ATF Up To No Good Again

The Gun Control Act of 1968 imposes a “sporting test” on imported firearms. It appears according to reports that it is using that to prohibit the import of many AK and AR type pistols. While there is no real definition of “sporting” under the law, ATF examiners are claiming the weight of these pistols, the size of available magazines, and that they fire traditional rifle caliber (7.62×39 or 5.56) cartridges make the unsuitable for sporting purposes. It is also important to not that these determinations are not made public but are communicated in private letters to the importers.

From Wiley Law:

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

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

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

Incorporation of rifle sights;

Utilization of “rifle caliber ammunition” (both 5.56mm and 7.62mm have been considered as such);

Incorporation of “rifle-length barrel;”1

The “weapon’s heavy weight;”

Ability to accept magazines that range in capacity from 20 rounds to 100 rounds, “which will contribute to the overall weight of the firearm”; and

Overall length of the weapon which “creates a front-heavy imbalance when held in one hand.”

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

The ATF also has sent at least one letter to an importer stating that the prior approval of the import and determination that it met the sporting test “may require reevaluation.” You can read that as either ATF saying, “Oops, we made a mistake”, or “We changed our fickle minds and screw you.”

This redetermination of what is or isn’t a pistol could also impact anyone who has a domestic manufactured pistol of the AK, AR, CZ Scorpion, or the like. In other words, they could now be considered AOW under the purview of the National Firearms Act, subject to an extensive background check, and a tax stamp.

As Wiley Law notes:

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

Gun Owners of America has called this a “rogue, secret ATF interpretation” meant to undermine President Trump with gun owners.

They said:

“Despite an executive action from President Trump prohibiting the imposition of ‘new standards’ without express authorization by law, the apparent interpretation by a rogue and reckless ATF has implications that could criminalize millions of otherwise non-violent and law-abiding gun owners,” Erich Pratt, Senior Vice President, for Gun Owners of America (GOA) said. “This continues to demonstrate why the National Firearms Act should be repealed and the agency itself should be fully dismantled.

“It also demonstrates why President Trump recently issued an Executive Order creating a new classification of ‘Schedule F’ employees. This new classification allows the President to ‘drain the swamp’ by firing policy-making employees who would rather go rogue than follow the law.

“The recent Honey Badger gun ban and revelation of absurd private classification rulings represents a pro-Biden ‘October Surprise’ by an out-of-control, anti-gun ATF. By disregarding orders to stand down, rogue ATF agents seem prepared to help usher in a Joe Biden Administration, especially because their actions appear to be purposefully timed to anger President Trump’s base immediately before an election.

I am taking a class from Montgomery Community College on gun shop management. Our homework this week was researching ATF interpretations of pistol arm braces among other things. Talk about timely!

4 thoughts on “ATF Up To No Good Again”

  1. Part of the problem is the lack of transparency in the determinations. Because they’re not made public, you have no baseline prior to applying yourself, nor any way of making a good faith effort to comply with the regulations.

    I propose a “sting” operation of sorts.

    Have several companies individually apply to import models of AR or AK pistols that are identical except for the manufacturer marks and serial numbers (bonus points if you can get the same manufacturer to do them all and just mark the batches differently). It has to be enough companies that it’s unlikely the same reviewing ATF agent/team gets them all.

    Collect the determination letters from all those companies afterward, and compare and contrast the responses.

    If some are allowed but others aren’t — remembering that the guns are identical except for the markings — then you have objective proof the “sporting test”, as applied, is 100% arbitrary bovine excrement.

    Why is the Honey Badger prohibited but other AR pistols with arm braces allowed? No reason other than the ATF likes to f**k with people.

    Then start the lawsuits, and make the ATF defend the arbitrary determinations in court.

    Just an idea.

  2. On the second part; the possibility of certain handguns coming under the restrictions of the NFA, I says maybe.
    The issue seems to be how BATFEIEIO determines importability and their correspondence appears to have been with importers. That’s been a problem ever since 1968 when -among other guns- imports and sales of the Walther PPK were stopped (and the imported PPKs came into existence) until Walther started making the PPK in country.

    On this latter subject, I think people are going off on a tangent with a strong seasoning of Chicken Little. However, I am in whole hearted agreement that the BatBoyz like to run amok and need their ears pinned back.

    1. Biden has explicitly promised to put semi-auto firearms and their magazines under the NFA so this is not GOA hyperventilating. Not sure whether this takes legislation or whether it can be done administratively.

      1. 1, My previous comment was not directed at GOA, but on Wiley law’s speculation on what ATF could do about imports and how that might affect guns made in the U.S.

        There was similar speculation back when the Remington & Mossberg 12 & 20 gauge ‘firearms’ were introduced and some people were pontificating that ATF could & would go and classify them as Destructive Devices, yet here we are.

        2, Biden’s febrile fantasy about semi-autos & magazines being brought under NFA restriction would take legislation.
        And, if Feinstein couldn’t get her ‘pet’ assault weapon and magazine ban passed into law when the dems had the WH, House and Senate, I think it not impossible, but unlikely, that such a more restrictive scheme would make it into law. But that’s just me.

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