ATF Publishes Notice of Proposed Rulemaking to Revise
Definition of "Frame or Receiver"
-- Part II --
This alert is the second of three installments reviewing the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") Notice of Proposed Rulemaking ("NPRM") to revise the regulatory definitions of "firearm" and "frame or receiver." The official NPRM was published in 86 Fed. Reg. 27720 (May 21, 2021).
ATF drafted the NPRM with two primary objectives. One is to update the term "frame or receiver" into a living definition capable of capturing modern firearms technology and changes in terminology. In our first alert in this series (May 21, 2021), we reviewed ATF's proposed changes to the term "frame or receiver" that would move away from the rigid definition of specifying three specific fire control components (the hammer, bolt or breechblock, and firing mechanism) and replace it with language general enough to capture changes in technology.
Today's alert will focus on ATF's other objective, which is to revise the regulations to specify at what point an unregulated article becomes a "firearm" subject to the Gun Control Act of 1968 ("GCA"). As drafted, the proposed rulemaking would expand GCA controls to partially machined bodies and parts kits that have reached a certain stage they may "readily" be completed, assembled, converted, or restored to a functional state. The proposed rule adds that "partially complete" will mean a forging, casting, printing, extrusion, machined body, or similar article that has reached a stage in manufacture where it is clearly identifiable as an unfinished component part of a weapon.
As a quick refresher, the GCA defines "firearm" to mean (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm. 18 U.S.C. § 922(a)(3) (emphasis added).
Pursuant to this statutory definition, a device is a controlled firearm if it is either designed to or can readily be converted into a device that expels a projectile by the action of an explosive, or it is a frame or receiver. However, neither the GCA nor the current regulations reveal at what point an article becomes subject to the GCA controls. With this NPRM, ATF is attempting to remedy this, but a key question may be whether the proposed fixes exceed the scope of the statute.
The term "readily" is used in the GCA in several contexts, including interstate transportation of firearms at 18 U.S.C. 926A (allowing interstate transport of a firearm if it is unloaded and not readily accessible) and importability of firearms generally recognized as particularly suitable for or readily adaptable to sporting purposes (18 U.S.C. 925(d)(3)). As seen above, the term is also in the definition of "firearm" and is the key qualifier by which the statute controls not just those weapons that actually or are designed to function as firearms (expel a projectile by the action of an explosive) but also weapons which may be readily converted into a firearm. The statute, however, does not define "readily."
Currently, ATF's regulations are also silent on the definition of "readily," but because the concept of something being readily convertible into a firearm affects partially machined bodies and parts kits, just how ATF interprets "readily" is of critical importance and has been for some time. For example, ATF is often asked whether a partially machined block of metal or plastic is a "blank" or a "firearm." This is important because as soon as a that blank is a "firearm" it is subject to the GCA and that statute's interstate controls over transfer and possession, the qualifications to engage in the business, and marking and recordkeeping requirements. For manufacturers, this could impact supply chains and how business is conducted with vendors. Important operational questions must be considered, such as whether the vendor needs a license from ATF to manufacture firearms, or whether a marking variance is needed. For importers, if that blank coming in is in fact a "firearm," the GCA restrictions on firearm imports will apply.
Also impacted by the concept of "readily" and ATF’s interpretation is the market for so-called "80% receivers." The term "80% receiver" (and similar language such as "80% finished," "80% complete," and "unfinished receiver") is often used to identify an item some believe is not a controlled "firearm" under the GCA because it is only partially machined. However, none of these phrases are used in the statute or in ATF regulations, and ATF has not endorsed any of these terms. So, how ATF will interpret and apply "readily" will have a significant impact on a market that has exploded in recent years.
This brings us to the new definition of the term "readily," which ATF proposes to add to its regulations at 27 C.F.R. § 478.11 and § 479.11. As currently drafted in the NPRM at 27747, the definition is as follows:
Readily: A process that is fairly or reasonably efficient, quick, and easy, but not necessarily the most efficient, speedy, or easy process. Factors relevant in making this determination, with no single one controlling, include the following:
- (a) Time, i.e., how long it takes to finish the process;
- (b) Ease, i.e., how difficult it is to do so;
- (c) Expertise, i.e., what knowledge and skills are required;
- (d) Equipment, i.e., what tools are required;
- (e) Availability, i.e., whether additional parts are required, and how easily they can be obtained;
- (f) Expense, i.e., how much it costs;
- (g) Scope, i.e., the extent to which the subject of the process must be changed to finish it; and
- (h) Feasibility, i.e., whether the process would damage or destroy the subject of the process, or cause it to malfunction.* * * * *
In addition to defining the term "readily," ATF proposes to revise the existing definitions of "frame or receiver" and "firearm" by using "readily" to capture partially made, disassembled, or inoperable frames or receivers as well as parts kits that may be readily assembled, completed, converted or restored to expel a projectile by the action of an explosive.
Partially Complete, Disassembled, or Inoperable Frame or Receiver
Under the current regulations, there is little to no guidance on when an unregulated piece of metal or plastic becomes a controlled "firearm" under the GCA. According to ATF, "[c]larifying this issue is needed to deter the increased sale or distribution of unlicensed and unregulated partially complete or unassembled frames or receivers often sold within parts kits that can readily be completed or assembled to a functional state." NPRM at 27729.
In the NPRM, ATF explains that its longstanding approach is to examine the degree of completeness in determining whether the item is a firearm subject to the GCA controls. Of course, this will vary depending on the model of the firearm, but the rule, ATF explains, is that an unregulated piece of metal, plastic, or other material becomes a regulated frame or receiver when it has "reached a critical stage of manufacture." NPRM at 27729.
Understandably, there has been a lot of confusion and uncertainty in industry and elsewhere about where this critical line is drawn, and until now ATF has not published a standard to aid industry and the public, other than private classification rulings. So with this NPRM, ATF aims to clarify when the "critical stage of manufacture" occurs making the article a regulated "frame or receiver."
Recall from our Part I alert that ATF's proposed revisions to the definition of "frame or receiver" include four "supplements" (labeled as paragraphs (a), (b), (c), and (d) within the definition) to explain the meaning of the term for certain firearm designs and configurations. Supplement (c) for "partially complete, disassembled, or inoperable frame or receiver," explains that a controlled "frame or receiver" includes a one that "has reached a stage in manufacture where it may readily be completed, assembled, converted, or restored to a functional state." To determine this status, "the Director may consider any available instructions, guides, templates, jigs, equipment, tools, or marketing materials." The draft regulation goes on to state that the phrase "partially complete" as it modifies "frame or receiver" means "a forging, casting, printing, extrusion, machined body, or similar article that has reached a stage in manufacture where it is clearly identifiable as an unfinished component part of a weapon." NPRM at 27746.
But this is not the only definition to contain "readily." ATF also proposes revising the regulatory definition of "firearm" and broaden the scope of that term to include certain parts kits.
Currently, the regulatory definition of "firearm" at 27 C.F.R. § 478.11 mirrors the statutory definition:
"Firearm. Any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; or any destructive device; but the term shall not include an antique firearm. In the case of a licensed collector, the term shall mean only curios and relics."
In the NPRM, ATF proposes adding the following language at the end of the definition: "The term shall include a weapon parts kit that is designed to or may readily be assembled, completed, converted, or restored to expel a projectile by the action of an explosive. The term shall not include a weapon, including a weapon parts kit, in which each part defined as a frame or receiver of such weapon is destroyed." NPRM at 27741 (emphasis added). Note that ATF’s fourth proposed supplement (supplement (d)) to the definition "frame or receiver" addresses what constitutes a "destroyed frame or receiver," and this also incorporates "readily" ("the term 'destroyed' means permanently altered and "may not readily be assembled, completed, converted, or restored to a functional state."). NPRM at 27746.
Readily and the NFA
In addition to all the impacts "readily" will bring under the GCA, the term will also be incorporated into the National Firearms Act (NFA) implementing regulations at 27 CFR Part 479. The term "frame or receiver" will also be updated in Part 479 to mirror that of Part 478. Under the NFA, the definition of "machinegun" includes any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger, as well as any "frame or receiver" of any such weapon.
As with the GCA, because of the concept of something being readily restored to be a machinegun under the NFA, how ATF interprets "readily" is of critical importance.
As the statutory definition of "firearm" necessarily remains unchanged without congressional action, ATF's justification and reasoning for expanding the regulatory definition hinges on "readily" and the case law interpreting the terms "may readily be converted to expel a projectile” in 18 U.S.C. 921(a)(3)(A) and "can be readily restored to shoot" in 26 U.S.C. 5845(b). NPRM at 27730 and n. 58.
ATF's proposed addition of a newly-defined term "readily" to the definitions of "firearm" and "frame or receiver" could have far-reaching implications for all industry sectors. ATF provides an analysis on the costs and benefits of the proposed rulemaking in the NPRM beginning on page 27735. It is important to review these proposed revisions to the regulations and carefully consider how your business or your client's business will be impacted. Take advantage of the present opportunity to provide well-reasoned comments on the economic impact (costs and benefits) on your business and the feasibility of implementing the new definitions and also the appropriate methodology and data for calculating those costs and benefits.
Our next and final installment will review the practical effects of these definitional changes, including marking requirements and recordkeeping, and how the individual hobbyist will be impacted.