FR at 13443. Therefore, even without the
trigger ledge, the bump-stock-type device will operate as designed if
the shooter simply holds his or her finger in place. As such the bump-
stock-type device remains a ``machinegun'' under the NFA and GCA.
6. Miscellaneous Alternatives To Regulate Bump-Stock-Type Devices
Comments Received
Other miscellaneous comments included suggesting a ban only on
future production and commercial sale of such items; enacting a quota
on the number of devices that can be produced or possessed; enacting a
Pigouvian tax, which is a tax imposed on a good that is calculated to
reduce market quantity (and increase market price) in order to achieve
the socially optimal level of the good; deferring action until Congress
takes action; leaving the matter for State legislative action;
improving security at mass-attended events; and improving law
enforcement capabilities.
Department Response
The Department acknowledges comments on alternative suggestions for
the regulation of bump-stock-type devices, but it does not have
authority to implement many of the suggested alternatives. The
Department does not have the authority to restrict only the future
manufacture or sale of bump-stock-type devices, nor does it have the
authority to remove the general prohibition on the transfer and
possession of machineguns that were not lawfully possessed on the
effective date of 18 U.S.C. 922(o). In addition, the Department lacks
the authority to enact an excise tax on bump-stock-type devices.
As mentioned above, the Department does not agree with commenters
that any change needs to be enacted by Congress or should be left to
State legislatures. Congress passed both the NFA and GCA, delegating
enforcement authority to the Attorney General. Accordingly, the
Attorney General has the authority to promulgate regulations necessary
to enforce the provisions of the NFA and GCA, and the Department
determined that notice-and-comment rulemaking was the appropriate
avenue to clarify the definition of ``machinegun.'' In the interest of
public safety and in light of the statutory definition of
``machinegun,'' the Department has determined that Federal regulation
of bump-stock-type devices is necessary. However, this action does not
prevent Congress from taking action on bump-stock-type devices in the
future.
The Department acknowledges comments on improving security at mass-
attended events and agrees that it is important to improve law
enforcement capabilities. The Department actively works with State and
local law enforcement agencies to provide security at mass-attended
events, as well as training and equipment for their departments.
G. Proposed Rule's Statutory and Executive Order Review
Comments Received
A few commenters suggested that ATF failed to comply with Executive
Orders 12866, 13563, and 13771, including failing to identify and
repeal two regulations for every new regulation issued. Commenters
argued that ATF did not quantify the benefits of the rule, and it did
not explain why those benefits were unquantifiable as required by OMB
Circular A-4. Commenters stated that ATF did not identify the need for
the proposed rule, in that ATF cited no evidence to support that the
Las Vegas shooter used a bump-stock-type device. One commenter asked
that ATF demonstrate how the cost-benefit analysis shows that the
proposed rule is in the interests of gun owners, business owners, and
the Federal Government. The commenter further suggested that ATF did
not provide any citations or peer-reviewed research as evidence of the
need for Federal regulatory action. Lastly, some commenters questioned
how ATF determined the negative externalities that were presented in
the NPRM.
Department Response
Executive Order 12866 and OMB Circular A-4 acknowledge that
regulatory agencies should comply with them wherever possible or
feasible. The Department interprets and adheres to the existing
Executive Orders and OMB Circular A-4 to the extent that it is
possible, using the best available information, and to the extent
quantified information was available. Alternatively, wherever
quantifiable means were not available, the Department considered
qualitative costs, benefits, concerns, and justifications.
This rule is a significant regulatory action that clarifies the
statutory definition of machinegun. By clarifying that bump-stock-type
devices are machineguns subject to the restrictions of the NFA and GCA,
the rule in effect removes those devices from the civilian marketplace.
This final rule is an Executive Order 13771 regulatory action. See OMB,
Guidance Implementing Executive Order 13771, Titled ``Reducing
Regulation and Controlling Regulatory Costs'' (Apr. 55, 2017).
As for the need for Federal regulation, agencies are allowed to
consider public safety as a compelling need for a Federal rulemaking.
Executive Order 12866 expressly recognizes as appropriate exercises of
agency rulemaking authority that ``are made necessary by compelling
public need, such as material failures of private markets to protect or
improve the health and safety of the public, the environment, or the
well-being of the American people.'' 58 FR 51735 (Oct. 4, 1993). As
explained in the NPRM, the purpose of this rule is to amend ATF
regulations to clarify that bump-stock-type devices are ``machineguns''
as defined by the NFA and GCA, with a desired outcome of increasing
public safety. In accordance with OMB Circular A-4, the Department has
provided information wherever possible regarding the costs, benefits,
and justification of this rule.
As further requested by one commenter, this rule not only considers
the implications of this rule on gun owners in the United States,
business owners, and the Federal Government, but also considers the
risk of criminal use of bump-stock-type devices and the general safety
of the public to justify the issuance of this final rule.
H. Affected Population
Comments Received
There were a number of commenters who stated this rule will affect
between 200,000 and 500,000 owners. Some commenters suggested that the
estimated number of bump-stock-type devices should be higher,
potentially over a million, than the estimated amount stated in the
NPRM. Some commenters indicated that this would incorporate homemade
devices, 3D-printed devices, or other devices made by personal means.
[[Page 66538]]
Department Response
In the NPRM, ATF did not estimate the number of owners. 83 FR at
13449. The 280,000-520,000 range in the Executive Order 12866 section
of the NPRM is the estimated number of bump-stock-type devices in
circulation, not the number of owners. While the Department does not
know the total number of bump-stock-type devices currently extant, nor
the number of owners, the Department's high estimate of 520,000 is
still the primary estimate only for devices sold on the market. While
it may be possible to make homemade devices, the Department cannot
calculate the number of such devices or the likelihood of these devices
circulating among the public. The Department is using the best
available information, and there is no known information that would
allow ATF to estimate such a number, much less achieve the level of
accuracy that the public is requesting. Therefore, the estimates
provided continue to be based upon the best available information.
I. Costs and Benefits
1. Costs to Purchasers
Comments Received
One commenter stated that some models of bump-stock-type devices
never sold for less than $425 plus taxes. Another commenter stated that
the Department's regulatory analysis did not account for the individual
cost in purchasing bump-stock-type devices, only manufacturers' and
retailers' expenses. Other commenters suggested that the analysis did
not account for taxes. One commenter suggested that the costs should
incorporate the cost of purchasing a pre-1986 machinegun. One commenter
suggested that many owners have bump-stock-type devices as the only
stocks that they own and that purchasing a standard stock will need to
be incorporated into the analysis.
Some commenters stated that the cost analysis does not include
compensation for bump-stock-type devices and that the cost could be
more than $50 trillion. Other commenters indicated that the rule did
not account for lost lives, treatment costs, decreased tourism, and
costs of criminal investigations. Other commenters argued that ATF
failed to consider other costs, such as loss of faith in ATF by the
regulated industry and resentment for not being reimbursed for bump-
stock-type devices.
Department Response
The Department concurs that certain models sold at the $425.95 rate
(a rate also included in ATF's range of costs published in the NPRM),
representing the high end of the range of rates. 83 FR at 13451.
However, bump-stock-type devices also sold for as low as $100. Id. In
order to account for the full range of prices, the Department used the
average of the full range of prices; therefore, the average price of
$301 was used in the NPRM to account for the full range of market
prices for these bump-stock-type devices. Id. As for the payment of
taxes, the Department concurs that an unknown number of bump-stock-
type-devices were sold, and individuals paid local taxes on them at
time of purchase. For the purposes of this final rule, the Department
maintains the average price used in the NPRM but incorporates the
average cost of combined State and local taxes. For the purposes of
this final rule, the Department estimates that the national average of
taxes is 6.47% and attributed this tax rate to the price of all bump-
stock-type devices that were sold on the market.\11\
---------------------------------------------------------------------------
\11\ See Jared Walczak & Scott Drenkard, State and Local Tax
Rates in 2017, Tax Found. (Jan. 31, 2017), https://taxfoundation.org/state-and-local-sales-tax-rates-in-2017/.
---------------------------------------------------------------------------
The Department disagrees that the regulatory analysis did not
account for the individual cost in purchasing bump-stock-type devices.
The market price of bump-stock-type devices sold to the public
represents the public price of these devices, which also accounts for
the manufacturer and retail prices and does not double-count costs.
While it may be possible for the public to purchase a pre-1986
machinegun, these amounts are not used to purchase bump-stock-type
devices, so the market prices for these pre-1986 machineguns are not
considered for purposes of this rule.
The Department reached out to the commenter who discussed the
population of gun owners who will need to replace their bump-stock-type
devices with standard stocks. The commenter was unable to provide a
source establishing the existence of such gun owners and only
speculated that this was a possibility. Having determined that this was
speculation, the Department declined to incorporate this information
into the analysis.
The Department does not propose compensation for bump-stock-type
devices, so these costs were not included in the rule. See Part
IV.D.1.b for a discussion of the Fifth Amendment's Takings Clause.
Further, costs associated with victims, criminal investigations, loss
of tourism, loss of faith in ATF by the regulated industry, and
resentment for not being reimbursed for bump-stock-type devices are all
indirect or unquantifiable costs of the rule and are not considered in
the cost-benefit analysis.
2. Costs to Manufacturers, Employees, and Communities
Comments Received
Commenters suggested that this rule will cost manufacturers,
employees, and families of manufacturers their livelihood. In
particular, one commenter suggested that three additional manufacturers
would have entered or re-entered the market after the lapse of the
patent for the main manufacturer of bump-stock-type devices.
Additionally, public comments suggested that the Department overlooked
the capital expenses required to start a company.
Department Response
The Department has considered the effect that this rule will have
on these manufacturers, employees, and families and acknowledges that
they will no longer be able to manufacture bump-stock-type devices. The
Department acknowledges that there will be a potential loss of wages
from employees losing jobs from loss of manufacturing; however, the
extent to which they are unable to find replacement jobs is
speculative. The Department considered the capital expenses for
manufacturers, including patents and equipment to start production.
However, in light of the Las Vegas shooting and the estimated time it
would have taken for the patents to expire, the Department has
determined that there could be potential crowding of additional
manufacturers and saturation of the market for bump-stock-type devices.
Therefore, the viability of these businesses is speculative and the
capital expenses that they incurred are a sunk cost for those who put
in the expense. While the Department does not include capital expenses
for manufacturing in the economic analysis, the Department had already
considered the overall potential for return on investment for any
manufacturers who would have remained in the market from the existing
estimate of foregone production. Accounting for capital expenses would
be double counting of expenditures. Therefore, the economic analysis
for this portion remains the same.
3. Costs of Litigation
Comments Received
Commenters suggested that the Department did not account for the
cost of litigation regarding the rule.
[[Page 66539]]
Department Response
Litigation costs are not a direct cost of the rule because such
costs do not result from compliance with the rule. Additionally, any
estimate of litigation expenses would be highly speculative and would
not inform the Department's decision regarding the implementation of
this final rule. However, the Department acknowledges that to the
extent parties choose to enter into litigation regarding this final
rule, there are indirect costs associated with that litigation.
4. Government Costs
Comments Received
Commenters suggested that this rule would cost the Government
approximately $297 million, including the disposal cost of the bump-
stock-type devices. Other commenters indicated that confiscation costs
were not included in the cost of the rule. One commenter provided
estimates on the cost to house bump-stock-type device owners in prison
as felons, particularly if a large number of owners opt not to destroy
such devices. Lastly, one commenter suggested that ATF consider
foregone sales taxes associated with ammunition used to fire bump-
stock-type devices.
Department Response
In the NPRM, the Department estimated that the total cost of the
rule for the general public (e.g., owners and manufacturers of bump-
stock-type devices) would be about $326.2 million over a 10-year
period, not that the rule would cost the Federal Government that
amount. 83 FR at 13454. The Department's estimate that Government costs
are de minimis still stands for this final rule because the costs
identified by these commenters are not Government expenditures.
Further, costs associated with administering the option of current
possessors of bump-stock-type devices abandoning their devices at their
local ATF offices will be de minimis. The Department also disagrees
that this rule will turn owners of bump-stock-type devices into felons.
This final rule provides an effective date that allows ample time for
current owners to destroy or abandon such devices. To the extent that
owners timely destroy or abandon these bump-stock-type devices, they
will not be in violation of the law or incarcerated as a result.
However, if prohibited bump-stock-type devices are possessed after the
effective date of the final rule, the person in possession of the bump-
stock-type device will be in violation of Federal law.
While the usage of bump-stock-type devices may boost ammunition
sales, the Department did not consider the loss of tax revenue
collected from additional ammunition sales because they are speculative
and are not a direct cost of the rule. Additionally, any estimate of
tax revenue generated would not inform the Department's decision
regarding the implementation of this final rule.
5. Benefits
Comments Received
Commenters stated that there are no quantifiable benefits to
justify the costs of this rule, nor will it prevent criminal use of
firearms. One commenter also stated that ATF did not explain why the
benefits were unquantifiable as required by OMB Circular A-4. Some
commenters suggested that ATF is required ``by law'' to quantify and
monetize benefits. Commenters stated that the benefits do not outweigh
the costs and ATF failed to conduct any analysis of the benefits of the
rule and did not quantify the benefits. Further, commenters argued that
ATF did not substantiate its assertion that bump-stock-type devices
will be used more frequently in future crimes if this rule is not
promulgated.
One commenter argued that the Department needed to separate the
effects of using a bump-stock-type device from other factors that might
have incremental effects on criminal activity, such as crowd density
and angle of fire. The commenter stated that benefits must be reduced
accordingly and must take into account a reduction in violence instead
of elimination of the threat of violence from bump-stock-type devices.
Many commenters argued that ATF cannot rely on the Las Vegas shooting
as the measure of benefits for this rule.
Commenters discussed means of monetizing shooting incidents or
comparing the death rates related to other items like motor vehicles,
opiates, knives, and rocks. Other commenters in support of the rule
suggested that ATF incorporate the financial and societal benefits of
this rule.
Department Response
The Department declines to quantify benefits because OMB Circular
A-4 requires quantifying and monetizing benefits only ``if possible.''
OMB Circular A-4 at 45. One commenter provided descriptions on how to
determine quantitative benefits of this rule and specifics on using a
break-even analysis; however, due to limitations on data, the
Department has considered the qualitative benefits for this rulemaking.
The Department did not account for the cost of deaths and injuries
unrelated to bump-stock-type devices, as these are unrelated to this
rule. This rule does not prohibit the use of firearms that could be
used in shootings, or other items or devices. Furthermore, it is
unclear how risk associated with other devices such as motor vehicles
should influence ATF's decision-making. ATF has provided a cost-benefit
analysis in both the NPRM and this final rule that fulfills the
requirements of Executive Order 12866, OMB Circular A-4, the Regulatory
Flexibility Act (RFA), and the Unfunded Mandates Reform Act.
J. Regulatory Flexibility Act
Comments Received
Some commenters suggested that the RFA requires examination of the
future impact of the rule on innovation and of making a lawful product
into an unlawful one.
Department Response
The Department disagrees that the RFA requires an examination of
those specific factors. The RFA ``requires agencies to consider the
impact of their regulatory proposals on small entities, analyze
effective alternatives that minimize small entity impacts, and make
their analyses available for public comment.'' \12\ The RFA ``does not
seek preferential treatment for small entities, nor does it require
agencies to adopt regulations that impose the least burden on them, or
mandate exemptions for them. Rather, it requires agencies to examine
public policy issues using an analytical process that identifies
barriers to small business competitiveness and seeks a level playing
field for small entities, not an unfair advantage.'' \13\
---------------------------------------------------------------------------
\12\ U.S. Small Business Administration, Office of Advocacy, A
Guide for Government Agencies: How to Comply with the Regulatory
Flexibility Act, at 1 (Aug. 2017), https://www.sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf.
\13\ Id.
---------------------------------------------------------------------------
The Department found that this rule significantly impacts small
businesses related to bump-stock-type devices. The Department
interprets the RFA to mean that small businesses should not be
prevented from using innovations to compete with other businesses, and
to account for small businesses when determining alternative approaches
with respect to small businesses in the field.\14\ At this time, there
are only small businesses that manufacture bump-stock-type devices;
therefore, no regulatory alternative was considered to
[[Page 66540]]
alleviate the regulatory burden on small businesses with respect to
competition with businesses that are not small.
---------------------------------------------------------------------------
\14\ Id.
---------------------------------------------------------------------------
K. Miscellaneous Comments
Commenters both in support of and in opposition to the proposed
rule raised additional miscellaneous issues. These are discussed below.
1. Improve Background Checks
Comments Received
Separate from the suggested alternative, discussed above, that
bump-stock-type devices be sold like firearms, many commenters voiced
their general support for various enhancements to the existing Federal
background check requirement. Commenters said the ``gun show loophole''
should be closed, and many called for universal background checks. At
least one commenter suggested there should be psychiatric evaluations
for firearms purchasers. Commenters making these points were largely
supporters of the proposed rule, but at least a few commenters opposed
to the rule also supported background checks. One opposed commenter
said better communication between the relevant government agencies and
tighter background checks were needed. A few opposed commenters
suggested it would be more effective to have a more in-depth background
check along with a minimum age of 21 or 25 and a five-day waiting
period because they observed that young, alienated people have
frequently been the perpetrators of mass shootings.
Department Response
The Department acknowledges comments on enhanced or expanded
background checks, an increase in minimum age requirements, and waiting
periods. The Department is aware of the importance of having accurate
and complete information available to the NICS, which is managed by the
FBI; further, the Department works with Federal and State agencies to
ensure that necessary information is submitted to the system. The
Department does not, however, have the authority to increase the
minimum-age requirement or enact a mandatory waiting period to purchase
a firearm.
2. Increase Criminal Penalties
Comments Received
Commenters on both sides of the issue suggested that there be more
stringent criminal penalties for firearms offenses. Some commenters in
support of the rule said there should be severe penalties for
possessing a bump-stock-type device, or for manufacturing one through
digital printing, or simply for anyone who manufactures or distributes
bump-stock-type devices. Another commenter supporting the rule said
that bump-stock-type devices should be prohibited from all public
spaces where there is the potential for mass murder, but did not object
to persons who wanted to use bump-stock-type devices on their own
property or on hunting or shooting grounds. Some commenters opined that
generally there should be more severe penalties for anyone using guns
illegally or irresponsibly. A few commenters opposed to the rule
suggested that in lieu of a rule prohibiting possession, a more
effective deterrent would be severe penalties for the manufacture and
sale of bump-stock-type devices, and that there should instead be swift
and severe punishment, such as the death penalty for persons who commit
or attempt to commit a mass shooting, or, more generally, that the law
should be written to include mandated, nondiscretionary sentences.
Department Response
The Department does not have the authority to increase criminal
penalties. Only Congress can increase, amend, or add new criminal
penalties for Federal crimes.
3. Repeal the NFA and Hughes Amendment, and Remove Silencers
Comments Received
Numerous commenters opposed to the regulation viewed the proposed
rule as an infringement on their rights. As part of their opposition to
the proposed rule, some commented that the NFA itself is inherently
unconstitutional and declared that it should be repealed. Commenters
similarly questioned the constitutionality of the Hughes Amendment (18
U.S.C. 922(o)), which was enacted as a part of the Firearms Owners'
Protection Act in 1986 and prohibits possession by individuals of any
post-1986 machinegun. These commenters declared it should be repealed.
A majority of these commenters simply objected to any further firearms
restrictions and insisted these laws be repealed in order to restore
freedoms they believe to have been steadily eroded by the Government.
Some commenters noted that bump-stock-type devices evolved as a
workaround to the NFA and Hughes Amendment restrictions so that
shooters could have an affordable alternative to shoot in a manner that
is close to a machinegun. Some opined that that a rule prohibiting
bump-stock-type devices would be acceptable so long as these other
restrictions are lifted to give individuals affordable access to
machineguns. A few commenters also added that silencers should be
removed from the NFA's coverage or be made available like any other
firearm device, with at least one commenter stating that the Hearing
Protection Act or Sportsmen's Heritage and Recreational Enhancement
(SHARE) Act should be passed.
Department Response
The Department does not have the authority to repeal or amend
provisions of the NFA, such as by removing silencers from the NFA. The
NFA is a statute, which only Congress may repeal or alter. ATF does not
have the authority to remove the general prohibition on the transfer
and possession of machineguns that were not lawfully possessed before
the date 18 U.S.C. 922(o) became effective, nor does it have the
authority to permit nongovernmental entities to possess machineguns or
other NFA firearms that are not lawfully registered in the NFRTR. Only
Congress can alter these provisions. However, as stated, ATF does have
the authority to implement the existing statute and has utilized the
rulemaking process to do so.
4. Focus on Mental Health and Other Gun Control Measures
Comments Received
Supporters argued that in addition to finalizing the rule, more
attention needs to be paid to improving mental health care. Generally,
these commenters suggested there should be more spending on the mental
health system so as to increase access.
Numerous commenters in support of the rule also listed several
other proposals pertaining to gun safety or gun control measures that
should be implemented. Almost 5,000 commenters expressed that ``other
conversion devices'' along with bump-stock-type devices should be
banned. And more than 1,500 commenters also called for a ban on
``assault weapons'' or firearms altogether, while several others
specifically stated that there should be restrictions on high-capacity
magazines. Some commenters provided many other suggestions, including a
higher age limit to acquire a firearm, written tests for firearm
access, mandatory gun safety classes, proper storage inspections, a
nationwide gun registry, licensure and gun ownership insurance
requirements, ammunition limits, and protocols for removing firearms
from domestic abusers and the mentally ill through protective orders.
[[Page 66541]]
Department Response
The Department acknowledges the importance of improving mental
health care. However, mental health treatment does not fall under the
Department's authority.
Although this rulemaking specifically addresses bump-stock-type
devices, any item that meets the definition of a ``machinegun'' will be
regulated as such and cannot be possessed unless legally registered.
But only Congress can add additional requirements that must be met in
order to purchase a firearm.
The Department does not have the authority to remove firearms from
persons who are not prohibited from receiving or possessing them under
Federal law. Only Congress can amend or add new categories of
prohibited persons.
L. Comments on the Rulemaking Process
1. Availability of Supporting Documentation
Comments Received
A handful of commenters argued that the procedures of the APA were
not properly followed, in part because ATF did not include any
supporting documentation on how it formulated its decision to regulate
bump-stock-type devices. In particular, commenters stated that although
they submitted Freedom of Information Act requests, ATF did not make
available its own prior letter determinations that classified various
bump-stock-type devices as firearm parts not subject to the NFA or GCA,
nor did ATF make available any evidence suggesting that there have been
other instances of criminal use of a bump-stock-type device. This kind
of documentation, they argued, would provide the basis upon which the
agency justified its proposed rule and therefore should be made public
in order to allow for meaningful comment under the APA.
Department Response
Contrary to the commenters' arguments, the Department believes that
it provided all of the background information necessary to allow
meaningful public participation. The APA, 5 U.S.C. 553(b), provides
that ``[g]eneral notice of proposed rule making shall be published in
the Federal Register,'' and that this notice shall include, inter alia,
``either the terms or substance of the proposed rule or a description
of the subjects and issues involved.'' Federal courts have recognized
that they must determine whether regulations are consistent with
statutes, and ``whether the process used in arriving at those
regulations afforded those affected . . . their procedural due. More
specifically, in the informal rulemaking context . . . , this inquiry
asks whether the agency gave `interested persons an opportunity to
participate in the rule making through submission of written (or other)
data' and whether it `incorporate(d) in the rule adopted a concise
general statement of their basis and purpose.' '' Weyerhaeuser Co. v.
Costle, 590 F.2d 1011, 1024 (D.C. Cir. 1978) (quoting 5 U.S.C. 553). A
``notice of proposed rulemaking must provide sufficient factual detail
and rationale for the rule to permit interested parties to comment
meaningfully.'' Honeywell Int'l, Inc. v. EPA, 372 F.3d 441, 445 (D.C.
Cir. 2004) (internal quotation marks omitted).
The Department agrees with commenters that interested parties will
not be able to make meaningful comments upon an agency's proposed
regulation if the notice ``fails to provide an accurate picture'' of
the agency's reasoning. Conn. Light & Power Co. v. NRC, 673 F.2d 525,
528 (D.C. Cir. 1982). Commenters fail, however, to recognize that the
text of the NPRM set out the facts necessary to ``provide an accurate
picture'' of the Department's reasoning. In the NPRM, the Department
articulated the reasons for its proposed change in the classification
of bump-stock-type devices, provided detailed descriptions and
explanations of its prior classifications, and offered thorough
explanations of its past and current analysis. Accordingly, the
Department believes that it provided notice to the public, in
sufficient factual detail, to permit interested parties to comment
meaningfully on the proposed rule.
2. Previous ``Lack of Candor''
Comments Received
One commenter also included an extensive description of ATF's
``prior lack of candor,'' including instances where ATF purportedly (1)
committed ``institutional perjury'' before the courts in the context of
criminal prosecutions and supporting probable-cause showings for search
warrants; (2) committed deception and delayed responding with respect
to congressional inquiries regarding NFRTR inaccuracies as well the
``Fast and Furious'' investigation; and (3) misled the public about the
accuracy of the NFRTR. According to the commenter, these episodes
highlight a pattern of procedural irregularities that should draw
further scrutiny of this rulemaking.
Department Response
These comments are beyond the scope of this rulemaking, but the
Department notes that ATF has committed available resources to develop
the NPRM and respond to comments as part of the rulemaking process. In
developing this rulemaking and responding to comments, ATF has followed
all established procedures and complied with all relevant policies and
requirements.
3. 90-Day Public Comment Period
Comments Received
One commenter asserted that the agency failed to provide the
statutorily mandated 90-day public comment period. The commenter relied
on an online article that ``detail[ed] the trials and tribulations of
trying to find the appropriate docket,'' given that some commenters
indicated that they encountered a ``Comment Period Closed''
notification on the FederalRegister.gov website when the NPRM was
published on March 29, 2018. The author of the online article said that
he submitted an inquiry to ATF asking why the comment period appeared
closed when it should have been open through June 27, 2018, and why the
website, at various times, depicted different numbers for the amount of
comments ATF received. The author's description of events concluded by
noting that he received a response from ATF with a specified weblink to
Regulations.gov where he could submit a comment but that none of his
comments submitted were visible on the website. Relying primarily on
this online account, the commenter asserts that ATF did not disclose
this weblink to the public and that numerous people believed that the
comment period was closed from the very beginning of the comment period
and were therefore precluded from submitting comments. The commenter
therefore believes that the comment period should be extended because
ATF did not permit the statutorily mandated 90-day comment period.
Department Response
The Department acknowledges that upon publication of the NPRM on
March 29, 2018, there was some confusion within the first 24 to 48
hours about submitting comments through the Federal eRulemaking Portal
(www.Regulations.gov), which is managed and maintained by a third-party
host. ATF was in touch with the managers of the Federal eRulemaking
portal, and relayed an explanation of these technical issues to the
author of
[[Page 66542]]
the online article in two subsequent emails dated April 2 and April 3,
2018. However, there is no evidence that the proposed rule was not
available for public comment for the 90-day comment period. On the
contrary, ATF received numerous comments from the very beginning of the
comment period.
ATF explained to the author of the article that on March 29, 2018,
when the comment period opened for the NPRM, the link for submitting
comments to the NPRM had been inadvertently connected to the
Regulations.gov Docket ID number 2018-0001-0001, which had been used by
the Regulations.gov website for the ANPRM comment period, December 26,
2017, through January 25, 2018. On March 29, 2018, the same day the
proposed rule was published in the Federal Register, individuals were
able to and did submit comments for the NPRM even though it was linked
to the Docket ID used for the ANPRM. Realizing that the link for the
NPRM should not have been listed under the ANPRM Docket ID, a new
Docket ID number (2018-0002-0001) was created for the NPRM. These
Docket ID numbers are created by the third-party managers of
Regulations.gov for purposes of the website. ATF uses its own docket
number, 2017R-22, as seen in the text of the ANPRM and NPRM.
Once the third-party managers of Regulations.gov created a new
Docket ID number for the NPRM with a ``Comment Now'' feature, they
eliminated the ability to submit NPRM comments under the old ANPRM
Docket ID. The Department acknowledges that there was some confusion
because there was a brief period on March 29, 2018, during which the
ANPRM link (2018-0001-0001) was prominently situated on the homepage of
the Regulations.gov website even though that link was no longer able to
accept comments for the NPRM. Despite the brief prominence of the old
ANPRM Docket ID on the Regulations.gov website, the public had the
ability to submit comments through the Federal eRulemaking Portal for
the NPRM at all times, as a simple search for ``bump stock'' in the
main search bar on Regulations.gov during this time would have
displayed the link for the new NPRM Docket ID, which was active and
accepting comments. Moreover, some individuals confused about how to
comment on Regulations.gov called ATF's Office of Regulatory Affairs,
which was able to assist them.
ATF also responded to the author's inquiry regarding the
discrepancy in the numbers showing the amount of comments received.
Over the weekend of March 31, 2018, the third-party managers of
Regulations.gov transferred all comments submitted for the NPRM through
the ANPRM Docket ID to the new NPRM Docket ID. ATF was informed that
the number of comments displayed on Regulations.gov updated only once a
day and therefore would harmonize over the next few days as ongoing
system maintenance occurred. Ultimately, the website depicting the
amount of comments received reflects all comments received since March
29, 2018, the beginning of the comment period.
To answer the author's inquiry as to why his comments submitted
were not visible on Regulations.gov, ATF reminded the online author
that Part VII.C of the NPRM, which described the three methods for
submitting public comments, informed the public that comments submitted
through Regulations.gov ``will be posted within a few days of being
submitted. However, if large volumes of comments are being processed
simultaneously, . . . comment[s] may not be viewable for up to several
weeks.'' Since the beginning of the comment period, ATF received a high
volume of comments and, as forewarned, there was a delay between the
time comments were submitted and when they became viewable on the
website, assuming the comment met the posting guidelines stated in Part
VII.A of the NPRM. By April 3, 2018, two of the online author's
comments were visible on Regulations.gov, and the agency provided him
with direct weblinks to his comments.
Accordingly, the Department disagrees that the agency failed to
provide the statutorily mandated 90-day public comment period.
Moreover, the Department notes that the Federal eRulemaking Portal is
one of the three methods available for the public to submit comments
during the 90-day comment period. Therefore, the public also had the
ability to submit comments via mail or facsimile during the entire 90-
day period.
The Department believes the numerous examples provided by the
commenter of cases in which Federal agencies extended comment periods
are inapplicable to this rulemaking. The specific scenarios the
commenter listed were apparently all the result of the lapse in
government funding that occurred in October 2013. At that time,
agencies were largely unstaffed, and insufficient personnel were
available to process the comments. This rulemaking has not involved
similar difficulties.
4. Request for Public Hearing
Comments Received
A few commenters requested a hearing pursuant to the NPRM because
they want the opportunity to be heard before ATF prescribes any rule.
One commenter stated that 18 U.S.C. 926(b) requires ATF to hold a
public hearing when such is requested because the statute provides that
the Attorney General ``shall afford interested parties opportunity for
hearing, before prescribing . . . rules and regulations [under 18
U.S.C. ch. 44].''
Department Response
The Department is not persuaded that a public hearing is necessary
or appropriate in connection with this rulemaking. The Department
believes that a comprehensive public record has already been
established through the comment process, which generated over 186,000
comments, some of which included substantial discussions of the
rulemaking. The Department does not believe that a public hearing would
meaningfully add data or information germane to the examination of the
merits of the proposal or would provide substantive factual information
that would assist the Department in improving the rule in material
ways. Furthermore, the Department believes that it has made changes to
this rule and included clarifications in the preamble that address the
important issues raised by parties who requested a hearing. In light of
all the circumstances, a public hearing is unnecessary.
The Supreme Court has held that it is not necessary for an agency
to hold a public hearing on a rulemaking simply because it receives a
request for one. In both United States v. Allegheny-Ludlum Steel Corp.,
406 U.S. 742 (1972), and United States v. Florida East Coast Railway,
410 U.S. 224 (1973), the Court established the rule that it is
necessary to examine the particular statute involved when determining
whether notice-and-comment procedures under 5 U.S.C. 553 are available
or, alternatively, whether there is a right to a formal hearing. In
general, unless a statute specifically provides for rules to be made on
the record after a hearing, the Federal courts have held that the
informal rulemaking procedure is applicable. Thus, even statutory
language such as ``due notice and opportunity for a public hearing,''
and ``opportunity for hearing,'' have been held to mandate only
informal procedures under 5 U.S.C. 553. See 3 Administrative Law 16.03
(2018).
One Federal court specifically addressed the language in 18 U.S.C.
[[Page 66543]]
926(b), on which one commenter relied, and rejected the commenter's
position. In that case, the plaintiff contended ``that all of the
regulations must be invalidated because the Secretary failed to follow
the procedures mandated in FOPA by refusing to afford interested
parties an opportunity for an oral hearing.'' However, the court held
that the agency provided an ``opportunity'' for a hearing even though
it decided against an oral hearing. The court wrote:
FOPA contains no provision guaranteeing interested parties the
right to an oral hearing. . . . It is well-settled that the
requirement of a hearing does not necessitate that the hearing be
oral. Here, the Secretary, pursuant to regulation, reserved for
himself the right to determine whether an oral hearing should be
held. He ultimately determined that an oral hearing was unwarranted,
but did provide interested parties with the opportunity to submit
written comments. This is all the hearing requirement in Sec.
926(b) demands.
Nat'l Rifle Ass'n v. Brady, 914 F.2d 475, 485 (4th Cir. 1990)
(citations omitted). Here, the Department has made the same
determination that an oral hearing is unnecessary.
V. Final Rule
This final rule adopts, with minor changes, the proposed amendments
to the definition of ``machine gun'' in 27 CFR 447.11, 478.11, and
479.11, which include clarification of the meaning of ``automatically''
and ``single function of the trigger'' and clarification that bump-
stock-type devices are machineguns. The Department accordingly
determined that persons in possession of bump-stock-type devices must
destroy or abandon the devices.
In response to comments received and discussed in Part IV, the
Department added employees of manufacturers and one additional
manufacturer to the populations potentially affected by this rule, and
incorporated sales tax of $19.00 per bump-stock-type device as part of
the economic analysis. Also, the Department considered additional
alternatives and inserted an OMB Circular A-4 Accounting Statement for
clarity.
VI. Statutory and Executive Order Review
A. Executive Orders 12866, 13563, and 13771
Executive Orders 13563 (Improving Regulation and Regulatory Review)
and 12866 (Regulatory Planning and Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health, and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, reducing costs, harmonizing rules, and promoting
flexibility. Executive Order 13771 (Reducing Regulation and Controlling
Regulatory Costs) directs agencies to reduce regulation and control
regulatory costs. This final rule is expected to have an impact of over
$100 million in the first year of this regulatory action. Details on
the estimated costs of this final rule can be found in the rule's
economic analysis below.
The Attorney General has determined this rule is a ``significant
regulatory action'' that is economically significant under section
3(f)(1) of Executive Order 12866 because, as discussed, the rule will
have an annual effect on the economy of $100 million or more.
Accordingly, the rule has been reviewed by the Office of Management and
Budget. This rule is a significant regulatory action that clarifies the
meaning of the statutory definition of machinegun and reflects the
public safety goals of the NFA and GCA. Further, this rule is a
regulatory action subject to Executive Order 13771. See OMB, Guidance
Implementing Executive Order 13771, Titled ``Reducing Regulation and
Controlling Regulatory Costs'' (Apr. 5, 2017).
This final rule is intended to interpret the definition of
``machinegun'' within the NFA and GCA such that it includes a bump-
stock-type device, i.e., a device that allows a semiautomatic firearm
to shoot more than one shot with a single pull of the trigger by
harnessing the recoil energy of the semiautomatic firearm to which it
is affixed so that the trigger resets and continues firing without
additional physical manipulation of the trigger by the shooter.
Accounting Statement
Table 1 provides the annualized and unquantified costs and benefits
to this final rule. These costs are annualized and discounted at 3% and
7%.
Table 1--OMB Circular A-4 Accounting Statement
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category Primary estimate
Minimum estimate
Midrange estimate Source........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized monetized benefits (7%)........... N/A........... (7%).......... N/A........... (7%).......... N/A........... Final Rule.
(discount rate in parentheses).
(3%)........... N/A........... (3%).......... N/A........... (3%).......... N/A...........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unquantified Benefits.......... Limit access to bump-stock-type devices Final Rule.
Prevents usage of bump-stock-type devices for criminal purposes.
Intended to reduce casualties in mass shootings.
Intended to help protect first responders when responding to shooting incidents.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized monetized costs (7%)........... $35.0 mil..... (7%).......... $28.9 mil..... (7%).......... $32.0 mil..... Final Rule.
(discount rate in parentheses).
(3%)........... $32.8 mil..... (3%).......... $27.6 mil..... (3%).......... $31.2 mil..... Final Rule.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Qualitative costs Potential loss of wages for employees of bump-stock-type device manufacturers Final Rule.
(unquantified).
Costs of advertising to inform owners of the need to dispose of their bump-stock-type
devices
Lost consumer surplus to users of bump-stock-type devices.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized monetized transfers: 0
``on budget''.
0
0 Final Rule....
--------------------------------------------------------------------------------------------------------------------------------------------------------
From whom to whom?............. N/A
N/A
N/A None..........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized monetized transfers: 0
``off-budget''.
0
0 Final Rule....
--------------------------------------------------------------------------------------------------------------------------------------------------------
From whom to whom?............. N/A
N/A
N/A None..........
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 66544]]
Table 1--OMB Circular A-4 Accounting Statement--Continued
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category Primary estimate
Minimum estimate
Midrange estimate Source........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Miscellaneous analysis/category Effects Source citation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on State, local, and/or None. None.
tribal governments.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on small businesses.... Significant effect on small businesses. Prepared FRFA. RFA.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on wages............... None. None.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects on growth.............. None. None.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Need for Federal Regulatory Action
Agencies take regulatory action for various reasons. One of the
reasons is to carry out Congress's policy decisions, as expressed in
statutes. Here, this rulemaking aims to apply Congress's policy
decision to prohibit machineguns. Another reason underpinning
regulatory action is the failure of the market to compensate for
negative externalities caused by commercial activity. A negative
externality can be the byproduct of a transaction between two parties
that is not accounted for in the transaction. This final rule is
addressing a negative externality. The negative externality of the
commercial sale of bump-stock-type devices is that they could be used
for criminal purposes. This poses a public safety issue that the
Department is trying to address.
Summary of Affected Population, Costs, and Benefits
Table 2 provides a summary of the affected population and
anticipated costs and benefits to promulgating this rule.
Table 2--Summary of Affected Population, Costs, and Benefits
------------------------------------------------------------------------
Affected populations, costs, and
Category benefits
------------------------------------------------------------------------
Applicability..................... Manufacturers of bump-stock-
type devices.
Employees of bump-stock-
type device manufacturers.
Retail sellers of bump-
stock-type devices.
Gun owners who own bump-
stock-type devices or would have
purchased them in the future.
Affected Population............... 1 manufacturer of bump-
stock-type devices.
2,281 retailers of bump-
stock-type devices.
Owners and future consumers
of bump-stock-type devices.
Total Quantified Costs to $245.5 million present
Industry, Public, and Government value over 10 years.
(7% Discount Rate). $35.0 million annualized.
Unquantified Costs................ Potential loss of wages for
employees of bump-stock-type device
manufacturers.
Costs of advertising to
inform owners of the need to
dispose of their bump-stock-type
devices.
Lost consumer surplus to
users of bump-stock-type devices.
Unquantified Benefits............. Limits access to bump-stock-
type devices.
Prevents usage of bump-
stock-type devices for criminal
purposes.
Intended to reduce
casualties in mass shootings.
Intended to help protect
first responders when responding to
shooting incidents.
------------------------------------------------------------------------
Changes from the NPRM to FR
Table 3 presents a summary of the changes to economic effects from
NPRM to final rule.
Table 3--Changes in Bump-Stock-Type Devices From NPRM to the Final Rule
----------------------------------------------------------------------------------------------------------------
Description of
Variables NPRM Final Rule Difference Changes
----------------------------------------------------------------------------------------------------------------
Applicability................... N/A............... Employees of bump- Adding employees Per public
stock-type device of bump-stock- comment, ATF
manufacturers. type device included
manufacturers. employees of
manufacturers
qualitatively.
2 manufacturers... 1 manufacturer.... Subtracted 1...... Based on publicly
available
information.
Cost of Bump-Stock-Type Devices. $301.............. $320.............. $19............... Per public
comment, ATF
included State
and local taxes.
Destruction..................... $5.4 million...... $9.4 million...... $3.9 million...... Change in policy.
Future Sales.................... $213.0 million.... $198.9 million.... $14.1 million..... Change from 2
large retailers
selling bump-
stock-type
devices to 1.
Government Cost................. $0................ $1.3 million...... $1.3 million...... Change in policy.
----------------------------------------------------------------------------------------------------------------
[[Page 66545]]
Alternatives
----------------------------------------------------------------------------------------------------------------
Amnesty or ``grandfathering''... This alternative was rejected because since the passage of Per public
18 U.S.C. 922(o), amnesty registration of machineguns is comment.
not legally permissible
----------------------------------------------------------------------------------------------------------------
Licensing and background checks. This alternative was rejected because only Congress can Per public
add a new class of firearm and impose licensing or comment.
acquisition requirements on them.
----------------------------------------------------------------------------------------------------------------
Remuneration.................... This alternative was rejected because only Congress has Per public
the authority to offer monetary compensation. comment.
----------------------------------------------------------------------------------------------------------------
Medical exemption............... This alternative was rejected because neither the NFA nor Per public
the GCA provides for medical exemptions to acquire a comment.
firearm. Only Congress can add medical exemptions
----------------------------------------------------------------------------------------------------------------
Future production and sales..... This alternative was rejected because ATF does not have Per public
the authority to restrict only the future manufacture or comment.
sale of bump-stock-type devices
----------------------------------------------------------------------------------------------------------------
Quota........................... This alternative was rejected because ATF lacks authority Per public
to implement it, as all devices determined to be comment.
machineguns are prohibited across the board
----------------------------------------------------------------------------------------------------------------
Instituting a tax............... This alternative was rejected because excise tax is Per public
regulated by statute and only Congress can determine the comment.
amount of excise tax on an item
----------------------------------------------------------------------------------------------------------------
Improved security at mass events This alternative was rejected because improved security Per public
must be paired with reasonable regulations to increase comment.
public safety and reduce violent crime
----------------------------------------------------------------------------------------------------------------
Congressional legislation....... This alternative was rejected because ATF has been Per public
delegated authority to issue rules to implement the NFA comment.
and GCA. This action will not prevent Congress from
taking action on bump-stock-type devices
----------------------------------------------------------------------------------------------------------------
Leave to States to regulate..... This alternative was rejected because ATF prioritizes Per public
public safety and preventing crime. This action will not comment.
prevent States from taking action on bump-stock-type
devices
----------------------------------------------------------------------------------------------------------------
Improved law enforcement........ This alternative was rejected because training and Per public
equipment must be paired with reasonable regulatory comment.
efforts to increase public safety and reduce violent
crime
----------------------------------------------------------------------------------------------------------------
Affected Population
The populations affected by this rule are manufacturers of bump-
stock-type devices, employees of bump-stock-type device manufacturers,
retailers who sell them either in brick-and-mortar stores or online,
and individuals who have purchased or would have wanted to purchase
bump-stock-type devices. The number of entities and individuals
affected are as follows:
1 manufacturer
2,281 retailers
An uncertain number of individuals who have purchased bump-
stock-type devices or would have purchased them in the future \15\
---------------------------------------------------------------------------
\15\ Note that many commenters assumed that each person who owns
a bump-stock-type device owns one device. This overestimates the
number of owners because owners of such devices may own more than
one, as evidenced by the Las Vegas shooter, who allegedly owned at
least 12.
---------------------------------------------------------------------------
An estimated 22 employees who were employed by one
manufacturer, based on public comments \16\
---------------------------------------------------------------------------
\16\ Regulations.gov, Docket ID: ATF-2018-0002-16668, available
at https://www.regulations.gov/document?D=ATF-2018-0002-16668 (last
visited Nov. 16, 2018).
Because many bump-stock-type devices--including those ATF addressed
in classification letters between 2008 and 2017--have not been subject
to regulation under the GCA, ATF does not keep track of manufacturers
or retailers of bump-stock-type devices, nor does ATF keep track or
maintain a database of individuals who have purchased bump-stock-type
devices. Therefore, the affected population of manufacturers and
retailers is an estimate and based on publicly available information
and, with respect to retailers who are also Federal firearms licensees
(FFLs), is also based on ATF's records in the Federal Firearms
Licensing System.
Based on publicly available information and comments on the NPRM,
ATF estimates that since 2010, as many as seven domestic bump-stock-
type device manufacturers have been in the marketplace, but due to
patent infringement litigation, only three remained in the market.
However, it appears two have ceased manufacturing bump-stock-type
devices since publication of the NPRM due their inability to obtain
liability insurance. For the estimate of the number of retailers, ATF
filtered all FFLs for a list of potential sellers. While there are
approximately 80,000 FFLs currently licensed, only certain types of
FFLs sell firearms to the public. ATF first removed FFLs that do not
sell firearms to the public. Next, since not all FFLs sell firearm
accessories, ATF needed to estimate the number that do sell
accessories. ATF assumed that FFLs that are likely to sell bump-stock-
type devices also have websites. ATF ran a query on the FFL database
and found that of those that sell firearms to the public, 2,270 have
websites. Because sellers of firearm accessories do not necessarily
sell firearms, ATF also performed an online search and found an
additional 11 retailers who sell firearm accessories, but not firearms.
Adding these two totals together, ATF estimates that there are 2,281
retailers of bump-stock-type devices.
Because there are no records of individuals who have purchased
firearm accessories, ATF does not have an estimated number of
individuals who will be affected by this final rule. Although ATF lacks
data on the number
[[Page 66546]]
of individuals who have purchased bump-stock-type devices, ATF has some
information from one manufacturer and four retailers on the volume of
sales of such devices. Based on these reported amounts, ATF estimates
that the number of bump-stock-type devices that were purchased during
the 8-year period beginning in 2010 ranges from 35,000 per year as a
low estimate to 75,000 per year as the high and primary estimate. ATF
used a public commenter's estimate of 400,000 total devices in
circulation as a third estimate. For further information on the
methodology of these estimates, please review the analysis regarding
``Costs'' below.
Costs
There are four primary sources of costs from this rule. First, for
owners of bump-stock-type devices, there will be a lost value from no
longer being able to possess or use the devices. Second, there will be
a lost value from future sales of the devices. Third, there is a
disposal cost associated with the need to destroy the devices or
abandon them at the nearest ATF office. Finally, there will be a
potential loss of wages from employees losing jobs from loss of
manufacturing; however, the extent to which they will be unable to find
replacement jobs is speculative.
Manufacturing and Startup Cost
Commenters suggested that ATF overlooked the capital expenses to
start up a company to manufacture bump-stock-type devices. The
Department considered the capital expenses for manufacturers. However,
in light of the Las Vegas shooting and potential crowding of additional
manufacturers, the Department determined that the potential for
manufacturers to continue business in a potentially saturated market
was doubtful. Furthermore, the Department has already calculated the
foregone return on investment when the Department considered foregone
production, so accounting for capital expenses would be double counting
of expenditures. Therefore, the viability that these businesses will be
successful is speculative and the capital expenses that they incurred
are a sunk cost for those who put in the expense.
Cost to the Public for Loss of Property
One reason individuals purchase bump-stock-type devices is so that
they can simulate automatic firing on a semiautomatic firearm.
Commenters noted a variety of purposes for which bump-stock-type
devices have been advertised and used, including for recreation and
fun, assisting persons with mobility issues in firing quickly, self-
defense, killing invasive pig species, and target practice (although,
as some commenters observed, bump-stock-type devices impede firing
accuracy). After implementation of this final rule, bump-stock-type
devices that meet the definition of ``machinegun'' under the NFA and
GCA cannot be lawfully possessed because the pertinent provision of the
GCA, 18 U.S.C. 922(o), prohibits persons from possessing a machinegun
unless it was lawfully possessed before the effective date of section
922(o). Bump-stock-type devices currently possessed by individuals will
have to be destroyed or abandoned prior to the effective date of this
regulation.
The lost value from no longer being able to use or purchase bump-
stock-type devices will depend on the volume of sales in the market and
the value that consumers place on the devices. ATF has limited
information about the market for bump-stock-type devices. ATF first
developed an estimate of the number of bump-stock-type devices in the
marketplace based on information on retail sales provided in response
to the ANPRM. One ANPRM commenter estimated that more than 400,000
bump-stock-type devices may have been sold. Based on publicly available
information, ATF estimates that in the first two years that bump-stock-
type devices were in the market, approximately 35,000 were sold per
year.\17\ However, after 2011, other manufacturers entered the market
and there is no available information regarding the total number of
bump-stock-type devices manufactured. ATF is using publicly available
information on manufacturing and combining it with the information on
retail sales to estimate a range of the number of bump-stock-type
devices in the marketplace.
---------------------------------------------------------------------------
\17\ Donnie A. Lucas, Firing Up Some Simple Solutions, Albany
News (Dec. 22, 2011), http://www.thealbanynews.net/archives/2443.
---------------------------------------------------------------------------
One retailer stated that it sold an average of 4,000 to 5,000 bump-
stock-type devices per year.\18\ One commenter indicated that one
retailer sold 3,800 bump-stock-type devices annually, one sold 60 per
year, and one sold approximately 5-10 per year.\19\ For the purposes of
this regulatory analysis (RA), ATF assumes that a large retailer has
sold 4,400, a midrange retailer has sold 60, and a small retailer has
sold 8.\20\ For the purposes of this analysis, ATF assumes the number
of retailers by size are as follows:
---------------------------------------------------------------------------
\18\ Based on an internal survey of large retailers.
\19\ Regulations.gov, Docket ID: ATF-2018-0001-27509, https://www.regulations.gov/document?D=ATF-2018-0001-27509 (last visited on
Nov. 16, 2018); Regulations.gov, Docket ID: ATF-2018-0001-0433,
https://www.regulations.gov/document?D=ATF-2018-0001-0433 (last
visited on Nov. 16, 2018); Regulations.gov, Docket ID: ATF-2018-
0001-0128, https://www.regulations.gov/document?D=ATF-2018-0001-0128
(last visited on Nov. 16, 2018).
\20\ For a large retailer the average sales were 4,400 = (3,800
+ 5,000)/2. For a small retailer, the average sales were 8 = (5 +
10)/2.
4 large * 4,400 annual sales
755 midrange * 60 annual sales
1,511 small * 8 annual sales
The number of large retailers is a known number. As stated in the
Affected Population section above, based on ATF's internal database and
online research, the remaining number of retailers is 2,270. For the
purposes of this RA, ATF estimated that one-third of the remaining
retailer population are midrange retailers, and the remaining 1,511 are
small retailers. Using these estimated numbers of retailers and annual
sales by size of retailer, ATF estimated annual sales of about 75,000
[(4 * 4,400) + (755 * 60) + (1,511 * 8)].
ATF next developed an estimate of the number of bump-stock-type
devices in the United States based on information about the number of
bump-stock-type devices manufactured. Based on publicly available
information, ATF estimates that approximately 35,000 bump-stock-type
devices were sold in 2010.\21\ Only in 2012 did other manufacturers
enter the marketplace. For the purposes of this RA, ATF assumes that in
the first two years of production, the one manufacturer produced the
same 35,000 in years 2010 and 2011. ATF has two sets of production
estimates. Because no information is otherwise known about the
production of bump-stock-type devices, ATF assumes that the low
estimate of annual bump-stock-type device production is a constant
35,000, based on the one data point. As stated earlier, a public
commenter provided an estimate of 400,000 bump-stock-type devices
currently in circulation. To account for how these were purchased over
the last 8 years, ATF also assumed the same 35,000 production in the
first 2 years, but spread out the remaining 330,000 over the remaining
6 years, or about 55,000 per year. However, there were public comments
that stated how many bump-stock-type devices were sold by that
retailer. Using the retail sales information, ATF developed a third,
higher estimate reflecting that when the other manufacturers entered
the market, the number of bump-stock-type devices sold on the market
annually could have been 75,000.
---------------------------------------------------------------------------
\21\ Lucas, supra note 17.
---------------------------------------------------------------------------
The high estimate is ATF's primary estimate because ATF knows that
there
[[Page 66547]]
was an increase in production starting in 2012. In 2012, there were
other manufacturers who entered the market, and the first manufacturer
increased production at some point thereafter. Furthermore, the primary
estimate includes information provided by retailers as a more
comprehensive outlook on the overall production numbers. For the
purposes of this analysis, ATF assumes that both the increase in
production and the market entry of other manufacturers all occurred in
2012. Table 4 provides the breakdown of production for the low
estimate, public comment estimate, and primary estimate.
Table 4--Number of Bump-Stock-Type Devices Produced, Based on Manufacturer and Retail Sales
----------------------------------------------------------------------------------------------------------------
Public comment Primary
Year Low estimate estimate estimate
----------------------------------------------------------------------------------------------------------------
2010............................................................ 35,000 35,000 35,000
2011............................................................ 35,000 35,000 35,000
2012............................................................ 35,000 55,000 75,000
2013............................................................ 35,000 55,000 75,000
2014............................................................ 35,000 55,000 75,000
2015............................................................ 35,000 55,000 75,000
2016............................................................ 35,000 55,000 75,000
2017............................................................ 35,000 55,000 75,000
-----------------------------------------------
Total....................................................... 280,000 400,000 520,000
----------------------------------------------------------------------------------------------------------------
In other words, the number of bump-stock-type devices held by the
public could range from about 280,000 to about 520,000.
ATF does not know the production cost of bump-stock-type devices,
but for the purposes of this RA, ATF uses the retail sales amounts as a
proxy for the total value of these devices. For devices that have
already been sold, there are two countervailing effects that affect the
value of the devices. There may have been some depreciation of the
devices since they were originally purchased, resulting in a value
somewhat reduced from the retail price. On the other hand, some
consumers may have been willing to pay more than the retail price for a
bump-stock-type device, and for these individuals the devices would
have a higher valuation than the retail price. Both of these effects
are difficult to estimate, and here ATF assumes that the retail sales
price is a reasonable proxy for the value of the devices.
The primary manufacturer of bump-stock-type devices sells them at a
price of $179.95 to $425.95.\22\ For the purposes of this RA, ATF
estimates that the average sale price, including State and local taxes,
for these bump-stock-type devices was $320.00 during the first two
years they were sold. In 2012, at least one other manufacturer entered
the market and started selling its devices at the rate of $99.99,
making the overall prices for these devices lower.\23\ For the purposes
of this RA, ATF assumes that the average sale price, including State
and local taxes, for bump-stock-type devices from 2012 to 2017 was
$213.00. Based on these costs, multiplied by the number of bump-stock-
type devices in the market, Table 5 provides the sales value that the
public has spent on these devices over the course of the last eight
years.
---------------------------------------------------------------------------
\22\ Slide Fire AR-15 Bump Fire Stocks (archived page on Jan.
28, 2017), https://web.archive.org/web/20170128085532/http://www.slidefire.com/products/ar-platform (last visited Nov. 28, 2018).
\23\ Bump Fire Systems (archived page on Feb. 21, 2015), https://web.archive.org/web/20150221050223/http://bumpfiresystems.com/
(last visited Nov. 28, 2018).
Table 5--Amount Spent on Bump-Stock-Type Devices
[Undiscounted]
----------------------------------------------------------------------------------------------------------------
Midrange
Year Low estimate estimate Primary
----------------------------------------------------------------------------------------------------------------
2011............................................................ $11,214,896 $11,214,896 $11,214,896
2012............................................................ 11,214,896 11,214,896 11,214,896
2013............................................................ 7,470,511 11,739,374 16,008,237
2014............................................................ 7,470,511 11,739,374 16,008,237
2015............................................................ 7,470,511 11,739,374 16,008,237
2016............................................................ 7,470,511 11,739,374 16,008,237
2017............................................................ 7,470,511 11,739,374 16,008,237
-----------------------------------------------
Total....................................................... 59,782,345 81,126,661 102,470,977
----------------------------------------------------------------------------------------------------------------
ATF estimates that the total, undiscounted amount spent on bump-
stock-type devices was $102.5 million. While the retail prices of these
bump-stock-type devices remained constant over the eight years of
sales, these purchases occurred over time; therefore, ATF presents the
discounted value at 3% and 7% in Table 6 to account for the present
value of these purchases.
[[Page 66548]]
Table 6--The Amount Spent Purchasing Bump-Stock-Type Devices, Discounted at 3% and 7%
----------------------------------------------------------------------------------------------------------------
Year Undiscounted 3% 7%
----------------------------------------------------------------------------------------------------------------
2011............................................................ $11,214,896 $13,001,138 $15,729,472
2012............................................................ 11,214,896 12,622,464 14,700,441
2013............................................................ 16,008,237 17,492,633 19,610,779
2014............................................................ 16,008,237 16,983,139 18,327,831
2015............................................................ 16,008,237 16,488,484 17,128,814
2016............................................................ 16,008,237 16,008,237 16,008,237
2017............................................................ 16,008,237 15,541,978 14,960,969
-----------------------------------------------
Total....................................................... 102,470,977 108,138,073 116,466,542
Annualized Cost................................................. .............. 15,404,959 19,504,391
----------------------------------------------------------------------------------------------------------------
Because these purchases occurred in the past, ATF's discount years
start at -5 and increase to 0 to account for the Executive Order 13771
standard that costs be presented in 2016 dollars. With these
assumptions, ATF estimates that the annualized, discounted amount spent
on bump-stock-type devices was $15.4 million and $19.5 million at 3%
and 7%, respectively.
Based on the same discounting formula, ATF estimates that the total
undiscounted cost for the low estimate is $59.7 million, and the total
discounted values are $64.1 million and $70.6 million at 3% and 7%,
respectively. The annualized values for the low estimates of the total
number of bump-stock-type devices sold are $9.1 million and $11.8
million at 3% and 7%, respectively. For the 400,000-unit estimate
provided by the public commenter, the total undiscounted amount is
$81.1 million, and the total discounted values would be $86.1 million
and $93.5 million at 3% and 7%, respectively. The annualized values for
the 400,000-unit sales estimate are $12.3 million and $15.7 million at
3% and 7%, respectively.
Forgone Future Production and Sales
ATF has estimated the lost production and lost sales that will
occur in the 10 years after the implementation of this final rule.
These estimates take into account lost revenue from manufacturers and
retailers. ATF does not parse out manufacturing and retail sales, in
order to limit double counting. In order to do this, ATF needed to
predict the number of devices that would have been sold in the future
in the absence of a rule. Such a prediction should take account of
recent expected changes in the demand for and supply of bump-stock-type
devices. For example, based on a survey, three of the four known, large
former retailers of bump-stock-type devices no longer sell bump-stock-
type devices as a result of the Las Vegas shooting, nor do they intend
to sell them in the future. Moreover, while ATF has estimated the
number of bump-stock-type devices manufactured since 2010, ATF is
without sufficient information to estimate the number of individuals
who were interested in acquiring bump-stock-type devices prior to the
Las Vegas shooting but would no longer want them due to the shooting.
Another recent change affecting individuals' future purchases of
bump-stock-type devices is that certain States have already banned such
devices. These States are California, Connecticut, Delaware, Florida,
Hawaii, Maryland, Massachusetts, New Jersey, Rhode Island, Vermont, and
Washington.\24\ The effect of States' bans on individuals' future
purchases of bump-stock-type devices should not be attributed to this
final rule since these reductions in purchases will happen with or
without the rule. However, ATF was unable to quantify the impact of
States' bans and thus was unable to account for the future effects of
these bans in the estimate of the effects of the final rule.
---------------------------------------------------------------------------
\24\ Cal. Penal Code sections 16930, 32900 (2018); 2018 Conn.
Acts 18-29 (Reg. Sess.); Del. Code Ann. tit. 11, section 1444(a)(6)
(2018); Fla. Stat. section 790.222 (2018); Haw. Rev. Stat. section
134-8.5 (2018); Md. Code. Ann., Crim. Law section 4-305.1 (2018);
Mass. Gen. Laws ch. 140, section 121, 131 (2018); N.J. Stat. Ann.
sections 2C:39-3(l), 2C:39-9(j); 11 R.I. Gen. Laws section 11-47-
8(d) (2018); Vt. Stat. Ann. tit. 13, section 4022 (2018); 2018 Wash.
Sess. Laws ch. 7, pp. 196-220.
---------------------------------------------------------------------------
Based on previously mentioned comments from large retailers, ATF
expects that, even in the absence of this rule, some retailers would
not sell bump-stock-type devices in the future. In order to estimate
the expected future reduction in demand for bump-stock-type devices as
a result of the Las Vegas shooting, ATF assumes that the reduction of
sales by large retailers that has already occurred would be a
reasonable estimate of the future reduction of sales overall that would
occur in the absence of this rule. In the NPRM, ATF estimated that two
of the four large retailers would remain in the market to sell bump-
stock-type devices. 83 FR at 13452. Since then, one of these remaining
retailers merged with one of the large retailers that opted not to sell
bump-stock-type devices, resulting in only one large retailer remaining
in the market. For the purposes of this regulatory analysis, it is
estimated that the one large retailer that would otherwise intend to
keep selling bump-stock-type devices sells 4,400 of such devices
annually. Removing the effects of these three large retailers from the
future market reduces ATF's primary estimate of 74,988 in past annual
production to an estimate of 62,084 (= 75,284-13,200) in annual sales
that would have occurred in the future in the absence of this rule.
Table 7 provides the estimated breakdown of lost production and sales
forgone due to this rule.
Table 7--Forgone Production and Sales of Future Bump-Stock-Type Devices
----------------------------------------------------------------------------------------------------------------
Number of bump-
Year stock-type devices Undiscounted 3% 7%
----------------------------------------------------------------------------------------------------------------
2018............................ 62,084 $19,893,303 $19,313,886.10 $18,591,871.67
2019............................ 62,084 19,893,303 18,751,345.73 17,375,581.00
2020............................ 62,084 19,893,303 18,205,190.03 16,238,860.74
[[Page 66549]]
2021............................ 62,084 19,893,303 17,674,941.77 15,176,505.37
2022............................ 62,084 19,893,303 17,160,137.64 14,183,649.88
2023............................ 62,084 19,893,303 16,660,327.81 13,255,747.55
2024............................ 62,084 19,893,303 16,175,075.54 12,388,549.11
2025............................ 62,084 19,893,303 15,703,956.84 11,578,083.28
2026............................ 62,084 19,893,303 15,246,560.04 10,820,638.58
2027............................ 62,084 19,893,303 14,802,485.47 10,112,746.34
-------------------------------------------------------------------------------
Total....................... .................. 198,933,027 169,693,906.98 139,722,233.51
Annualized Cost................. .................. .................. 24,173,981.19 23,398,969.82
----------------------------------------------------------------------------------------------------------------
Based on these estimates, ATF estimates that the undiscounted value
of forgone future sales over 10 years is $198.9 million, undiscounted,
or $24.2 million and $23.4 million, annualized and discounted at 3% and
7%.
Disposal
This final rule requires the destruction of existing bump-stock-
type devices. The cost of disposal has several components. For
individuals who own bump-stock-type devices, there is a cost for the
time and effort to destroy the devices or ensure that they are
destroyed by another party. For retailers, wholesalers, and
manufacturers, there is a cost of the time and effort to destroy or
ensure the destruction of any devices held in inventory. In addition,
this final rule incorporates the option of abandoning bump-stock-type
devices at an ATF office. Based on the response from commenters, this
cost is taken into consideration under the foregone sales section.
Individuals who have purchased bump-stock-type devices prior to the
implementation of this rule must destroy the devices themselves prior
to the effective date of the rule or abandon them at their local ATF
office. Options for destroying the devices include melting, crushing,
or shredding in a manner that renders the device incapable of ready
restoration. Since the majority of bump-stock-type devices are made of
plastic material, individuals can use a hammer to break apart the
devices and throw the pieces away. Other destruction options that ATF
has historically accepted include torch cutting or sawing the device in
a manner that removes at least \1/4\ inch of material for each cut and
completely severs design features critical to the functionality of the
device as a bump-stock-type device.
Current possessors are encouraged to undertake destruction of the
devices. However, current possessors also have the option to abandon
bump-stock-type devices at the nearest ATF office. Current possessors
of bump-stock-type devices will have until the effective date of the
rule (90 days from date of publication in the Federal Register) to
comply. Additional information on the destruction of bump-stock-type
devices will be available on www.atf.gov.
Based on comments received on the ANPRM, unsellable inventory could
be worth approximately $35,000 per large retailer. One commenter,
assumed to be a large retailer, stated that its gross sales were
$140,000. Another commenter assumed to be a midrange retailer had gross
sales of $18,000. No known sales were reported for a small retailer.
Based on the proportion of sales among the large, midrange, and small
retailers, ATF estimates that the amounts in existing inventory for
each type of retailer are as follows:
Large retailer: $35,000;
midrange retailer: $4,500; and
small retailer: $74.\25\
---------------------------------------------------------------------------
\25\ Midrange: $4,500 = ($18,000/$140,000) * $35,000. Small: $74
= (8/3,800) * $35,000.
There were no comments on the NPRM about these assumptions or the
methodology used based on the ANPRM comments. Therefore, the analysis
used to determine the cost of unsellable inventory remains the same for
this final rule.
The commenter assumed to be a large retailer also commented that
the opportunity cost of time needed to destroy existing inventory will
be approximately $700. ATF's subject matter experts estimate that a
retailer could use a maintenance crew to destroy existing inventory. To
determine the hourly time needed to destroy existing inventory, ATF
used the $700 reported amount, divided by the loaded wage rate of a
building cleaning worker. ATF subject matter experts also suggest that
existing packers would be used for a midrange retailer and the minimum
wage would be used for a small retailer. A multiplier of 1.43 was
applied to unloaded wage rates to account for fringe benefits.\26\
Table 9 provides the wages used for this analysis.
---------------------------------------------------------------------------
\26\ BLS Series ID CMU2010000000000D, CMU2010000000000P (Private
Industry Compensation = $32.35)/(Private Industry Wages and Salaries
= $22.55) = 1.43. BLS average 2016. U.S. Bureau of Labor Statistics,
https://beta.bls.gov/dataQuery/find?fq=survey:[cm]&s=popularity:D.
Table 9--Wage Series To Destroy Existing Inventory
----------------------------------------------------------------------------------------------------------------
Unloaded wage Loaded wage
Wage series Series code rate rate Source
----------------------------------------------------------------------------------------------------------------
Individual....................... ................... $13.60 $13.60 https://www.transportation.gov/sites/dot.gov/files/docs/2016%20Revised%20Value%20of%20Travel%20Time%20Guidance.pdf.
Minimum Wage Rate................ Min Wage........... 7.25 10.40 https://www.bls.gov/opub/reports/minimum-wage/2016/home.htm.
Packers, Packagers, and Handlers. 53-7064............ 11.74 16.84 https://www.bls.gov/oes/2016/may/oes537064.htm.
Retail Salespersons.............. 41-2031............ 13.07 18.75 https://www.bls.gov/oes/2016/may/oes412031.htm.
[[Page 66550]]
Building Cleaning Workers, All 37-2019............ 14.88 21.34 https://www.bls.gov/oes/
Other. 2016/may/oes372019.htm.
----------------------------------------------------------------------------------------------------------------
Based on the estimated wages and reported opportunity cost of time,
ATF estimates that it will take a large retailer 32.8 hours, a midrange
retailer 0.45 hours, and a small retailer 0.25 hours to destroy
existing inventory. Table 10 provides the per-retailer estimated
opportunity cost of time.
Table 10--Opportunity Cost of Time To Destroy Existing Inventory
----------------------------------------------------------------------------------------------------------------
Incremental Opportunity
Population cost Hourly burden cost of time
----------------------------------------------------------------------------------------------------------------
Individual...................................................... $13.60 0.25 $3.40
Retailer (Large)................................................ 21.34 32.8 699.95
Retailer (Midrange)............................................. 16.84 0.45 7.58
Retailer (Small)................................................ 19.51 0.25 4.88
----------------------------------------------------------------------------------------------------------------
As stated earlier, ATF estimates that there are 520,000 bump-stock-
type devices already purchased by the public. For the purposes of this
analysis, we estimate the following calculations to destroy bump-stock-
type devices:
Individual: $1.3 million = (1.8 million * 75%)
Retailer (Large): 3 retailers * $699.95 opportunity cost of
time + ($35,000 inventory * 75%)
Retailer (Midrange): 569 retailers * $7.58 opportunity cost
of time + ($4,500 inventory * 75%)
Retailer (Small): 1139 retailers * $4.88 opportunity cost
of time + ($74 inventory * 75%)
Based on the opportunity cost of time per bump-stock-type device,
and the estimated opportunity cost of time per retailer, ATF provides
the cost to destroy all existing bump-stock-type devices in Table 11.
Table 11--Cost of Existing Inventory and Opportunity Cost of Time To Destroy Existing Devices by Individual and
Retailer Size
----------------------------------------------------------------------------------------------------------------
Original cost Reduced cost Net change
----------------------------------------------------------------------------------------------------------------
Individual...................................................... $1,768,000 $1,326,000 $442,000
Retailer (Large)................................................ 142,800 80,850 61,950
Retailer (Midrange)............................................. 3,421,252 1,924,687 1,496,565
Retailer (Small)................................................ 116,279 66,176 50,103
-----------------------------------------------
Total Disposal Cost......................................... 5,448,330 3,397,713 2,050,618
----------------------------------------------------------------------------------------------------------------
For those abandoning bump-stock-type devices, we estimate that
130,000 individuals, 1 large retailer, 138 midrange retailers, and 139
small retailers will abandon them at their nearest ATF office. Table 12
provides the cost of gas, travel time, and mileage to abandon them.
Table 12--Cost of Gas, Travel Time, and Mileage
----------------------------------------------------------------------------------------------------------------
Cost item Rate Source
----------------------------------------------------------------------------------------------------------------
Gas Consumption................................ $0.545 https://www.gsa.gov/travel-resources.
Hours of Weekend Travel Time................... 1.556 https://nhts.ornl.gov/2009/pub/stt.pdf.
Miles Traveled................................. 7 https://nhts.ornl.gov/2009/pub/stt.pdf.
----------------------------------------------------------------------------------------------------------------
Assuming these devices will be abandoned during leisure hours, ATF
uses the leisure wage rate of $13.60. ATF estimates that the cost to
travel to ATF offices will be $24.98 per trip = (13.60 leisure wage *
1.556 hours of weekend travel time) + ($0.545 gas consumption * 7 miles
traveled). For the purposes of this analysis, we estimate the following
calculations to destroy bump-stock-type devices:
Individual: 520,000 bump-stock-type devices * 25% * $24.98
Retailer (Large): (1 retailer * $24.98 travel cost) +
($35,000 inventory * 25%)
Retailer (Midrange): (190 retailers *$24.98 travel cost) +
($4,500 inventory * 25%)
Retailer (Small): (379 retailers * $24.98 travel cost) +
($74 inventory * 75%)
Table 13 provides the additional cost of abandoning bump-stock-type
devices at ATF offices.
Table 13--Disposal Cost To Abandon Bump-Stock-Type Devices at ATF
Offices
------------------------------------------------------------------------
------------------------------------------------------------------------
Individual.............................................. $3,247,400
Retailer (Large)........................................ 8,775
Retailer (Midrange)..................................... 1,375,025
Retailer (Small)........................................ 1,373,974
---------------
Total Cost to Abandon............................... 6,005,174
------------------------------------------------------------------------
[[Page 66551]]
We treat all costs of disposal of existing devices owned by
individuals or held in inventory by retailers or manufacturers as if
they occur in 2018. Therefore, the disposal costs of the rule in 2018
would include the total undiscounted value of existing stock of bump-
stock-type devices and the total cost of disposal from Tables 11 and 13
for the total disposal cost of $9.4 million.
Government Costs
Because ATF allows bump-stock-type device owners to abandon these
devices at ATF offices, ATF incorporates the government cost to dispose
of these devices. ATF estimates that an agent at a GS-13 level will
dispose of the device in 0.25 hours at a loaded wage rate of $41.07 per
hour.\27\ ATF anticipates that it will cost $1.3 million to destroy
these devices in-house.
---------------------------------------------------------------------------
\27\ Office of Personnel Management, Salary Table 2018-GS,
https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2018/GS_h.pdf.
---------------------------------------------------------------------------
Overall, ATF estimates that the total cost of this final rule would
be $312.1 million over a 10-year period of future analysis. This cost
includes the first-year cost to destroy all existing bump-stock-type
devices, including unsellable inventory and opportunity cost of time.
Table 14 provides the 10-year cost of this final rule.
Table 14--10-Year Cost of Final Rule
----------------------------------------------------------------------------------------------------------------
Year Undiscounted 3% 7%
----------------------------------------------------------------------------------------------------------------
2018............................................................ 133,101,942 129,225,186 124,394,338
2019............................................................ 19,893,303 18,751,346 17,375,581
2020............................................................ 19,893,303 18,205,190 16,238,861
2021............................................................ 19,893,303 17,674,942 15,176,505
2022............................................................ 19,893,303 17,160,138 14,183,650
2023............................................................ 19,893,303 16,660,328 13,255,748
2024............................................................ 19,893,303 16,175,076 12,388,549
2025............................................................ 19,893,303 15,703,957 11,578,083
2026............................................................ 19,893,303 15,246,560 10,820,639
2027............................................................ 19,893,303 14,802,485 10,112,746
-----------------------------------------------
Total....................................................... 312,141,666 279,605,207 245,524,700
Annualized Cost................................................. .............. 32,778,260 34,957,194
----------------------------------------------------------------------------------------------------------------
The total 7% discounted cost is $249.6 million, and the annualized
discounted costs would be $32.8 million and $35.0 million annualized at
3% and 7% respectively.
Cost Savings
ATF did not calculate any cost savings for this final rule.
Benefits
As reported by commenters, the purpose of this rule is to amend ATF
regulations to clarify that bump-stock-type devices are ``machineguns''
as defined by the NFA and GCA. Additionally, a desired outcome of this
rule is increased public safety. While there has been only one known
shooting involving bump-stock-type devices, banning such devices could
result in reduced casualties as a consequence of reducing incidents of
shootings involving a weapon fitted with a bump-stock-type device. A
ban also could result in less danger to first responders when
responding to incidents, because it prevents shooters from using
devices that allow them to shoot semiautomatic firearms automatically.
Alternatives
Alternative 1--No change alternative. This alternative would leave
the regulations in place as they currently stand. Since there would be
no changes to regulations, there would be no cost, savings, or benefits
to this alternative.
Alternative 2--Patronizing a shooting range. Individuals wishing to
experience shooting a ``full-auto'' firearm could go to a shooting
range that provides access to lawfully registered ``pre-1986''
machineguns to customers, where the firearm remains on the premises and
under the control of the shooting range. ATF does not have the
information to determine which, where, or how many gun ranges provide
such a service and is therefore not able to quantify this alternative.
Alternative 3--Opportunity alternatives. Based on public comments,
individuals wishing to replicate the effects of bump-stock-type devices
could also use rubber bands, belt loops, or otherwise train their
trigger finger to fire more rapidly. To the extent that individuals are
capable of doing so, this would be their alternative to using bump-
stock-type devices.
Public comments from the NPRM suggested other alternatives:
1. Provide amnesty or ``grandfathering.'' This alternative was
rejected because since the passage of 18 U.S.C. 922(o), amnesty
registration of machineguns is not legally permissible; all devices
determined to be machineguns are prohibited except as provided by
exceptions established by statute.
2. Provide licensing and background checks. This alternative was
rejected because only Congress can add a new class of firearm to the
GCA and impose licensing or acquisition requirements on it.
3. Provide compensation for the destruction of the devices. This
alternative was rejected because only Congress has the authority to
offer monetary compensation.
4. Provide a medical exemption. This alternative was rejected
because neither the NFA nor the GCA provides for medical exemptions
to acquire an otherwise prohibited firearm. Only Congress can add
medical exemptions.
5. Prohibit only future manufacture and sales. This alternative
was rejected because ATF does not have the authority to restrict
only the future manufacture or sale of bump-stock-type devices.
6. Provide a quota. This alternative was rejected because ATF
lacks authority to implement it, as all devices determined to be
machineguns are prohibited across the board.
7. Institute a tax. This alternative was rejected because ATF
lacks authority to establish excise taxes.
8. Improve security at mass events. This alternative was
rejected because improved security must be paired with reasonable
regulations to increase public safety and reduce violent crime.
9. Congressional legislation. This alternative was rejected
because issuance of this rule will not prevent Congress from taking
action on bump-stock-type devices.
10. Leave the issue to the States. This alternative was rejected
because ATF is responsible for implementing the NFA and GCA, Federal
laws designed to maintain public safety. Issuance of this rule will
not
[[Page 66552]]
prevent States from taking action on bump-stock-type devices.
11. Improved law enforcement capabilities. This alternative was
rejected because while training and equipment may assist law
enforcement efforts, they are not a substitute for the Department's
exercise of its public safety responsibility of interpreting the NFA
and GCA appropriately.
B. Executive Order 13132
This regulation will not have substantial direct effects on the
States, the relationship between the Federal Government and the
States, or the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section
6 of Executive Order 13132 (Federalism), the Attorney General has
determined that this regulation does not have sufficient federalism
implications to warrant the preparation of a federalism summary
impact statement.
C. Executive Order 12988
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice
Reform).
D. Regulatory Flexibility Act (RFA)
Summary of Findings
ATF performed a Final Regulatory Flexibility Analysis of the
impacts on small businesses and other entities from the final rule.
Based on the information from this analysis, ATF found:
It is estimated that the remaining manufacturer will go
out of business;
There are 2,281 retailers, of which most are estimated
to be small;
There are no relevant government entities.
Final Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA) establishes ``as a principle
of regulatory issuance that agencies shall endeavor, consistent with
the objectives of the rule and of applicable statutes, to fit
regulatory and informational requirements to the scale of the
businesses, organizations, and governmental jurisdictions subject to
regulation. To achieve this principle, agencies are required to solicit
and consider flexible regulatory proposals and to explain the rationale
for their actions to assure that such proposals are given serious
consideration.'' Pub. L. 96-354, section 2(b), 94 Stat. 1164 (1980).
Under the RFA, the agency is required to consider if this rule will
have a significant economic impact on a substantial number of small
entities. Agencies must perform a review to determine whether a rule
will have such an impact. If the agency determines that it will, the
agency must prepare a regulatory flexibility analysis as described in
the RFA.
Under the RFA (5 U.S.C. 604(a)), the final regulatory flexibility
analysis must contain:
A statement of the need for, and objectives of, the
rule;
A statement of the significant issues raised by the
public comments in response to the initial regulatory flexibility
analysis, a statement of the assessment of the agency of such
issues, and a statement of any changes made in the proposed rule as
a result of such comments;
The response of the agency to any comments filed by the
Chief Counsel for Advocacy of the Small Business Administration in
response to the proposed rule, and a detailed statement of any
change made to the proposed rule in the final rule as a result of
the comments;
A description of and an estimate of the number of small
entities to which the rule will apply or an explanation of why no
such estimate is available;
A description of the projected reporting,
recordkeeping, and other compliance requirements of the rule,
including an estimate of the classes of small entities that will be
subject to the requirement and the type of professional skills
necessary for preparation of the report or record; and
A description of the steps the agency has taken to
minimize the significant economic impact on small entities
consistent with the stated objectives of applicable statutes,
including a statement of the factual, policy, and legal reasons for
selecting the alternative adopted in the final rule and why each one
of the other significant alternatives to the rule considered by the
agency that affect the impact on small entities was rejected.
The RFA covers a wide range of small entities. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. 5 U.S.C. 601(3)-(6). ATF determined that the rule affects a
variety of large and small businesses (see the section below titled ``A
description of and an estimate of the number of small entities to which
the rule will apply or an explanation of why no such estimate is
available''). Based on the requirements above, ATF prepared the
following regulatory flexibility analysis assessing the impact on small
entities from the rule.
A Statement of the Need for, and Objectives of, the Rule
Agencies take regulatory action for various reasons. One of the
reasons is to carry out Congress's policy decisions, as expressed in
statutes. Here, this rulemaking aims to apply Congress's policy
decision to prohibit machineguns. Another reason underpinning this
regulatory action is the failure of the market to compensate for
negative externalities caused by commercial activity. A negative
externality can be the byproduct of a transaction between two parties
that is not accounted for in the transaction. This final rule is
addressing a negative externality. The negative externality of the
commercial sale of bump-stock-type devices is that they could be used
for criminal purposes. This poses a public safety issue, which the
Department is trying to address.
A Statement of the Significant Issues Raised by the Public Comments in
Response to the Initial Regulatory Flexibility Analysis, a Statement of
the Assessment of the Agency of Such Issues, and a Statement of Any
Changes Made in the Proposed Rule as a Result of Such Comments
Several commenters suggested that this rule will devastate
companies that manufacture bump-stock-type devices and the local
communities that they employ. The Department concurs that this rule
will prevent manufacturers of bump-stock-type devices from producing
and selling them. Based on publicly available information, the
Department estimates that there is only one manufacturer actively
producing and selling such devices. For the purposes of this rule, it
is considered a small business. Due to the requirements of the NFA,
there are no alternatives that are scalable by business size for this
rule.
Some commenters suggested that the RFA requires agencies to
consider the innovative impacts that small businesses have on the
firearms market. ATF interprets the RFA's usage of ``innovation'' in
terms of regulatory approaches that the agency could use to allow for
small businesses to compete against non-small businesses. As there are
no non-small businesses that manufacture bump-stock-type devices, ATF
was unable to determine any regulatory approaches that would allow
small manufacturers to compete with non-small businesses with respect
to manufacturing bump-stock-type devices.
The Response of the Agency to Any Comments Filed by the Chief Counsel
for Advocacy of the Small Business Administration in Response to the
Proposed Rule, and a Detailed Statement of Any Change Made to the
Proposed Rule in the Final Rule as a Result of the Comments
There were no comments filed by the Chief Counsel for Advocacy of
the Small Business Administration in response to the proposed rule.
Therefore, no
[[Page 66553]]
changes were made to the proposed rule in the final rule as a result of
comments.
A Description of and an Estimate of the Number of Small Entities to
Which the Rule Will Apply or an Explanation of Why No Such Estimate Is
Available
This rule would affect primarily manufacturers of bump-stock-type
devices, FFLs that sell bump-stock-type devices, and other small
retailers of firearm accessories that have invested in the bump-stock-
type device industry. Based on publicly available information, there is
one manufacturer affected. Of the known retailers, the large retailers
do not intend to continue selling bump-stock-type devices. There may be
some small retailers that would have intended to continue selling these
devices had this final rule not been promulgated and would thus be
affected by this final rule. Based on the information from this
analysis, ATF found:
There is 1 manufacturer who is likely to be a small
entity;
There are 2,270 retailers who are likely to be small
entities;
There are no government jurisdictions affected by this
final rule; and
There are no nonprofits found in the data.
A Description of the Projected Reporting, Recordkeeping and Other
Compliance Requirements of the Rule, Including an Estimate of the
Classes of Small Entities Which Will Be Subject to the Requirement and
the Type of Professional Skills Necessary for Preparation of the Report
or Record
There are no reporting or recordkeeping requirements for this final
rule. The only relevant compliance requirement consists of disposing of
all existing inventory of bump-stock-type devices for small entities
that carry them. There would not be any professional skills necessary
to record or report in this final rulemaking.
A Description of the Steps the Agency Has Taken to Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including a Statement of the
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each One of the Other Significant
Alternatives to the Rule Considered by the Agency Which Affect the
Impact on Small Entities Was Rejected
Alternatives were considered in this final rule. Alternatives
include making no regulatory changes. ATF rejected this alternative
because it would not be consistent with ATF's interpretation of the
statutory term ``machinegun.'' There were no other regulatory
alternatives to this proposal that ATF has been able to identify that
accomplish the objective of this final rule.
E. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is a major rule as defined by section 251 of the Small
Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804.
This rule is likely to be considered major as it is economically
significant and is projected to have an effect of over $100 million on
the economy in at least the first year of the rule.
F. Congressional Review Act
This rule is a major rule as defined by the Congressional Review
Act, 5 U.S.C. 804. This rule is likely to be considered major as it is
economically significant and is projected to have an effect of over
$100 million on the economy in at least the first year of the rule's
existence.
G. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995, Public Law 104-4, 109 Stat. 48.
H. Paperwork Reduction Act of 1995
This final rule does not impose any new reporting or recordkeeping
requirements under the Paperwork Reduction Act, 44 U.S.C. 3501-3521.
Disclosure
Copies of the final rule, proposed rule, and comments received in
response to the proposed rule will be available for public inspection
through the Federal eRulemaking portal, http://regulations.gov, or by
appointment during normal business hours at: ATF Reading Room, Room 1E-
062, 99 New York Ave. NE, Washington, DC 20226; telephone: (202) 648-
8740.
List of Subjects
27 CFR Part 447
Administrative practice and procedure, Arms and munitions,
Chemicals, Customs duties and inspection, Imports, Penalties, Reporting
and recordkeeping requirements, Scientific equipment, Seizures and
forfeitures.
27 CFR Part 478
Administrative practice and procedure, Arms and munitions, Customs
duties and inspection, Exports, Imports, Intergovernmental relations,
Law enforcement officers, Military personnel, Penalties, Reporting and
recordkeeping requirements, Research, Seizures and forfeitures,
Transportation.
27 CFR Part 479
Administrative practice and procedure, Arms and munitions, Excise
taxes, Exports, Imports, Military personnel, Penalties, Reporting and
recordkeeping requirements, Seizures and forfeitures, Transportation.
Authority and Issuance
Accordingly, for the reasons discussed in the preamble, 27 CFR
parts 447, 478, and 479 are amended as follows:
PART 447--IMPORTATION OF ARMS, AMMUNITION AND IMPLEMENTS OF WAR
0
1. The authority citation for 27 CFR part 447 continues to read as
follows:
Authority: 22 U.S.C. 2778, E.O. 13637, 78 FR 16129 (Mar. 8,
2013).
0
2. In Sec. 447.11, revise the definition of ``Machinegun'' to read as
follows:
Sec. 447.11 Meaning of terms.
* * * * *
Machinegun. A ``machinegun'', ``machine pistol'',
``submachinegun'', or ``automatic rifle'' is a firearm 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. The term shall also include the frame or receiver of any
such weapon, any part designed and intended solely and exclusively, or
combination of parts designed and intended, for use in converting a
weapon into a machinegun, and any combination of parts from which a
machinegun can be assembled if such parts are in the possession or
under the control of a person. For purposes of this definition, the
term ``automatically'' as it modifies ``shoots, is designed to shoot,
or can be readily restored to shoot,'' means functioning as the result
of a self-acting or self-regulating mechanism that allows the firing of
multiple rounds through a single function of the trigger; and ``single
function of the trigger'' means a single pull of the trigger and
analogous motions. The term ``machinegun'' includes a bump-stock-type
device, i.e., a device that allows a semi-automatic firearm to shoot
more than one shot
[[Page 66554]]
with a single pull of the trigger by harnessing the recoil energy of
the semi-automatic firearm to which it is affixed so that the trigger
resets and continues firing without additional physical manipulation of
the trigger by the shooter.
* * * * *
PART 478--COMMERCE IN FIREARMS AND AMMUNITION
0
3. The authority citation for 27 CFR part 478 continues to read as
follows:
Authority: 5 U.S.C. 552(a); 18 U.S.C. 921-931; 44 U.S.C.
3504(h).
0
4. In Sec. 478.11, revise the definition of ``Machine gun'' by adding
two sentences at the end of the definition to read as follows:
Sec. 478.11 Meaning of terms.
* * * * *
Machine gun. * * * For purposes of this definition, the term
``automatically'' as it modifies ``shoots, is designed to shoot, or can
be readily restored to shoot,'' means functioning as the result of a
self-acting or self-regulating mechanism that allows the firing of
multiple rounds through a single function of the trigger; and ``single
function of the trigger'' means a single pull of the trigger and
analogous motions. The term ``machine gun'' includes a bump-stock-type
device, i.e., a device that allows a semi-automatic firearm to shoot
more than one shot with a single pull of the trigger by harnessing the
recoil energy of the semi-automatic firearm to which it is affixed so
that the trigger resets and continues firing without additional
physical manipulation of the trigger by the shooter.
* * * * *
PART 479--MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN OTHER
FIREARMS
0
5. The authority citation for 27 CFR part 479 continues to read as
follows:
Authority: 26 U.S.C. 5812; 26 U.S.C. 5822; 26 U.S.C. 7801; 26
U.S.C. 7805.
0
6. In Sec. 479.11, revise the definition of ``Machine gun'' by adding
two sentences at the end of the definition to read as follows:
Sec. 479.11 Meaning of terms.
* * * * *
Machine gun. * * * For purposes of this definition, the term
``automatically'' as it modifies ``shoots, is designed to shoot, or can
be readily restored to shoot,'' means functioning as the result of a
self-acting or self-regulating mechanism that allows the firing of
multiple rounds through a single function of the trigger; and ``single
function of the trigger'' means a single pull of the trigger and
analogous motions. The term ``machine gun'' includes a bump-stock-type
device, i.e., a device that allows a semi-automatic firearm to shoot
more than one shot with a single pull of the trigger by harnessing the
recoil energy of the semi-automatic firearm to which it is affixed so
that the trigger resets and continues firing without additional
physical manipulation of the trigger by the shooter.
* * * * *
Dated: December 18, 2018.
Matthew G. Whitaker,
Acting Attorney General.
[FR Doc. 2018-27763 Filed 12-21-18; 8:45 am]
BILLING CODE 4410-FY-P
