News from Reeves & Dola, LLP 
*** R|D ALERT ***

December 20, 2019
By Way of Open Letter, ATF Creates New Firearm Classification with Transfer Prohibitions

Yesterday the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) issued an Open Letter regarding the Reformation Firearm made by Franklin Armory. By way of this Open Letter, ATF creates a brand new firearm classification for the Reformation, which utilizes a barrel with straight lands and grooves rather than the conventional spiral or twisted lands and grooves that cause the projectile to spin. Finding first that the Reformation is not a "rifle" under the Gun Control Act (GCA) or the National Firearms Act (NFA) because barrel design "does not impart a spin onto a projectile when fired through the barrel," ATF further finds that "because the Reformation is not chambered for shotgun shells, it is not a shotgun as defined in the NFA." Consequently, the Reformation is a shotgun subject only to the GCA.

With this foundation, ATF issues the following determination: "Under the provisions of the GCA, if a Reformation firearm is equipped with a barrel that is less than 18-inches in overall length, the firearm is classified to be a short-barreled shotgun (SBS). When a Reformation is configured as a GCA/SBS, specific provisions of the GCA apply to the transfer of that firearm from a Federal Firearms Licensee (FFL) to a non-licensee, and to the transport of that firearm by a non-licensee in interstate or foreign commerce." 

The GCA prohibits any non-licensee from transporting in interstate or foreign commerce any short-barreled shotgun, except as specifically authorized by the Attorney General consistent with public safety and necessity (18 U.S.C. § 922(b)(4)). The GCA also prohibits any licensee from selling or delivering to any person any short-barreled shotgun except as specifically authorized by the Attorney General consistent with public safety and necessity (18 U.S.C. § 922(b)(4))

In the Open Letter, ATF acknowledges that existing regulations do not provide a mechanism to process or approve requests either from individuals who wish to transport a GCA/SBS in interstate or foreign commerce, or from FFLs who wish to to transfer a GCA/SBS to a non-licensee. Unfortunately, the Reformation is the first firearm produced and sold by an FFL that ATF has classified as a GCA/SBS. Consequently, until ATF promulgates procedures and forms to address this new type of firearm, the agency warns the public to be aware of the following:

  1. An FFL may lawfully sell/transfer a GCA/SBS, such as the Reformation, to the holder of "an appropriate FFL," which ATF does not define further other than stating a GCA/SBS cannot be transferred to a holder of a Type 06 FFL (manufacturer of ammunition other than destructive devices or armor piercing) or Type 03 FFL (collector of curios and relics).
  2. An FFL may not lawfully transfer a Reformation configured as a GCA/SBS to a non-licensee.
  3. The possessor or owner of a GCA/SBS, such as the Reformation, may not lawfully transport the firearm across state lines.
The Open Letter does not state a time frame for development of the new procedures and forms.

It is interesting that ATF has decided to publish its determination by way of an Open Letter, which does not have the force and effect of law. Indeed, ATF explains on its website that it issues Open Letters "to remind or assist licensees with understanding their regulatory compliance responsibilities under the laws and regulations administered by ATF." The website even includes a link to the memorandum issued by Attorney General Sessions on November 16, 2017, which prohibits the Department of Justice (including ATF) from publishing guidance documents that effectively bind private parties without undergoing the public notice and comment rulemaking process required under the Administrative Procedure Act.

The above alert is for informational purposes only and is not intended to be construed or used as legal advice. Receipt of this alert does not establish an attorney-client relationship.     

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