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03.31.2022 Legal News

ATF Regulations Reloaded

On March 17, 2022 the Williams Mullen’s Firearms Industry Group issued an alert, “ATF Regulations Coming: (re)Defining a "Firearm," Stabilizing Braces and Solvent Traps,” in which we noted the ATF has been busy and will be busy in the coming weeks. Two additional developments warrant attention.

Forced-Reset Triggers (FRTs)

On March 22, 2022 the ATF issued an open letter to all Federal Firearms Licensees (FFLs) in which the agency determined forced-reset triggers “allow a firearm to automatically expel more than one shot with a single, continuous pull of the trigger.” The result of the ATF’s determination is that some FRT devices function such that they convert a weapon into a “machine gun” as defined under 26 U.S.C. § 5845(b) and 18 U.S.C. § 921 (a)(23). Notably, 26 U.S. Code § 5845 defines the terms “firearm,” “machine gun,” “rifle,” “shotgun,” and “any other weapon.” The definition of a machine gun includes reference to “a single function of the trigger” but does not include the key phrase “continuous pull of the trigger.” This distinction (pull vs. function) will likely subject the new policy change to a legal challenge.

The letter does not identify any manufacturers or characteristics of patents explicitly, but implications of this letter are that those who manufacture or possess one of the relevant FRTs could be in violation of the National Firearms Act (NFA), be subject to federal prosecution in United States District Court, and be subject to up to $10,000 per violation and up to ten years in federal prison. In addition, one provision of the NFA could subject anyone who transfers or possesses such a device to prison for up to 10 years and to fines of up to $250,000 per person or $500,000 per organization.

This determination, unlike those made pursuant to the Rulemaking Process, did not provide industry or consumers an opportunity to submit input before the ATF issues a regulation or rule. Unlike the matters referenced in our March 17, 2022 alert, this substantive change came as a surprise to some, but not all, industry participants.

Zero Tolerance

On June 23, 2021 the Biden-Harris Administration announced a series of initiatives intended to prevent and respond to gun crime and to ensure public safety. One of those initiatives was “establishing zero tolerance for rogue gun dealers that willfully violate the law.” Published reporting indicates that numerous licensed gun dealers (FFLs) have been swept up in revocation proceedings. Under the new policy the White House announced that “absent extraordinary circumstance” the ATF will revoke the licenses of dealers the first time they “willfully” violate federal law. 

In addition, manufacturers may also be subject to increased scrutiny as their grant of authority to manufacture firearms, under the same regulatory regime, turns on the same “willful” standard. The result of these policy initiatives is likely to be more revocations and therefore fewer firearms manufacturers and retailers. 

These and other regulatory and compliance issues will be discussed at the 2022 Firearms Industry Conference (FIC), April 26 – 27 in Atlanta, Georgia where we will be joined by ATF Leadership as well as representatives from the Federal Bureau of Investigation, the Bureau of Industry and Security, the Department of State and other regulators and industry participants.