On March 29, 2018, the Department of Justice published in the Federal Register a notice of proposed rulemaking that would clarify the Administration’s position that “bump fire” stocks are “machineguns” regulated under the National Firearms Act (“NFA”) and the Gun Control Act (“GCA”). The comment period for the proposal closed on June 27, 2018. This bulletin provides an update on the progress made by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) in reviewing the comments and the process for issuing a final rule.
Summary of Bump Stock Proposal
The FLS Bulletin dated March 26, 2018, provides a thorough summary of the proposals in the notice of proposed rulemaking (“NPRM”). Briefly, the NPRM outlines the October 1, 2017, shooting in Las Vegas, Nevada, in which the shooter used AR-type rifles with attached bump-stock-type devices. The notice states that the devices were readily available in the commercial marketplace through online sales directly from the manufacturer and through multiple retailers. To address this threat to public safety, the NPRM proposes amending the definition of “machinegun” in regulations in 27 C.F.R. §§ 447.11, 478.11, and 479.11 to add the following language:
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. The term “machinegun” includes bump-stock-type devices, i.e., devices that allow 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 NPRM would overrule prior inconsistent ATF classifications of bump-stock-type devices so that all qualifying devices would be regulated as machineguns. Because machineguns manufactured after 1986 may not be lawfully possessed by persons other than law enforcement and the military, once the final rule is effective all bump-stock-type devices in the hands of consumers would be contraband. The NPRM states that consumers would have the option of destroying the devices or delivering or mailing them to the nearest ATF office. Any such devices manufactured or imported after the effective date of the final rule must be marked, registered, transferred pursuant to ATF approval, and distributed only to law enforcement and the military.
Comments on the Proposed Rule
During the comment period ATF received over 180,000 comments. The regulations.gov website indicates that 130,766 comments were submitted through the rulemaking portal. The remainder of the comments were submitted to ATF via fax, mail, or other delivery. Comments were submitted by members of the firearms industry, industry trade groups, special interest groups, law firms, Members of Congress, veterans, victims of firearms violence, and consumers. ATF officials advise that comments supporting the proposal to ban bump-stock-type devices outnumber the comments opposing the proposal.
Comments supporting the regulation of bump-stock-type devices state the following reasons:
- The devices present a threat to public safety;
- Lives would be saved if the devices are banned;
- There is no need for consumers to have the devices because they do not improve the accuracy of firearms or provide enhancements relating to sporting use;
- The devices are military in nature and should not be allowed for civilians; and
- The devices allow people to circumvent the ban on civilian possession of machineguns.
Comments opposing a ban on bump-stock-type devices fall within the following general categories:
- The devices are only accessories and should not be regulated as machineguns;
- ATF was correct in its prior (non-machinegun) classifications of the devices and should stick with those rather than bowing to political pressure;
- ATF has no legal authority to regulate the devices under the current statutory definition of “machinegun;
- Attempts to regulate bump-stock-type devices as machineguns are unconstitutional; and
- Rather than banning the devices through regulations, Congress should enact legislation.
Process for Issuing Final Rule
The Administrative Procedure Act, 5 U.S.C. § 551 et seq., requires federal agencies to publish in the Federal Register a general notice of proposed rulemaking and give interested persons an opportunity to submit comments thereon. Agencies must consider and address all comments in the final rule. Even if the comments are primarily negative, agencies are free to adopt the proposals in the NPRM as long as the final rule addresses the comments and articulates a rational basis for the proposals adopted.
ATF officials advise they have detailed additional employees to the Office of Regulatory Affairs to assist in reviewing the comments. The agency hopes to complete their review and forward a draft final rule to the Department of Justice within the near future. Review at Justice is likely to take several months, then the final rule will be submitted to the Office of Management and Budget for review.
Pursuant to an Executive Order issued in 1993, the Office of Management and Budget has 90 days to review a final rule. The 90-day time period may be extended once for an additional 30-day period. Once OMB approves the final rule, it will be published in the Federal Register. The Administrative Procedure Act requires that the final rule be published not less than 30 days before its effective date, unless the agency articulates “good cause” for making it effective sooner. If ATF publishes a final rule banning bump-stock-type devices and requiring consumers to destroy them, the agency may delay the effective date beyond 30 days. This would afford possessors more time to comply with the destroy or surrender requirements. Consumers who continue to possess unregistered bump-stock-type devices after the effective date will risk criminal prosecution and/or seizure and forfeiture of the devices.
Litigation Challenging the Final Rule
Another provision of the Administrative Procedure Act (5 U.S.C. 706) sets forth the scope of judicial review when aggrieved parties file suit challenging an agency’s final rule. The statute allows a reviewing court to set aside a final rule if it is arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, or in excess of statutory authority.
There are rumors in the firearms community of interest in filing suit challenging a final rule banning bump-stock-type devices. Domestic manufacturers of the devices would have an interest in challenging a ban because of the economic impact. Consumers who currently possess the devices and are required to destroy them or face criminal prosecution would also have standing to file suit. Finally, firearms industry groups and special interest groups representing sportsmen could participate in litigation challenging a regulation banning the devices.
Reviewing courts applying the arbitrary and capricious standard generally give significant deference to federal agencies. Federal courts will set aside a regulation only if there is a clear error of judgment, the agency failed to adequately explain its decision, or the decision clearly exceeds the scope of the statute. Plaintiffs challenging a bump-stock ban will likely have an uphill battle. Nonetheless, litigation challenging the regulation could result in a preliminary injunction that maintains the status quo and restrains ATF from implementing the regulation pending judicial review. If so, the Administration would be prevented from banning the devices until a court rules on the merits of the case.
The Department of Justice and ATF have expended considerable effort in rulemaking that will likely result in banning bump-stock-type devices. Once the final rule is effective, manufacturers of the devices may be driven out of business, as there is little or no interest in such devices by the military and law enforcement. Consumers who currently possess the devices will be required to destroy or surrender them by a specified date or risk criminal prosecution. The final rule will result in a significant economic impact on these parties. The benefit, according to the Department of Justice, is enhanced public safety.
This bulletin is for informational purposes only and is not intended to be construed or used as legal advice. Receipt of this bulletin does not establish an attorney-client relationship.
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