82 FR 60929 - Application of the Definition of Machinegun to “Bump Fire” Stocks and Other Similar Devices

DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives

Federal Register Volume 82, Issue 246 (December 26, 2017)

The Department of Justice anticipates issuing a Notice of Proposed Rulemaking (NPRM) that would interpret the statutory definition of ``machinegun'' in the National Firearms Act of 1934 and Gun Control Act of 1968 to clarify whether certain devices, commonly known as ``bump fire'' stocks, fall within that definition. Before doing so, the Department and ATF need to gather information and comments from the public and industry regarding the nature and scope of the market for these devices.

[Federal Register Volume 82, Number 246 (Tuesday, December 26, 2017)]
[Proposed Rules]
[Pages 60929-60932]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-27898]


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DEPARTMENT OF JUSTICE

Bureau of Alcohol, Tobacco, Firearms, and Explosives

27 CFR Parts 478 and 479

[Docket No. 2017R-22]
RIN 1140-AA52


Application of the Definition of Machinegun to ``Bump Fire'' 
Stocks and Other Similar Devices

AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).

ACTION: Advance notice of proposed rulemaking; request for comments.

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SUMMARY: The Department of Justice anticipates issuing a Notice of 
Proposed Rulemaking (NPRM) that would interpret the statutory 
definition of ``machinegun'' in the National Firearms Act of 1934 and 
Gun Control Act of 1968 to clarify whether certain devices, commonly 
known as ``bump fire'' stocks, fall within that definition. Before 
doing so, the Department and ATF need to gather information and 
comments from the public and industry regarding the nature and scope of 
the market for these devices.

DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before January 25, 2018. Commenters should be aware 
that the electronic Federal Docket Management System will not accept 
comments after Midnight Eastern Standard Time on the last day of the 
comment period.

ADDRESSES: You may submit comments, identified by docket number (2017R-
22), by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
     Fax: (202) 648-9741.
     Mail: Vivian Chu, Mailstop 6N-518, Office of Regulatory 
Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, 
Firearms, and Explosives, 99 New York Ave. NE, Washington DC 20226. 
ATTN: 2017R-22.
    Instructions: All submissions received must include the agency name 
and docket number for this advance notice of proposed rulemaking 
(ANRPM). All comments received will be posted without change to the 
Federal eRulemaking portal, http://www.regulations.gov, including any 
personal information provided. For detailed instructions on submitting 
comments and additional information on the rulemaking process, see the 
``Public Participation'' section of the SUPPLEMENTARY INFORMATION 
section of this document.

FOR FURTHER INFORMATION CONTACT: Vivian Chu, Office of Regulatory 
Affairs, Enforcement Programs 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. Background

    The Attorney General is responsible for enforcing the Gun Control 
Act of 1968 (GCA), as amended, 18 U.S.C. 921 et seq., and the National 
Firearms Act of 1934 (NFA), as amended, 26 U.S.C. 5841 et seq.\1\ The 
Attorney General has delegated the responsibility for administering and 
enforcing these laws to the Director of ATF subject to the direction of 
the Attorney General and the Deputy Attorney General. See 28 CFR 0.130. 
Regulations in 27 CFR parts 478 and 479 implement the GCA and NFA.
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    \1\ NFA provisions still refer to the ``Secretary of the 
Treasury.'' However, the Homeland Security Act of 2002, Public Law 
107-296 (2002), 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, this document refers to the Attorney General.
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    The NFA defines ``machinegun'' as 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.'' The term also includes ``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

[[Page 60930]]

combination of parts from which a machinegun can be assembled if such 
parts are in the possession or under the control of a person.'' 26 
U.S.C. 5845(b).
    The GCA defines ``machinegun'' by reference to the NFA definition. 
The GCA regulates the transfer and possession of machineguns under 18 
U.S.C. 922(o). Section 922(o) makes it unlawful for any person to 
possess a machinegun unless it was lawfully possessed prior to the 
effective date of the section or is under the authority of the federal 
government or a state.
    Those engaged in the business of manufacturing, importing, or 
dealing in NFA firearms must be registered with the Attorney General. 
26 U.S.C. 5801, 5802. When the NFA was enacted in 1934, only a handful 
of firearms qualified as machineguns, such as the Thompson submachine 
gun. Over time, however, as firearms technologies have advanced, 
manufacturers and the public have attempted to develop firearms, 
triggers, and other devices that permit shooters to use semiautomatic 
rifles to replicate automatic fire without converting these rifles into 
``machineguns'' within the meaning of the statute. Consequently, 
questions have arisen about whether these types of devices should be 
classified as machineguns (or machinegun conversion devices) pursuant 
to section 5845(b). See, e.g., Internal Revenue Ruling 55-528 (1955) 
(considering whether types of ``Gatling Guns'' constitute machineguns); 
ATF Ruling 2006-2 (examining a firearms accessory device that, when 
activated by a single pull of the trigger, initiated an automatic 
firing cycle that continued until release).
    ATF has issued a number of private letters to individuals and 
manufacturers who voluntarily submitted such devices for classification 
under the NFA and GCA. In addition, ATF has promulgated a regulation 
that defines ``machinegun,'' See 28 CFR 478.11, but that regulation 
mirrors the statutory language of the NFA and GCA and provides no 
further interpretation.

II. Las Vegas Music Festival Attack and Requests To Regulate Bump 
Stock-Type Devices

    ``Bump fire'' stocks (bump stocks) are devices used with a 
semiautomatic firearm to increase the firearm's cyclic firing rate to 
mimic nearly continuous automatic fire. Since 2008, ATF has issued a 
total of 10 private letters in which it classified various bump stock 
devices to be unregulated parts or accessories, and not machineguns or 
machinegun conversion devices as defined in section 5845(b) of the NFA 
or section 921(a)(23) of the GCA.
    On October 1, 2017, 58 people were killed and several hundred were 
wounded in Las Vegas, Nevada, by a shooter firing one or more AR-type 
rifles affixed with a particular bump stock device. In 2010, the 
manufacturer of this particular device had supplied ATF with a sample 
of the bump stock, and ATF had examined and classified it as an 
unregulated firearm part, not subject to either the GCA or NFA.
    Following the Las Vegas shooting, a significant amount of public 
attention has been focused on bump stock-type devices. ATF has received 
correspondence from the general public and from members of both houses 
of Congress requesting that ATF re-examine its past classification 
decisions concerning bump stock devices to determine whether they 
should be classified as machineguns within the meaning of section 
5845(b). This ANPRM is the initial step in a regulatory process to 
interpret the definition of machinegun to clarify whether certain bump 
stock devices fall within that definition. If, in a subsequent 
rulemaking, the definition of machinegun under section 5845(b) is 
interpreted to include certain bump stock devices, ATF would then have 
a basis to re-examine its prior classification and rulings. See Encino 
Motorcars v. Navarro, 136 S. Ct. 2117, 2125 (2016); FCC v. Fox 
Television Stations, 556 U.S. 502, 515 (2009).

III. Requests for Public Input

    This ANPRM is intended to gather relevant information that is 
otherwise not readily available to ATF regarding the scope and nature 
of the market for bump stock type devices. Because ATF does not have 
the authority to regulate firearm parts and accessories, ATF does not 
know, with the exception of one well-known manufacturer, how many of 
the individuals or companies that received classification letters from 
ATF ever engaged in commercial production and distribution of these 
devices. Similarly, ATF does not know how many companies or individuals 
who did not submit bump stock type devices to ATF for voluntary 
classification determinations are now engaging or have previously been 
engaged in this business. Further, the individuals and companies who 
submitted bump stock type devices to ATF for voluntary classification 
determinations identified some specific target markets for such 
devices, such as individuals with disabilities, but ATF does not have 
any information about whether those markets or other markets ultimately 
materialized for the devices. Consequently, ATF seeks the following 
information:

Manufacturers

    Are you, or have you been, involved in the manufacturing of bump 
stock devices? If so:
    1. In what part(s) of the manufacturing process, are/were you 
involved?
    2. In what calendar years are/were you involved in the 
manufacturing process?
    3. What is the wholesale price of the bump stock devices produced 
by the manufacturing process with which you are involved?
    4. In each calendar year in which you have operated, how many bump 
stock devices were produced by the manufacturing process with which you 
are/were involved? Of this number, how many devices were sold to (a) 
retailers/resellers, and (b) directly to consumers?
    5. What were your approximate gross receipts for the sale of these 
bump stock devices in each calendar year (from 2014--present)?
    6. For what use or uses have you marketed bump stock devices?
    7. If ATF classified bump stock devices as ``machineguns'' under 
the Gun Control Act of 1968, as amended, and the National Firearms Act 
of 1934, as amended, what would you expect to be the impact on your 
gross receipts for calendar year 2018?
    8. If ATF classified bump stock devices as ``machineguns'' under 
the Gun Control Act of 1968, as amended, and the National Firearms Act 
of 1934, as amended, what other economic impact would you expect (e.g., 
storage, unsellable inventory)?
    9. What costs do you expect to be associated with the disposition 
of existing bump stock device inventory?
    10. If ATF classified bump stock devices as ``machineguns'' under 
the Gun Control Act of 1968, as amended, and the National Firearms Act 
of 1934, as amended, do you believe that there would be a viable 
(profitable) law-enforcement and/or military market for these devices? 
If so, please describe that market and your reasons for believing such 
a viable market exists.

Retailers

    Are you, or have you been, involved in the retail sale of bump 
stock devices? If so:
    11. In what calendar years are/were you involved?
    12. In each calendar year, how many bump stock devices did you 
sell?
    13. In each calendar year, what was the average retail price of the 
bump stock devices you sold?

[[Page 60931]]

    14. In each calendar year (from 2014--present) what were your 
approximate gross receipts derived from the retail sale of bump stock 
devices?
    15. For what use or uses have you marketed bump stock devices?
    16. In the 2018 calendar year, how many bump stock devices do you 
anticipate you will sell, assuming that such devices remain classified 
by ATF as an unregulated firearm part? What do you expect will be the 
average price at which those bump stock devices will be sold?
    17. If ATF classified bump stock devices as ``machineguns'' under 
the Gun Control Act of 1968, as amended, and the National Firearms Act 
of 1934, as amended, what would you expect to be the impact on your 
costs/expenses, gross receipts for calendar year 2018?
    18. If ATF classified bump stock devices as ``machineguns'' under 
the Gun Control Act of 1968, as amended, and the National Firearms Act 
of 1934, as amended, what other economic impact would you expect (e.g., 
storage, unsellable inventory)?
    19. What costs do you expect to be associated with the disposition 
of existing bump stock device inventory?
    20. If ATF classified bump stock devices as ``machineguns'' under 
the Gun Control Act of 1968, as amended, and the National Firearms Act 
of 1934, as amended, do you believe that there would be a viable 
(profitable) law-enforcement and/or military market for these devices? 
If so, please describe that market and your reasons for believing such 
a viable market exists.

Consumers

    21. In your experience, where have you seen these devices for sale 
and which of these has been the most common outlet from which consumers 
have purchased these devices (e.g., brick and mortar retail stores; 
online vendors; gun shows or similar events; or private sales between 
individuals)?
    22. Based on your experience or observations, what is (or has been) 
the price range for these devices?
    23. For what purposes are the bump stock devices used or 
advertised?

IV. Statutory and Executive Order Review

    This ANPRM has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), The Principles of Regulation, in accordance with Executive Order 
13563, ``Improving Regulation and Regulatory Review,'' section 1(b), 
General Principles of Regulation, and in accordance with Executive 
Order 13771, ``Reducing Regulation and Controlling Regulatory Costs.''
    The Department has determined that this ANPRM is a significant 
regulatory action under Executive Order 12866, section 3(f), and 
accordingly this ANPRM has been reviewed by the Office of Management 
and Budget. However, this action does not propose or impose any 
requirements. The ANPRM is being published to seek information from the 
public about the practical impacts of interpreting the statutory 
definition of ``machinegun'' such that certain bump stock type devices 
may fall under that definition.
    Furthermore, the requirements of the Regulatory Flexibility Act 
(RFA) do not apply to this action because, at this stage, it is an 
ANPRM and not a ``rule'' as defined in 5 U.S.C. 601. Following review 
of the comments received in response to this ANPRM, if ATF proceeds 
with a notice or notices of proposed rulemaking regarding this matter, 
ATF will conduct all relevant analyses as required by statute or 
Executive Order.

V. Public Participation

A. Comments Sought

    ATF requests comments on this ANPRM from all interested persons 
with information about the enumerated questions. ATF specifically 
requests comments on the questions listed above, on the costs or 
benefits of the proposal in this ANPRM, and on the appropriate 
methodology and data for calculating those costs and benefits. Each 
commenter or commenting party should include the identifying number of 
the specific question(s) to which it is responding. ATF does not expect 
commenters to respond to every question; please feel free to respond 
only to those questions you feel you are able to answer.
    All comments must reference the docket number 2017R-22, be legible, 
and include the commenter's complete first and last name and full 
mailing address. ATF will not consider, or respond to, comments that do 
not meet these requirements or comments containing profanity. In 
addition, if ATF cannot read your comment due to technical difficulties 
and cannot contact you for clarification, ATF may not be able to 
consider your comment.
    ATF will take into account, as appropriate, the comments received 
on or before the closing date, and will give comments received after 
that date the same consideration if it is practical to do so, but 
assurance of consideration cannot be given except as to comments 
received on or before the closing date. ATF will not acknowledge 
receipt of comments.

B. Confidentiality

    ATF will make all comments meeting the requirements of this section 
available for public viewing at ATF and on the internet as part of the 
eRulemaking initiative, and subject to the Freedom of Information Act. 
ATF will not redact personal identifying information that appears 
within the comment and it will appear on the internet.

C. Proprietary or Confidential Business Information

    A commenter may submit to ATF information identified as proprietary 
or confidential business information. The commenter shall place any 
portion of a comment that is proprietary or confidential business 
information under law on pages separate from the balance of the comment 
with each page prominently marked ``PROPRIETARY OR CONFIDENTIAL 
BUSINESS INFORMATION'' at the top of the page.
    ATF will not make proprietary or confidential business information 
submitted in compliance with these instructions available when 
disclosing the comments that it received, but will disclose that the 
commenter provided proprietary or confidential business information 
that ATF is holding in a separate file to which the public does not 
have access. If ATF receives a request to examine or copy this 
information, it will treat it as any other request under the Freedom of 
Information Act (5 U.S.C. 552). In addition, ATF will disclose such 
proprietary or confidential business information to the extent required 
by other legal process.

D. Submitting Comments

    Submit comments in any of three ways (but do not submit the same 
comments multiple times or by more than one method).
     Federal eRulemaking Portal: We strongly recommend that you 
submit your comments to ATF via the Federal eRulemaking portal. Visit 
http://www.regulations.gov and follow the instructions for submitting 
comments. Comments will be posted within a few days of being submitted. 
However, if large volumes of comments are being processed 
simultaneously, your comment may not be viewable for up to several 
weeks. Please keep the comment tracking number that regulations.gov 
provides after you have successfully uploaded your comment.
     Mail: Send written comments to the address listed in the 
ADDRESSES section

[[Page 60932]]

of this document. Written comments must appear in minimum 12 point font 
size (.17 inches), include the commenter's complete first and last name 
and full mailing address, be signed, and may be of any length.
     Facsimile: Submit comments by facsimile transmission to 
(202) 648-9741. Faxed comments must (1) Be legible and appear in 
minimum 12-point font size (.17 inches); (2) Be on 8\1/2\'' x 11'' 
paper; and (3) Be signed and contain the commenter's complete first and 
last name and full mailing address.
Disclosure
    Copies of this advance notice, and the comments received will be 
available at http://www.regulations.gov (search for Docket No. 2017R-
22) and for public inspection by appointment during normal business 
hours at: ATF Reading Room, Room 1E-063, 99 New York Avenue NE, 
Washington, DC 20226; telephone: (202) 648-8740.

List of Subjects

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, and 
Transportation.

Authority and Issuance

    This document is issued under the authority of 5 U.S.C. 552(a); 18 
U.S.C. 921 et seq.; 26 U.S.C. 5841 et seq.

    Dated: December 19, 2017.
Thomas E. Brandon,
Deputy Director.
[FR Doc. 2017-27898 Filed 12-21-17; 4:15 pm]
 BILLING CODE 4410-FY-P