66514 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

DEPARTMENT OF JUSTICE Washington, DC 20226; telephone: (202) NFA, the term ‘‘machinegun’’ means 648–7070. ‘‘any weapon which shoots, is designed Bureau of Alcohol, Tobacco, , SUPPLEMENTARY INFORMATION: to shoot, or can be readily restored to and Explosives I. Executive Summary shoot, automatically more than one A. Summary of the Regulatory shot, without manual reloading, by a 27 CFR Parts 447, 478, and 479 B. Summary of Costs and Benefits single function of the .’’ 26 U.S.C. II. Background 5845(b). The term ‘‘machinegun’’ also [Docket No. 2018R–22F; AG Order No. A. Regulatory Context includes ‘‘the frame or receiver of any 4367–2018] B. Las Vegas Shooting such weapon’’ or any part or C. Advance Notice of Proposed combination of parts designed and RIN 1140–AA52 Rulemaking III. Notice of Proposed Rulemaking intended ‘‘for use in converting a Bump--Type Devices A. Prior Interpretations of ‘‘Single Function weapon into a machinegun,’’ and ‘‘any of the Trigger’’ and ‘‘Automatically’’ combination of parts from which a AGENCY: Bureau of Alcohol, Tobacco, B. Re-Evaluation of Bump-Stock-Type machinegun can be assembled if such Firearms, and Explosives; Department of Devices parts are in the possession or under the Justice. C. Proposed Definition of ‘‘Single Function control of a person.’’ Id. This definition of the Trigger’’ uses the key terms ‘‘single function of ACTION: Final rule. D. Proposed Definition of ‘‘Automatically’’ E. Proposed Clarification That the the trigger’’ and ‘‘automatically,’’ but SUMMARY: The Department of Justice is Definition of ‘‘Machinegun’’ Includes these terms are not defined in the amending the regulations of the Bureau Bump-Stock-Type Devices statutory text. of Alcohol, Tobacco, Firearms, and F. Amendment of 27 CFR 479.11 The definition of ‘‘machinegun’’ in 27 Explosives (ATF) to clarify that bump- G. Amendment of 27 CFR 478.11 CFR 447.11, promulgated pursuant to stock-type devices—meaning ‘‘bump H. Amendment of 27 CFR 447.11 the portion of section 38 of the Arms fire’’ stocks, slide-fire devices, and IV. Analysis of Comments and Department Export Control Act (AECA) (22 U.S.C. devices with certain similar Responses for Proposed Rule 2778) delegated to the Attorney General characteristics—are ‘‘machineguns’’ as A. Comments Generally Supporting the by section 1(n)(ii) of Executive Order Rule defined by the of 13637 (78 FR 16129), is similar. B. Particular Reasons Raised in Support of Currently, the definition of 1934 and the Control Act of 1968 the Rule because such devices allow a shooter of C. Comments Generally Opposing the Rule ‘‘machinegun’’ in § 447.11 provides that a semiautomatic to initiate a D. Specific Issues Raised in Opposition to a ‘‘‘machinegun’, ‘machine ’, continuous firing cycle with a single the Rule ‘submachinegun’, or ‘automatic ’ is pull of the trigger. Specifically, these E. ATF Suggested Alternatives a firearm originally designed to fire, or devices convert an otherwise F. Other Alternatives capable of being fired fully semiautomatic firearm into a G. Proposed Rule’s Statutory and Executive automatically by a single pull of the machinegun by functioning as a self- Order Review trigger.’’ H. Affected Population acting or self-regulating mechanism that In 2006, ATF concluded that certain I. Costs and Benefits bump-stock-type devices qualified as harnesses the recoil energy of the J. Regulatory Flexibility Act semiautomatic firearm in a manner that machineguns under the NFA and GCA. K. Miscellaneous Comments Specifically, ATF concluded that a allows the trigger to reset and continue L. Comments on the Rulemaking Process firing without additional physical V. Final Rule device attached to a semiautomatic manipulation of the trigger by the VI. Statutory and Executive Order Review firearm that uses an internal spring to shooter. Hence, a semiautomatic firearm A. Executive Orders 12866, 13563, and harness the force of a firearm’s recoil so to which a bump-stock-type device is 13771 that the firearm shoots more than one attached is able to produce automatic B. Executive Order 13132 shot with a single pull of the trigger is fire with a single pull of the trigger. C. Executive Order 12988 a machinegun. Between 2008 and 2017, D. Regulatory Flexibility Act With limited exceptions, the Gun however, ATF also issued classification E. Small Business Regulatory Enforcement decisions concluding that other bump- Control Act, as amended, makes it Fairness Act of 1996 unlawful for any person to transfer or stock-type devices were not F. Congressional Review Act machineguns, primarily because the possess a machinegun unless it was G. Unfunded Mandates Reform Act of 1995 lawfully possessed prior to the effective H. Paperwork Reduction Act of 1995 devices did not rely on internal springs or similar mechanical parts to channel date of the statute. The bump-stock-type I. Executive Summary devices covered by this final rule were recoil energy. Decisions issued during that time did not include extensive legal not in existence prior to the effective A. Summary of the Regulatory Action analysis relating to the definition of date of the statute, and therefore will be The current regulations at §§ 447.11, ‘‘machinegun.’’ ATF undertook a review prohibited when this rule becomes 478.11, and 479.11 of title 27, Code of of its past classifications and effective. Consequently, under the final Federal Regulations (CFR), contain determined that those conclusions did rule, current possessors of these devices 1 definitions for the term ‘‘machinegun.’’ not reflect the best interpretation of will be required to destroy the devices The definitions used in 27 CFR 478.11 ‘‘machinegun’’ under the NFA and GCA. or abandon them at an ATF office prior and 479.11 match the statutory ATF decided to promulgate a rule that to the effective date of the rule. definition of ‘‘machinegun’’ in the would bring clarity to the definition of DATES: This rule is effective March 26, National Firearms Act of 1934 (NFA), as ‘‘machinegun’’—specifically with 2019. amended, and the Gun Control Act of respect to the terms ‘‘automatically’’ and FOR FURTHER INFORMATION CONTACT: 1968 (GCA), as amended. Under the ‘‘single function of the trigger,’’ as those Vivian Chu, Office of Regulatory Affairs, terms are used to define ‘‘machinegun.’’ Enforcement Programs and Services, 1 Regulations implementing the relevant statutes As an initial step in the process of spell the term ‘‘’’ rather than Bureau of Alcohol, Tobacco, Firearms, ‘‘machinegun.’’ E.g., 27 CFR 478.11, 479.11. For promulgating a rule, on December 26, and Explosives, U.S. Department of convenience, this notice uses ‘‘machinegun’’ except 2017, the Department of Justice Justice, 99 New York Ave. NE, when quoting a source to the contrary. (Department) published in the Federal

VerDate Sep<11>2014 22:19 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66515

Register an advance notice of proposed described above. The Department, subject to the direction of the Attorney rulemaking titled ‘‘Application of the however, has revised the definition of General and the Deputy Attorney Definition of Machinegun to ‘Bump ‘‘single function of the trigger’’ to mean General. See 28 CFR 0.130(a)(1)–(2). Fire’ Stocks and Other Similar Devices.’’ ‘‘single pull of the trigger’’ and Accordingly, the Department and ATF 82 FR 60929. Subsequently, on March analogous motions, taking into account have promulgated regulations 29, 2018, the Department published in that there are other methods of initiating implementing both the NFA and the the Federal Register a notice of an automatic firing sequence that do not GCA. See 27 CFR parts 478, 479. In proposed rulemaking (NPRM) titled require a pull. This final rule also particular, ATF for decades ‘‘Bump-Stock-Type Devices.’’ 83 FR informs current possessors of bump- promulgated rules governing ‘‘the 13442. stock-type devices of the proper procedural and substantive The NPRM proposed to amend the methods of disposal, including requirements relative to the importation, regulations at 27 CFR 447.11, 478.11, destruction by the owner or manufacture, making, exportation, and 479.11 to clarify that bump-stock- abandonment to ATF. identification and registration of, and type devices are ‘‘machineguns’’ as the dealing in, machine .’’ 27 CFR B. Summary of Costs and Benefits defined by the NFA and GCA because 479.1; see, e.g., United States v. Dodson, such devices allow a shooter of a ATF estimates the total undiscounted 519 F. App’x 344, 348–49 & n.4 (6th Cir. semiautomatic firearm to initiate a cost of this rule at $312.1 million over 2013) (acknowledging ATF’s role in continuous firing cycle with a single 10 years. The total 7% discount cost is interpreting the NFA’s definition of pull of the trigger. Specifically, these estimated at $245.5 million, and the ‘‘machinegun’’); F.J. Vollmer Co. v. devices convert an otherwise discounted costs would be $32.8 million Higgins, 23 F.3d 448, 449–51 (D.C. Cir. semiautomatic firearm into a and $35.0 million, annualized at 3% 1994) (upholding an ATF determination machinegun by functioning as a self- and 7% respectively. The estimate regarding machinegun receivers). Courts acting or self-regulating mechanism that includes costs to the public for loss of have recognized ATF’s leading harnesses the recoil energy of the property ($102.5 million); costs of regulatory role with respect to firearms, semiautomatic firearm in a manner that forgone future production and sales including in the specific context of allows the trigger to reset and continue ($198.9 million); costs of disposal ($9.4 classifying devices as machineguns firing without additional physical million); and government costs ($1.3 under the NFA. See, e.g., York v. Sec’y manipulation of the trigger by the million). Unquantified costs include of Treasury, 774 F.2d 417, 419–20 (10th shooter. Hence, a semiautomatic firearm potential loss of wages for employees of Cir. 1985). to which a bump-stock-type device is bump-stock-type device manufacturers, The GCA defines ‘‘machinegun’’ by attached is able to produce automatic notification to bump-stock-type device referring to the NFA definition,3 which fire with a single pull of the trigger. 83 owners of the need to destroy the includes ‘‘any weapon which shoots, is FR at 13447–48. devices, and loss of future usage by the designed to shoot, or can be readily The NPRM proposed regulatory owners of bump-stock-type devices. restored to shoot, automatically more definitions for the statutory terms ATF did not calculate any cost savings than one shot, without manual ‘‘single function of the trigger’’ and for this final rule. reloading, by a single function of the ‘‘automatically,’’ and amendments of This final rule clarifies that bump- trigger.’’ 26 U.S.C. 5845(b). The term the regulatory definition of stock-type devices are machineguns that ‘‘machinegun’’ also includes ‘‘the frame ‘‘machinegun’’ for purposes of clarity. are subject to the NFA and GCA. The or receiver of any such weapon’’ or any Specifically, the NPRM proposed to provisions of those statutes addressing part, or combination of parts, designed amend the definitions of ‘‘machinegun’’ machineguns are designed to increase and intended ‘‘for use in converting a in §§ 478.11 and 479.11, define the term public safety by, among other things, weapon into a machinegun,’’ and any ‘‘single function of the trigger’’ to mean limiting legal access to them. Consistent combination of parts from which a ‘‘single pull of the trigger,’’ and define with the NFA and GCA, therefore, a machinegun can be assembled if such the term ‘‘automatically’’ to mean ‘‘as desired outcome of this final rule is parts are in the possession or under the the result of a self-acting or self- increased public safety. control of a person. Id. With limited regulating mechanism that allows the exceptions, the GCA prohibits the firing of multiple rounds through a II. Background transfer or possession of machineguns single pull of the trigger.’’ 83 FR at A. Regulatory Context under 18 U.S.C. 922(o). 13447–48. The NPRM also proposed to In 1986, Congress passed the Firearms The Attorney General is responsible clarify that the definition of Owners’ Protection Act (FOPA), Public for enforcing the NFA, as amended, and ‘‘machinegun’’ includes a device that Law 99–308, 100 Stat. 449, which the GCA, as amended.2 This allows a semiautomatic firearm to shoot included a provision that effectively responsibility includes the authority to more than one shot with a single pull of froze the number of legally transferrable promulgate regulations necessary to the trigger by harnessing the recoil machineguns to those that were enforce the provisions of the NFA and energy of the semiautomatic firearm to registered before the effective date of the GCA. See 18 U.S.C. 926(a); 26 U.S.C. which it is affixed so that the trigger statute. 18 U.S.C. 922(o). Due to the resets and continues firing without 7801(a)(2)(A), 7805(a). The Attorney fixed universe of ‘‘pre-1986’’ additional physical manipulation of the General has delegated the responsibility machineguns that may be lawfully trigger by the shooter (commonly known for administering and enforcing the transferred by nongovernmental entities, as bump-stock-type devices). Id. at NFA and GCA to the Director of ATF, the value of those machineguns has 13447. Finally, the NPRM proposed to steadily increased over time. This price 2 NFA provisions still refer to the ‘‘Secretary of harmonize the definition of the Treasury.’’ 26 U.S.C. ch. 53. However, the premium on automatic weapons has ‘‘machinegun’’ in § 447.11 with the Homeland Security Act of 2002, Public Law 107– spurred inventors and manufacturers to definitions in 27 CFR parts 478 and 479, 296, 116 Stat. 2135, transferred the functions of develop firearms, triggers, and other as those definitions would be amended. ATF from the Department of the Treasury to the devices that permit shooters to use Department of Justice, under the general authority Id. at 13448. of the Attorney General. 26 U.S.C. 7801(a)(2); 28 semiautomatic to replicate The goal of this final rule is to amend U.S.C. 599A(c)(1). Thus, for ease of reference, this the relevant regulatory definitions as notice refers to the Attorney General. 3 18 U.S.C. 921(a)(23).

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66516 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

automatic fire without converting these complying with any other Federal constitute machineguns under the rifles into ‘‘machineguns’’ under the regulations applicable to firearms. statutory definition. Consistent with its NFA and GCA. ATF began receiving authority to ‘‘reconsider and rectify’’ B. Las Vegas Shooting classification requests for such firearms, potential classification errors, Akins v. triggers, and other devices that replicate On October 1, 2017, a shooter United States, 312 F. App’x 197, 200 automatic fire beginning in 1988. ATF attacked a large crowd attending an (11th Cir. 2009) (per curiam), ATF has noted a significant increase in such outdoor concert in Las Vegas, Nevada. reviewed its earlier determinations for requests since 2004, often in connection By using several AR-type rifles with bump-stock-type devices issued with rifle models that were, until 2004, attached bump-stock-type devices, the between 2008 and 2017 and concluded defined as ‘‘semiautomatic assault shooter was able to fire several hundred that those determinations did not weapons’’ and prohibited under the rounds of in a short period include extensive legal analysis of the Public Safety and Recreational Firearms of time, killing 58 people and wounding statutory terms ‘‘automatically’’ or Use Protection Act, 18 U.S.C. 921(a)(30) approximately 500. The bump-stock- ‘‘single function of the trigger.’’ The (sunset effective Sept. 13, 2004). type devices recovered from the scene Department decided to move forward ATF received classification requests included two distinct, but functionally with the rulemaking process to clarify pertaining to bump-stock-type devices. equivalent, model variations from the the meaning of these terms, which are Shooters use bump-stock-type devices same manufacturer. These types of used in the NFA’s statutory definition of with semiautomatic firearms to devices were readily available in the ‘‘machinegun.’’ commercial marketplace through online accelerate the firearms’ cyclic firing rate sales directly from the manufacturer, C. Advance Notice of Proposed to mimic automatic fire. These devices and through multiple retailers. Rulemaking replace a rifle’s standard stock and free The Las Vegas bump-stock-type On December 26, 2017, the the weapon to slide back and forth devices, as well as other bump-stock- Department, as an initial step in the rapidly, harnessing the energy from the type devices available on the market, all process of promulgating a Federal firearm’s recoil either through a utilize essentially the same functional regulation interpreting the definition of mechanism like an internal spring or in design. They are designed to be affixed ‘‘machinegun’’ with respect to bump- conjunction with the shooter’s to a semiautomatic long gun (most stock-type devices, published an maintenance of pressure (typically commonly an AR-type rifle or an AK- advance notice of proposed rulemaking constant forward pressure with the non- type rifle) in place of a standard, (ANPRM) in the Federal Register. trigger hand on the barrel-shroud or stationary rifle stock, for the express Application of the Definition of fore-grip of the rifle, and constant purpose of allowing ‘‘rapid fire’’ Machinegun to ‘‘Bump Fire’’ Stocks and rearward pressure on the device’s operation of the semiautomatic firearm Other Similar Devices, 82 FR 60929. extension ledge with the shooter’s to which they are affixed. They are The ANPRM solicited comments trigger finger). configured with a sliding shoulder stock concerning the market for bump-stock- In 2006, ATF concluded that certain molded (or otherwise attached) to a type devices and manufacturer and bump-stock-type devices qualified as pistol-grip/handle (or ‘‘chassis’’) that retailer data. Specifically, the machineguns under the NFA and GCA. includes an extension ledge (or ‘‘finger Department asked a series of questions Specifically, ATF concluded that rest’’) on which the shooter places the of consumers, retailers, and devices attached to semiautomatic trigger finger while shooting the firearm. manufacturers of bump-stock-type firearms that use an internal spring to The devices also generally include a devices regarding the cost of bump- harness the force of the recoil so that the detachable rectangular receiver module stock-type devices, average gross firearm shoots more than one shot with (or ‘‘bearing interface’’) that is placed in receipts of sales, and the volume and a single pull of the trigger are the receiver well of the device’s pistol- cost of manufacturing, as well as input machineguns. Between 2008 and 2017, grip/handle to assist in guiding and on the potential effect of a rulemaking however, ATF also issued classification regulating the recoil of the firearm when affecting bump-stock-type devices, decisions concluding that other bump- fired. Bump-stock-type devices, including viable markets or the cost of stock-type devices were not including those with the disposing of inventory. Public comment machineguns, including a device aforementioned characteristics, are on the ANPRM concluded on January submitted by the manufacturer of the generally designed to channel recoil 25, 2018. While ATF received over bump-stock-type devices used in the energy to increase the rate of fire of a 115,000 comments, the vast majority of discussed semiautomatic firearm from a single these comments were not responsive to below. Those decisions indicated that trigger pull. Accordingly, when a bump- the ANPRM. semiautomatic firearms modified with stock-type device is affixed to a On February 20, 2018, the President these bump-stock-type devices did not semiautomatic firearm, the device issued a memorandum to the Attorney fire ‘‘automatically,’’ and thus were not harnesses and directs the firearm’s General concerning ‘‘bump fire’’ stocks ‘‘machineguns,’’ because the devices did recoil energy to slide the firearm back and similar devices. Application of the not rely on internal springs or similar and forth so that the trigger Definition of Machinegun to ‘‘Bump mechanical parts to channel recoil automatically re-engages by ‘‘bumping’’ Fire’’ Stocks and Other Similar Devices, energy. (For further discussion of ATF’s the shooter’s stationary finger without 83 FR 7949. The memorandum noted prior interpretations, see Part III.A.) additional physical manipulation of the that the Department of Justice had Because ATF has not regulated these trigger by the shooter. already ‘‘started the process of certain types of bump-stock-type Following the mass shooting in Las promulgating a Federal regulation devices as machineguns under the NFA Vegas, ATF received correspondence interpreting the definition of or GCA, they have not been marked from members of the United States ‘machinegun’ under Federal law to with a serial number or other Congress, as well as nongovernmental clarify whether certain type identification markings. Individuals, organizations, requesting that ATF devices should be illegal.’’ Id. The therefore, have been able to legally examine its past classifications and President then directed the Department purchase these devices without determine whether bump-stock-type of Justice, working within established undergoing background checks or devices available on the market legal protocols, ‘‘to dedicate all

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66517

available resources to complete the conclusion because the best agency’s decision was arbitrary and review of the comments received [in interpretation of the phrase ‘‘single capricious under the Administrative response to the ANPRM], and, as function of the trigger’’ includes a Procedure Act (APA). Akins v. United expeditiously as possible, to propose for ‘‘single pull of the trigger.’’ The Akins States, No. 8:08–cv–988, slip op. at 7– notice and comment a rule banning all Accelerator qualified as a machinegun 8 (M.D. Fla. Sept. 23, 2008). The United devices that turn legal weapons into because ATF determined through States District Court for the Middle machineguns.’’ Id. testing that when the device was District of rejected the plaintiff’s installed on a semiautomatic rifle III. Notice of Proposed Rulemaking challenge, holding that ATF was within (specifically a Ruger Model 10–22), it its authority to reconsider and change On March 29, 2018, the Department resulted in a weapon that ‘‘[with] a its interpretation of the phrase ‘‘single published in the Federal Register a single pull of the trigger initiates an function of the trigger’’ in the NFA’s notice of proposed rulemaking (NPRM) automatic firing cycle that continues titled ‘‘Bump-Stock-Type Devices,’’ 83 until the finger is released, the weapon statutory definition of ‘‘machinegun.’’ FR 13442 (ATF Docket No. 2017R–22), malfunctions, or the ammunition supply Id. at 14. The court further held that the proposing changes to the regulations in is exhausted.’’ Akins v. United States, language of the statute and the 27 CFR 447.11, 478.11, and 479.11. The No. 8:08–cv–988, slip op. at 5 (M.D. Fla. legislative history supported ATF’s comment period for the proposed rule Sept. 23, 2008) (internal quotation interpretation of the statutory phrase concluded on June 27, 2018. marks omitted). ‘‘single function of the trigger’’ as synonymous with ‘‘single pull of the A. Prior Interpretations of ‘‘Single When issuing ATF Ruling 2006–2, Function of the Trigger’’ and ATF set forth a detailed description of trigger.’’ Id. at 11–12. The court ‘‘Automatically’’ the components and functionality of the concluded that in ATF Ruling 2006–2, Akins Accelerator and devices with ATF had set forth a ‘‘reasoned analysis’’ In the NPRM, the Department similar designs. The ruling determined for the application of that new reviewed ATF’s history of classifying that the phrase ‘‘single function of the interpretation to the Akins Accelerator bump-stock-type devices through trigger’’ in the statutory definition of and similar devices, including the need agency rulings and relevant litigation. In ‘‘machinegun’’ was best interpreted to particular, it described how ATF to ‘‘protect the public from dangerous mean a ‘‘single pull of the trigger.’’ ATF firearms.’’ Id. at 12. published ATF Ruling 2006–2, Ruling 2006–2, at 2 (citing National ‘‘Classification of Devices Exclusively Firearms Act: Hearings Before the The United States Court of Appeals Designed to Increase the Rate of Fire of Comm. on Ways and Means, House of for the Eleventh Circuit affirmed the a Semiautomatic Firearm.’’ The ruling Representatives, Second Session on H.R. district court’s decision, holding that explained that ATF had received 9066, 73rd Cong., at 40 (1934)). ATF ‘‘[t]he interpretation by the Bureau that requests from ‘‘several members of the further indicated that this interpretation the phrase ‘single function of the trigger’ firearms industry to classify devices that would apply when the agency classified means a ‘single pull of the trigger’ is are exclusively designed to increase the devices designed to increase the rate of consonant with the statute and its rate of fire of a semiautomatic firearm.’’ fire of semiautomatic firearms. Thus, legislative history.’’ Akins, 312 F. App’x ATF Ruling 2006–2, at 1. Prior to ATF concluded in ATF Ruling 2006–2 at 200. The Eleventh Circuit further issuing ATF Ruling 2006–2, ATF had that devices exclusively designed to concluded that ‘‘[b]ased on the examined a device called the ‘‘Akins increase the rate of fire of semiautomatic operation of the Accelerator, the Bureau Accelerator.’’ To operate the device, the firearms were machineguns if, ‘‘when had the authority to ‘reconsider and shooter initiated an automatic firing activated by a single pull of the trigger, rectify’ what it considered to be a sequence by pulling the trigger one [such devices] initiate[ ] an automatic classification error.’’ Id. time, which in turn caused the rifle to firing cycle that continues until either recoil within the stock, permitting the the finger is released or the ammunition In ten letter rulings between 2008 and trigger to lose contact with the finger supply is exhausted.’’ Id. at 3. Finally, 2017, ATF applied the ‘‘single pull of and manually reset. Springs in the because the ‘‘single pull of the trigger’’ the trigger’’ interpretation to other Akins Accelerator then forced the rifle interpretation constituted a change from bump-stock-type devices. Like the forward, forcing the trigger against the ATF’s prior interpretations of the phrase Akins Accelerator, these other bump- finger, which caused the weapon to ‘‘single function of the trigger,’’ ATF stock-type devices allowed the shooter discharge the ammunition. The recoil Ruling 2006–2 concluded that ‘‘[t]o the to fire more than one shot with a single and the spring-powered device thus extent previous ATF rulings are pull of the trigger. However, ATF caused the firearm to cycle back and inconsistent with this determination, ultimately concluded that these devices forth, impacting the trigger finger they are hereby overruled.’’ Id. did not qualify as machineguns because, without further input by the shooter Following its reclassification of the in ATF’s view, they did not while the firearm discharged multiple Akins Accelerator as a machinegun, ‘‘automatically’’ shoot more than one shots. The device was advertised as able ATF determined and advised owners of shot with a single pull of the trigger. to fire approximately 650 rounds per Akins Accelerator devices that removal ATF also applied its ‘‘single pull of the minute. See id. at 2. and disposal of the internal spring—the trigger’’ interpretation to other trigger ATF initially reviewed the Akins component that caused the rifle to slide actuators, two-stage triggers, and other Accelerator in 2002 and determined it forward in the stock—would render the devices submitted to ATF for not to be a machinegun because ATF device a non-machinegun under the interpreted the statutory term ‘‘single statutory definition. Thus, a possessor classification. Depending on the method function of the trigger’’ to refer to a could retain the device by removing and of operation, some such devices were single movement of the trigger. But ATF disposing of the spring, in lieu of classified to be machineguns that were undertook further review of the device destroying or surrendering the device. required to be registered in the National based on how it actually functioned In May 2008, the inventor of the Firearms Registration and Transfer when sold and later determined that the Akins Accelerator filed a lawsuit Record (NFRTR) and could not be Akins Accelerator should be classified challenging ATF’s classification of his transferred or possessed, except in as a machinegun. ATF reached that device as a machinegun, claiming the

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66518 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

limited circumstances, under 18 U.S.C. extensively examined the meaning of acting or self-regulating mechanism 922(o).4 ‘‘automatically.’’ For instance, some that, after a single pull of the trigger, In the NPRM, the Department also letter rulings concluded that certain harnesses the recoil energy of the noted that prior ATF rulings concerning devices were not machineguns because semiautomatic firearm in a manner that bump-stock-type devices did not they did not ‘‘initiate[ ] an automatic allows the trigger to reset and continue provide substantial or consistent legal firing cycle that continues until either firing without additional physical analysis regarding the meaning of the the finger is released or the ammunition manipulation of the trigger by the term ‘‘automatically,’’ as it is used in the supply is exhausted,’’ without further shooter. Hence, a semiautomatic firearm NFA and GCA. For example, ATF defining the term ‘‘automatically.’’ E.g., to which a bump-stock-type device is Ruling 2006–2 concluded that devices Letter for Michael Smith from ATF’s attached is able to produce automatic like the Akins Accelerator initiated an Firearm Technology Branch Chief (April fire with a single pull of the trigger. ‘‘automatic’’ firing cycle because, once 2, 2012). Other letter rulings concluded initiated by a single pull of the trigger, that certain bump-stock-type devices C. Proposed Definition of ‘‘Single ‘‘the automatic firing cycle continues were not machineguns because they Function of the Trigger’’ until the finger is released or the lacked any ‘‘automatically functioning The Department proposed to interpret ammunition supply is exhausted.’’ ATF mechanical parts or springs and the phrase ‘‘single function of the Ruling 2006–2, at 1. In contrast, other perform[ed] no mechanical function[s] trigger’’ to mean ‘‘a single pull of the ATF letter rulings between 2008 and when installed,’’ again without further trigger,’’ as it considered it the best 2017 concluded that bump-stock-type defining the term ‘‘automatically’’ in interpretation of the statute and because devices that enable a semiautomatic this context. E.g., Letter for David it reflected ATF’s position since 2006. firearm to shoot more than one shot Compton from ATF’s Firearm The Supreme Court in Staples v. United with a single function of the trigger by Technology Branch Chief (June 7, 2010). States, 511 U.S. 600, 602 n.1 (1994), harnessing a combination of the recoil indicated that a machinegun within the and the maintenance of pressure by the B. Re-Evaluation of Bump-Stock-Type Devices NFA ‘‘fires repeatedly with a single pull shooter do not fire ‘‘automatically.’’ Of of the trigger.’’ This interpretation is the rulings issued between 2008 and In the NPRM, the Department also consistent with how the phrase 2017, ATF provided different reviewed the functioning of ‘‘single function of the trigger’’ was explanations for why certain bump- semiautomatic firearms, describing that understood at the time of the NFA’s stock-type devices were not ordinarily, to operate a semiautomatic enactment in 1934. For instance, in a machineguns, but none of them firearm, the shooter must repeatedly congressional hearing leading up to the pull and release the trigger to allow it NFA’s enactment, the National Rifle 4 Examples of recent ATF classification letters to reset, so that only one shot is fired Association’s then-president testified relying on the ‘‘single pull of the trigger’’ with each pull of the trigger. 83 FR at that a gun ‘‘which is capable of firing interpretation to classify submitted devices as 13443. It then explained that bump- machineguns include the following: more than one shot by a single pull of stock-type devices, like the ones used in • On April 13, 2015, ATF issued a classification the trigger, a single function of the letter regarding a device characterized as a ‘‘positive Las Vegas, are designed to channel trigger, is properly regarded, in my reset trigger,’’ designed to be used on a recoil energy to increase the rate of fire semiautomatic AR-style rifle. The device consisted opinion, as a machine gun.’’ National of semiautomatic firearms from a single Firearms Act: Hearings Before the of a support/stock, secondary trigger, secondary trigger pull. Id. Shooters can maintain a trigger link, pivot toggle, shuttle link, and shuttle. Committee on Ways and Means, H.R. continuous firing cycle after a single ATF determined that, after a single pull of the 9066, 73rd Cong., 2nd Sess., at 40 trigger, the device utilized recoil energy generated pull of the trigger by directing the recoil (1934). Furthermore, and as noted from firing a to fire a subsequent energy of the discharged rounds into the above, the Eleventh Circuit in Akins projectile. ATF noted that ‘‘a ‘single function of the space created by the sliding stock trigger’ is a single pull,’’ and that the device utilized concluded that ATF’s interpretation of (approximately 1.5 inches) in a ‘‘single function of the trigger’’ because the ‘‘single function of the trigger’’ to mean shooter need not release the trigger to fire a constrained linear rearward and forward a ‘‘single pull of the trigger’’ ‘‘is subsequent projectile, and instead ‘‘can maintain paths. Id. These bump-stock-type constant pressure through a single function of the consonant with the statute and its devices are generally designed to trigger.’’ legislative history.’’ 312 F. App’x at 200. • operate with the shooter shouldering the On October 7, 2016, ATF issued a classification No other court has held otherwise.5 letter regarding two devices described as ‘‘LV–15 stock of the device (in essentially the Trigger Reset Devices.’’ The devices, which were same manner a shooter would use an 5 The NPRM also explained that the term ‘‘pull’’ designed to be used on an AR-type rifle, were unmodified semiautomatic shoulder essentially identical in design and function and can be analogized to ‘‘push’’ and other terms that were submitted by the same requester (per the stock), maintaining constant forward describe activation of a trigger. For instance, ATF requester, the second device included ‘‘small pressure with the non-trigger hand on used the term ‘‘pull’’ in classifying the Akins improvements that have come as the result of the barrel-shroud or fore-grip of the Accelerator because that was the manner in which further development since the original rifle, and maintaining the trigger finger the firearm’s trigger was activated with the device. submission’’). The devices were each powered by But the courts have made clear that whether a a rechargeable battery and included the following on the device’s ledge with constant trigger is operated through a ‘‘pull,’’ ‘‘push,’’ or components: A self-contained trigger mechanism rearward pressure. Id. The device itself some other action such as a flipping a switch, does with an electrical connection, a modified two- then harnesses the recoil energy of the not change the analysis of the functionality of a position semiautomatic AR–15 type selector lever, firearm. For example, in United States v. Fleischli, a rechargeable battery pack, a grip assembly/trigger firearm, providing the primary impetus 305 F.3d 643, 655–56 (7th Cir. 2002), the Seventh guard with electrical connections, and a piston that for automatic fire. Id. Circuit rejected the argument that a switch did not projected forward through the lower rear portion of In light of its reassessment of the constitute a trigger for purposes of assessing the trigger guard and pushed the trigger forward as relevant statutory terms ‘‘single function whether a firearm was a machinegun under the the firearm cycled. ATF held that ‘‘to initiate the of the trigger’’ and ‘‘automatically,’’ the NFA, because such an interpretation of the statute firing . . . a shooter must simply pull the trigger.’’ would lead to ‘‘the absurd result of enabling It explained that although the mechanism pushed NPRM stated ATF’s conclusion that persons to avoid the NFA simply by using weapons the trigger forward, ‘‘the shooter never releases the bump-stock-type devices are that employ a button or switch mechanism for trigger. Consistent with [the requester’s] ‘‘machineguns’’ as defined in the NFA firing.’’ See also United States v. Camp, 343 F.3d explanation, ATF demonstrated that the device because they convert an otherwise 743, 745 (5th Cir. 2003) (‘‘ ‘To construe ‘‘trigger’’ to fired multiple with a ‘‘single function of mean only a small lever moved by a finger would the trigger’’ because a single pull was all that was semiautomatic firearm into a be to impute to Congress the intent to restrict the required to initiate and maintain a firing sequence. machinegun by functioning as a self- term to apply only to one kind of trigger, albeit a

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66519

D. Proposed Definition of includes a device that allows a H. Amendment of 27 CFR 447.11 ‘‘Automatically’’ semiautomatic firearm to shoot more The Arms Export Control Act (AECA), The Department also proposed to than one shot with a single pull of the as amended, does not define the term interpret the term ‘‘automatically’’ to trigger by harnessing the recoil energy of ‘‘machinegun’’ in its key provision, 22 mean ‘‘as the result of a self-acting or the semiautomatic firearm to which it is U.S.C. 2778.6 However, regulations in self-regulating mechanism that allows affixed so that the trigger resets and 27 CFR part 447 that implement the the firing of multiple rounds through a continues firing without additional AECA include a similar definition of single pull of the trigger.’’ That physical manipulation of the trigger by ‘‘machinegun,’’ and explain that interpretation reflects the ordinary the shooter. The Department explained machineguns, submachineguns, meaning of that term at the time of the that when a shooter who has affixed a machine , and fully automatic NFA’s enactment in 1934. The word bump-stock-type device to a rifles fall within Category I(b) of the U.S. ‘‘automatically’’ is the adverbial form of semiautomatic firearm pulls the trigger, Munitions Import List when those ‘‘automatic,’’ meaning ‘‘[h]aving a self- that movement initiates a firing defense articles are permanently acting or self-regulating mechanism that sequence that produces more than one imported. See 27 CFR 447.11, 447.21. performs a required act at a shot. And that firing sequence is Currently, the definition of predetermined point in an operation[.]’’ ‘‘automatic’’ because the device ‘‘machinegun’’ in § 447.11 provides that Webster’s New International Dictionary harnesses the firearm’s recoil energy in ‘‘[a] ‘machinegun’, ‘’, 187 (2d ed. 1934); see also 1 Oxford a continuous back-and-forth cycle that ‘submachinegun’, or ‘’ is English Dictionary 574 (1933) (defining allows the shooter to attain continuous a firearm originally designed to fire, or ‘‘Automatic’’ as ‘‘[s]elf-acting under firing after a single pull of the trigger, so capable of being fired fully conditions fixed for it, going of itself.’’). long as the trigger finger remains automatically by a single pull of the Relying on these definitions, the stationary on the device’s ledge (as trigger.’’ The NPRM proposed to United States Court of Appeals for the designed). Accordingly, these devices harmonize the AECA’s regulatory Seventh Circuit interpreted the term are included under the definition of definition of machinegun with the ‘‘automatically’’ as used in the NFA as ‘‘machinegun’’ and, therefore, come definitions in 27 CFR parts 478 and 479, ‘‘delineat[ing] how the discharge of within the purview of the NFA. as those definitions would be amended multiple rounds from a weapon occurs: F. Amendment of 27 CFR 479.11 by the proposed rule. As the result of a self-acting mechanism . . . set in motion by a single function The regulatory definition of ‘‘machine IV. Analysis of Comments and of the trigger and . . . accomplished gun’’ in 27 CFR 479.11 matches the Department Responses for Proposed without manual reloading.’’ United statutory definition of ‘‘machinegun’’ in Rule States v. Olofson, 563 F.3d 652, 658 (7th the NFA. The definition includes the In response to the NPRM, ATF Cir. 2009). So long as the firearm is terms ‘‘single function of the trigger’’ received over 186,000 comments. capable of producing multiple rounds and ‘‘automatically,’’ but those terms are Submissions came from individuals, with a single pull of the trigger until the not defined in the statutory text. The including foreign nationals, lawyers, trigger finger is removed, the NPRM proposed to define these terms in and government officials, as well as ammunition supply is exhausted, or the order to clarify the meaning of various interest groups. Overall, 119,264 firearm malfunctions, the firearm shoots ‘‘machinegun.’’ Specifically, the comments expressed support for the ‘‘automatically’’ irrespective of why the Department proposed to amend the proposed rule, 66,182 comments firing sequence ultimately ends. Id. definition of ‘‘machine gun’’ in 27 CFR expressed opposition, and for 657 (‘‘[T]he reason a weapon ceased firing is 479.11 by: comments, the commenter’s position not a matter with which § 5845(b) is 1. Defining the term ‘‘single function could not be determined. The concerned.’’). Olofson thus requires of the trigger’’ to mean ‘‘single pull of commenters’ grounds for support and only that the weapon shoot multiple the trigger’’; opposition, along with specific concerns rounds with a single function of the 2. defining the term ‘‘automatically’’ and suggestions, are discussed below. trigger ‘‘as the result of a self-acting to mean ‘‘as the result of a self-acting or mechanism,’’ not that the self-acting self-regulating mechanism that allows A. Comments Generally Supporting the mechanism produces the firing the firing of multiple rounds through a Rule sequence without any additional action single pull of the trigger’’; and Comments Received by the shooter. This definition 3. adding a sentence to clarify that a Of the 119,264 comments received in accordingly requires that the self-acting ‘‘machine gun’’ includes a device that support of the rule, 14,618 used one or self-regulating mechanism allows the allows a semiautomatic firearm to shoot form letter in support of the proposed firing of multiple rounds through a more than one shot with a single pull of rule; 51,454 were petitions or petition single function of the trigger. the trigger by harnessing the recoil signatures compiled by an organization energy of the semiautomatic firearm to E. Proposed Clarification That the and individuals; and 53,192 were which it is affixed so that the trigger Definition of ‘‘Machinegun’’ Includes unique comments. Many of the 53,192 resets and continues firing without Bump-Stock-Type Devices unique comments used repetitious additional physical manipulation of the The Department also proposed, based declarations of support or a single trigger by the shooter (commonly known on the interpretations discussed above, sentence or phrase, declaring, in as a bump-stock-type device). to clarify that the term ‘‘machinegun’’ essence, (1) ban bump stocks now or I G. Amendment of 27 CFR 478.11 very common kind. The language [in 18 U.S.C. 6 Under the AECA, the President has the authority 922(o)] implies no intent to so restrict the The GCA and its implementing to designate which items are controlled as defense meaning[.]’ ’’ (quoting United States v. Jokel, 969 regulations in 27 CFR part 478 reference articles for purposes of importation and F.2d 132, 135 (5th Cir. 1992) (emphasis removed))). the NFA’s definition of machinegun. exportation. 22 U.S.C. 2778(a)(1). The President Examples of machineguns that operate through a has, in turn, delegated to the Attorney General the trigger activated by a push include the Browning Accordingly, the NPRM proposed to authority to promulgate regulations designating the design, M2 .50 caliber, the Vickers, the Maxim, and make the same amendments in 27 CFR defense articles controlled for permanent the M134 hand-fired Minigun. 478.11 that were proposed for § 479.11. importation, including machineguns.

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66520 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

support a ban; (2) common sense gun modify semiautomatic rifles with bump- exist—potentially including persons reform or gun control now; (3) bump stock-type devices so that they operate with criminal or terrorist intentions— stocks should be outlawed; or (4) I fully with a similar rate of fire as fully and made their potential to threaten support this proposed rule. Others automatic rifles poses a substantial risk public safety obvious.’’ 83 FR at 13447. supporting the rule expressed disbelief to public safety and that the continued For further discussion of benefits, see as to how such devices were legal and presence of these devices puts all Part VI.A. that it seemed to be a ‘‘no brainer,’’ communities at risk. Some commenters especially after Las Vegas, to prevent said that research shows that nations 2. Unnecessary for Civilians to Own anyone from possessing an item that that have reasonable gun restrictions Comments Received allows the shooter to inflict mass experience fewer mass shootings. Of the total supporting comments, at carnage. Several commenters stated that Additionally, many students and least 25,135 of the commenters opined they were present at or knew people numerous individuals identified as that bump-stock-type devices have no who were directly affected by the Las former or current teachers expressed place in civil society and are Vegas shooting and urged finalization of support for the rule, with some citing unnecessary for ordinary persons to the proposed rule on bump-stock-type fear that their school could be the next own. One of the primary reasons devices. Some commenters identified as site of a mass shooting or stating that thousands expressed support for the active or former , while other they do not want to continue seeing regulation was their view that bump- individuals noted their support for a their students in constant fear of the stock-type devices have no legitimate prohibition on bump-stock-type devices next active shooter. uses for hunting or sporting purposes, while identifying as gun owners and Several commenters also noted that target shooting, or self-protection. Many gun enthusiasts, strong supporters of the bump-stock-type devices are a danger to of these commenters emphasized that Second Amendment, or members of a police forces, with one commenter, a the devices cause a decrease in shooter particular pro-gun interest group. For retired law enforcement officer, accuracy, and therefore are not useful instance, one commenter wrote, ‘‘As an declaring that regulating bump-stock- for hunting and target shooting, and are FFL [] dealer, type devices is an issue of public safety inappropriate for use in self or home gun owner and collector, I am writing to and will save the lives of those who are support the ban on the sale of bump in law enforcement. Similarly, other defense. For example, one commenter stocks.’’ Another explained that he has commenters, including a former military rhetorically stated, ‘‘[W]hat law abiding been a member of the National Rifle physician, stated that the rapid fire gun owner who is responsible for every Association (NRA) for over 30 years and enabled by bump-stock-type devices they shoot would want to reduce loves hunting and shooting but believes significantly increases the casualties in their accuracy?’’ Some of these ‘‘there is zero justification for bump an attack and puts police officers who commenters further asserted that stocks,’’ because the ‘‘only thing bump respond at greater risk. In light of the because the devices enable rapid but stocks are good for is creating a kill Las Vegas shooting, many commenters inaccurate fire, they pose a particular zone.’’ argued that, given that bump-stock-type risk to large-scale public events, such as devices are easily attainable and the Las Vegas concert. Many Department Response inexpensive items, prohibiting these commenters, including those identifying The Department acknowledges the devices is a needed step to reduce gun as former or active military members, commenters’ support for the proposed deaths or prevent future mass shootings. commented that only the military or law rule. The rule clarifies the regulatory Many individuals, including several enforcement should have access to definition of ‘‘machinegun’’ to include State and local government officials and bump-stock-type devices or that there bump-stock-type devices, and, therefore, or public health groups, was no need for civilians to have access subjects them to the restrictions expressed the urgent need for ATF to to them. imposed by the NFA and GCA. As 18 finalize the proposed rule in order to Department Response U.S.C. 922(o), with limited exceptions, protect the public and children, prohibits the possession of machineguns especially given the frequency of mass The Department acknowledges that were not lawfully possessed before shootings in recent months and the supporters’ comments on limiting the the effective date of the statute, current likelihood that a potential perpetrator possession of bump-stock-type devices possessors of bump-stock-type devices will seek out these devices. to military or law enforcement. Such a limitation is consistent with the will be obligated to cease possessing Department Response these devices. Firearms Owners’ Protection Act The Department acknowledges that a (FOPA), Public Law 99–308, 100 Stat. B. Particular Reasons Raised in Support bump-stock-type device combined with 449, which makes it unlawful for any of the Rule a semiautomatic firearm can empower a person to transfer or possess a 1. Threat to Public Safety single individual to take many lives in machinegun that was not lawfully a single incident. The reason for the possessed before the effective date of the Comments Received Department’s classification change is statute. FOPA made an exception for Over 36,000 of the supporting that ATF, upon review (discussed in governmental entities, allowing for the comments expressly cited public safety, Part III), believes that bump-stock-type ‘‘transfer to or by, or possession by or saving lives (or specifically children’s devices must be regulated because they under the authority of, the United States lives), reducing gun deaths and future satisfy the statutory definition of or any department or agency thereof or mass shootings, or protecting law ‘‘machinegun’’ in the NFA and GCA. By a State, or a department, agency, or enforcement as the reason for making clear that these devices are political subdivision thereof.’’ 18 U.S.C. supporting a rule that would restrict subject to the restrictions that the NFA 922(o)(2)(A). Congress provided this possession of bump-stock-type devices. and GCA place on machineguns, this exemption because it recognized the A majority of these comments, rule reflects the public safety goals of necessity for the military and law including submissions from those statutes. Indeed, the NPRM stated enforcement to continue to use and professional medical associations, that the Las Vegas tragedy made possess these types of weapons. This declared that allowing persons to ‘‘individuals aware that these devices final rule is consistent with

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66521

implementing the requirements of the 4. Constitutional Under the Second invoking popular support for NFA and GCA provisions that regulate Amendment responsible gun limitations. Many of possession of machineguns. Comments Received these commenters stated this measure would be a sensible first step for gun 3. Consistent With the Intent of the More than 2,100 commenters in safety and that ATF should act where National Firearms Act support of the rule argued that a rule Congress has not acted. One gun safety prohibiting possession of bump-stock- Comments Received organization noted that while type devices does not conflict with the congressional measures have stalled, More than 27,000 of the supporting Second Amendment. Many opined that ATF is doing what it can to refine rules. comments urged issuance of the final the Framers of the Constitution did not At least 1,300 commenters indicated rule because bump-stock-type devices intend for these types of devices, which that ATF should choose saving children and other similar conversion devices can inflict mass carnage, to be protected and the public welfare over the interests were meant to circumvent the by the Second Amendment. of the gun industry and pro-gun Commenters expressed the view that restrictions of the NFA and GCA, as organizations, naming in particular the because persons living in the 18th NRA. One commenter wrote, ‘‘It’s time bump-stock-type devices enable century used muskets capable of firing shooters to transform their guns into we quit cow-towing [sic] to the NRA only one shot before requiring a long and considered all the rest of us and our automatic weapons. Some commenters reloading process, our forefathers would asserted that it is useless to have a law children especially. Being afraid to go to not have wanted bump-stock-type school is unAmerican which is what the against automatic weapons yet allow devices to be readily available. Other insistence by the NRA on no gun control manufacturers to legally produce and commenters, including those who is—unAmerican.’’ Many supporting sell an item with the sole purpose of declared themselves to be strong commenters echoed these sentiments. turning a firearm into an automatic supporters of the Second Amendment, weapon. Many of these commenters also stated that prohibiting bump-stock-type Department Response stated that bump-stock-type devices devices was consistent with the Second In light of the legal analysis of the violate the spirit of the law and that this Amendment. term ‘‘machinegun’’ set forth above, the loophole should be closed by ATF as Several commenters noted language Department agrees with commenters from the majority opinion in District of quickly as possible. Further, at least that it is necessary to clarify that the Columbia v. Heller, 554 U.S. 570 (2008). 1,675 of the supporting comments stated term ‘‘machinegun’’ includes bump- There, the Supreme Court declared that that the proposed rule is consistent with stock-type devices. Congress granted the the Second Amendment protects an the purposes of the NFA and the intent Attorney General authority to issue individual right to bear arms for of Congress. Specifically, these rules to administer the NFA and GCA, traditional lawful purposes such as self- commenters opined that the regulation and the Attorney General has delegated defense and hunting. However, the ‘‘enforces machinegun laws that date to ATF the authority to administer and Court also stated, ‘‘Like most rights, the enforce these statutes and to implement back many decades’’ and that ‘‘it will right secured by the Second the related regulations accordingly. The have the same dramatic benefit Amendment is not unlimited. From originally intended by those Blackstone through the 19th-century Department and ATF have initiated this foundational laws.’’ cases, commentators and courts rulemaking to clarify the regulatory interpretation of the NFA and GCA. Department Response routinely explained that the right was not a right to keep and carry any C. Comments Generally Opposing the The Department acknowledges weapon whatsoever in any manner Rule supporters’ comments that bump-stock- whatsoever and for whatever purpose.’’ Comments Received type devices were meant to circumvent Id. at 626. Commenters further the restrictions of the NFA and GCA. summarized the Court’s conclusions A total of 66,182 comments were Prior to this rule, ATF issued that limitations on the right to keep and received that opposed the rule. classification letters that determined carry arms are supported by the Approximately 40,806 of those that some bump-stock-type devices were historical tradition of prohibiting the comments were form submissions by not ‘‘machineguns’’ as defined by the carrying of ‘‘dangerous and unusual the National Association for Gun Rights (NAGR) on behalf of its members, with NFA. Those decisions, however, did not weapons.’’ Id. at 627. Commenters argued that the Supreme Court’s Second 25,874 submitted on paper petitions and include extensive legal analysis, as Amendment decisions support the 14,932 submitted by facsimile. The described in Part III. Upon reexamining proposed rule. remaining 25,376 opposing comments these classifications, this final rule were individually submitted. Many of Department Response promulgates definitions for the terms the commenters identified as lawyers, ‘‘single function of the trigger’’ and The Department acknowledges judges, industry groups, or members of ‘‘automatically’’ as those terms are used supporters’ concerns and agrees that law enforcement or the military. There in the statutory definition of regulation of bump-stock-type devices is were several commenters who stated ‘‘machinegun.’’ ATF believes these permissible under the Second they did not own or had no interest in definitions represent the best Amendment. For discussion of the owning a bump-stock-type device but interpretation of the statute. Therefore, Department’s position on the still objected to the rule on various recognizing that a bump-stock-type constitutionality of this final rule under grounds, including that it is device used with a semiautomatic the Second Amendment, see Part unconstitutional and only punishes law- firearm enables a shooter to shoot IV.D.1.a. abiding owners of bump-stock-type automatically more than one shot by a 5. Absence of Congressional Action devices. Of the 25,376 comments single function of the trigger, the individually submitted, 12,636 used one purpose of this rule is to clarify that Comments Received of three form letters; the remaining such devices are machineguns under the Over 1,500 comments in support 12,740 were unique comments. A NFA. urged action on this final rule by majority of these commenters raised

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66522 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

specific, detailed objections to the commenter reasoned that the people—as protected by the Second Amendment. In agency’s proposal and the premise upon the unorganized militia—are likewise the course of explaining the Court’s which the regulation is based, whereas constitutionally entitled to access such holding in United States v. Miller, 307 several hundred of the unique weapons. U.S. 174 (1939) (upholding Federal comments were limited to a few Numerous commenters cited the prohibition of short-barreled shotguns), sentences opposing the regulation Supreme Court’s decision in Heller, 554 the Court noted that a portion of Miller without further detail. For example, U.S. 570, which declared that the could be ‘‘[r]ead in isolation’’ to ‘‘mean these types of comments simply Second Amendment protects an that only those weapons useful in declared, in essence, (1) no ban, or a ban individual right to bear arms. warfare are protected’’ by the Second is unnecessary; (2) individuals’ Second Commenters also referred to the Amendment. Heller, 554 U.S. at 624. Amendment rights should not be Supreme Court’s decision in Caetano v. But ‘‘[t]hat would be a startling reading infringed; or (3) I oppose any additional Massachusetts, 136 S. Ct. 1027 (2016) of the opinion,’’ the Court continued, gun regulations. (per curiam), stating that this decision ‘‘since it would mean that the National makes clear that weapons in ‘‘common Firearms Act’s restrictions on Department Response use’’ cannot be banned. One commenter machineguns . . . might be The Department acknowledges the pointed out that if bump-stock-type unconstitutional, machineguns being commenters’ objections to the proposed devices are now machineguns, then useful in warfare in 1939.’’ Id. Heller rule but disagrees with assertions that there are an additional 519,927 thus made clear that machineguns, like the rule infringes on the constitutional machineguns that are currently owned short-barreled shotguns, are ‘‘weapons right to keep and bear arms and typically by law-abiding citizens for not typically possessed by law-abiding punishes law-abiding gun owners. The lawful purposes. This amount, the citizens for lawful purposes,’’ and thus Department believes that bump-stock- commenter argued, surpasses the fall outside the scope of the Second type devices satisfy the definition of 200,000 stun guns found to trigger a Amendment as historically understood. ‘‘machinegun’’ under the NFA and GCA ‘‘common use’’ analysis in Caetano, Id. at 625; see also id. at 627 (accepting and that this final rule reflects the meaning that such items cannot be that M–16 rifles are dangerous and public safety goals of the NFA and GCA. banned unless they are both dangerous unusual weapons that may be banned). The Department thoroughly considered and unusual. Further, commenters said In the decade since Heller was the various issues raised in opposition that Caetano stands for the proposition decided, lower courts have consistently to the rule, which are discussed below. that any advancement in weaponry is upheld prohibitions of machineguns. still protected under the Second Hollis v. Lynch, 827 F.3d 436, 451 (5th D. Specific Issues Raised in Opposition Amendment. They argued that the Court Cir. 2016) (upholding Federal statute to the Rule declared ‘‘the Second Amendment banning possession of machineguns 1. Constitutional and Statutory extends, prima facie, to all instruments because they are ‘‘dangerous and Arguments that constitute bearable arms, even those unusual and therefore not in common that were not in existence at the time of use’’); United States v. Henry, 688 F.3d a. Violates the Second Amendment the founding’’ and that its protection is 637, 640 (9th Cir. 2012); Hamblen v. Comments Received not limited to only those weapons United States, 591 F.3d 471, 472, 474 useful in warfare. Id. at 1027 (internal (6th Cir. 2009); United States v. Fincher, A total of 16,051 of the commenters quotation marks omitted). 538 F.3d 868, 874 (8th Cir. 2008); see opposed the rule on the ground that it also Heller v. Dist. of Columbia (Heller Department Response violates the Second Amendment. Of II), 670 F.3d 1244, 1270 (D.C. Cir. 2011) these, 11,753 used a form letter stating The Department does not believe that (Kavanaugh, J., dissenting) (‘‘fully that the ‘‘regulations dismiss Second the proposed regulation violates the automatic weapons, also known as Amendment protections, by appealing Second Amendment. The Supreme machine guns, have traditionally been to the Heller court decision. But the Court has indicated, and several lower banned and may continue to be banned Constitution trumps the Supreme courts have squarely held, that the after Heller’’); United States v. Court—so when the Second Second Amendment does not protect a Marzzarella, 614 F.3d 85, 94–95 (3d Cir. Amendment says the right to keep and right to possess a machinegun. Because 2010) (‘‘the Supreme Court has made bear arms shall not be infringed, any bump-stock-type devices are clear the Second Amendment does not limitation of the right for law-abiding machinegun conversion devices that protect’’ machineguns and short- citizens should be treated as qualify as ‘‘machineguns’’ under Federal barreled shotguns). unconstitutional[.]’’ Many commenters, law, see supra Part III.E., prohibiting This body of precedent, in addition to including those identifying as former or them does not violate the Second Heller, strongly supports the active law enforcement or military Amendment. Department’s view that a bump-stock- members, echoed these sentiments by ‘‘Like most rights, the right secured by type device, as a machinegun declaring that the proposed rule the Second Amendment is not conversion device qualifying as a infringes on the rights of law-abiding unlimited.’’ Heller, 554 U.S. at 626; ‘‘machinegun’’ under Federal law, is not gun owners, and that the phrasing of the accord McDonald v. City of Chi., 561 protected by the Second Amendment. Second Amendment—‘‘shall not be U.S. 742, 786 (2010). In Heller, for What makes a machinegun a ‘‘dangerous infringed’’—strictly limits or negates the example, the Supreme Court recognized and unusual weapon’’ unprotected by ability of Government to impose any an ‘‘important limitation on the right to the Second Amendment is its capacity regulations on firearms. One keep and carry arms’’: ‘‘the historical to fire automatically, see, e.g., Henry, commenter, for instance, argued that the tradition of prohibiting the carrying of 688 F.3d at 640, which ‘‘puts the Second Amendment’s reference to a ‘dangerous and unusual weapons.’ ’’ 554 machine gun on a different plane’’ than ‘‘well-regulated Militia’’ includes U.S. at 627. More specifically, and other firearms, United States v. Kirk, unorganized militia, which the importantly for purposes of this 105 F.3d 997, 1002 (5th Cir. 1997) (en commenter interpreted to mean any rulemaking, the Court explicitly banc) (opinion of Higginbotham, J.). person who owns a gun. Because the described machineguns as the kind of Bump-stock-type devices qualify as military has automatic weapons, the dangerous and unusual weapons not machineguns, as discussed above,

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66523

because they enable an otherwise GCA, invited the public to rely on its ensuring that the public is aware of the semiautomatic firearm to fire consistent decisions and acquire such correct classification of bump-stock-type automatically. Since they bear the same items. With the sudden change of devices under the law, and that key characteristic that makes traditional position, the organization asserted, ATF continued possession of such devices is machineguns ‘‘dangerous and unusual,’’ seeks to entrap citizens who have prohibited. Anyone currently in bump-stock-type devices are simply purchased a federally approved possession of a bump-stock-type device unprotected by the Second Amendment firearm accessory. Citing Sherman v. is not acting unlawfully unless they fail for the same reason. United States, 356 U.S. 367, 376 (1958), to relinquish or destroy their device This conclusion is fully consistent the organization argued that it is after the effective date of this regulation. with Caetano v. Massachusetts, 136 S. ‘‘unconstitutional for the Government to Ct. 1027. In Caetano, the Supreme beguile an individual ‘into committing ii. Violates Takings Clause and Due Judicial Court of Massachusetts had crimes which he otherwise would not Process Clause upheld a State prohibition of stun guns have attempted.’ ’’ Further, it argued Comments Received on the grounds that stun guns were not that at least some 520,000 law-abiding in common use when the Second citizens could be criminals who could Over 1,200 commenters objected that Amendment was ratified and are not face up to ten years’ imprisonment the rule will violate the Takings Clause useful in military operations. See id. at ‘‘without even receiving individual of the Fifth Amendment, which 1027–28. The Supreme Court summarily notice of ATF’s reversal of position.’’ provides ‘‘private property [shall not] be vacated this ruling because neither of Department Response taken for public use, without just the State court’s premises was valid: compensation.’’ Some commenters said Heller made a ‘‘clear statement that the The Department disagrees that the that the Takings Clause requires the final rule amounts to entrapment. Second Amendment ‘extends . . . to Government to compensate Entrapment is a complete defense to a . . . arms . . . that were not in manufacturers for their present and criminal charge on the theory that existence at the time of the founding,’ ’’ future loss of revenues. Many other and ‘‘rejected the proposition ‘that only ‘‘Government agents may not originate a commenters further indicated that the those weapons useful in warfare are criminal design, implant in an innocent Government would owe compensation protected.’ ’’ Id. at 1028 (quoting Heller, person’s mind the disposition to commit to owners of bump-stock-type devices 554 U.S. at 582, 624–25). The a criminal act, and then induce because the Government would Department’s conclusion in this commission of the crime so that the effectively be taking personal property rulemaking that the Second Amendment Government may prosecute.’’ Jacobson does not protect bump-stock-type v. United States, 503 U.S. 540, 548 for public safety, which is a form of devices rests on neither of the (1992). A valid entrapment defense has public use. They cited Horne v. propositions rejected by Caetano. As two related elements: (1) Government Department of Agriculture, 135 S. Ct. discussed above, the Department inducement of the crime, and (2) the 2419, 2428 (2015), for the proposition believes that this rule comports with the defendant’s lack of predisposition to that mandating relinquishment of Second Amendment because bump- engage in the criminal conduct. property constitutes a physical taking stock-type devices qualify as Mathews v. United States, 485 U.S. 58, and requires compensation. One machineguns, which are not 63 (1988). commenter contrasted this rule with the constitutionally protected—not because As described above, ATF has now regulation at issue in Andrus v. Allard, bump-stock-type devices did not exist concluded that it misclassified some 444 U.S. 51 (1979), which prohibited in 1791 or are not useful in warfare. bump-stock-type devices and therefore the commercial sale of eagle body parts Moreover, although the Supreme initiated this rulemaking pursuant to the gathered before 1940. The commenter Judicial Court of Massachusetts requirements of the APA. An agency is observed that the Supreme Court held ultimately held that stun guns are entitled to correct its mistakes. See the eagle-part regulation was not a protected under the Second Williams Gas Processing-Gulf Coast Co. regulatory taking because it did not Amendment in Ramirez v. v. FERC, 475 F.3d 319, 326 (D.C. Cir. compel the surrender of the body parts Commonwealth, 94 NE3d 809 (2018), 2006) (‘‘[I]t is well understood that [a]n and imposed no physical invasion or the court did not suggest that more agency is free to discard precedents or restraint upon them. Id. at 65–66. By dangerous weapons, like machineguns practices it no longer believes correct. contrast, the commenter noted, owners and machinegun conversion devices, are Indeed we expect that an [ ] agency may of bump-stock-type devices under the also protected. The court acknowledged well change its past practices with regulation would be compelled to that a stun gun is even ‘‘less lethal than advances in knowledge in its given field surrender their devices or face criminal a ,’’ id. at 817, the weapon that or as its relevant experience and penalties. expertise expands. If an agency decides the Supreme Court expressly held to be Several commenters also stated that to change course, however, we require protected in Heller, 554 U.S. at 635. ‘‘for this regulation to be Constitutional it to supply a reasoned analysis b. Violates the Fifth Amendment indicating that prior policies and each and every owner of a bump stock, standards are being deliberately or other devices captured in this i. Violates Due Process Clause— regulation not yet named, must be given Entrapment changed, not casually ignored.’’). This rulemaking procedure is specifically their day in court to present evidence Comments Received designed to notify the public about and an argument as to why their At least one commenter, a gun-rights changes in ATF’s interpretation of the property shouldn’t be taken without nonprofit organization, argued that NFA and GCA and to help the public compensation at a minimum.’’ ATF’s change of position constitutes avoid the unlawful possession of a Many commenters separately opined unconstitutional entrapment. It machinegun. It is important to note that that the Department did not include the maintained that ATF’s past at no time did ATF induce any member cost of compensation in its cost-benefit classification letters, which informed of the public to commit a crime. The analysis and several proposed estimated the public that certain bump-stock-type ANPRM, NPRM, and this final rule have costs of such compensation. Those devices were not subject to the NFA or followed the statutory process for comments are addressed in Part IV.I.1.

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66524 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

Department Response and sale of intoxicating liquors was an prohibiting machineguns and requiring The Department does not agree that unconstitutional taking. The Court their disposal or removal was not a classifying bump-stock-type devices as explained that the government’s power taking. Fesjian v. Jefferson, 399 A.2d machineguns results in the unlawful to prohibit the ‘‘use by individuals of 861, 865–66 (1979). These precedents taking of property ‘‘for public use, their property, as will be prejudicial to support the Department’s conclusion without just compensation.’’ U.S. Const. the health, the morals, or the safety of that the prohibition of bump-stock-type amend. V. It is well established that the public, is not, and, consistently with devices as machineguns does not have ‘‘the nature of the [government’s] action the existence and safety of organized the character of a compensable taking is critical in takings analysis.’’ Keystone society, cannot be, burdened with the within the meaning of the Fifth Bituminous Coal Ass’n v. DeBenedictis, condition that the state must Amendment. 480 U.S. 470, 488 (1987); accord Penn compensate such individual owners for The Department acknowledges that a Cent. Transp. Co. v. City of New York, pecuniary losses they may sustain, by panel of the U.S. Court of Appeals for 438 U.S. 104, 124 (1978) (‘‘character of reason of their not being permitted, by the Ninth Circuit recently upheld a the government action’’ has ‘‘particular a noxious use of their property, to inflict preliminary injunction against the significance’’). The Department’s action injury upon the community.’’ Id. at 669. Attorney General of California that here, classifying bump-stock-type Similarly, the Supreme Court held in relied in part on the Takings Clause in devices as machineguns subject to the Miller v. Schoene, 276 U.S. 272, 280 prohibiting the State from implementing NFA and GCA, does not have the nature (1928), that Virginia was not required to restrictions on firearm magazines that of a taking. compensate owners of red cedar trees hold more than 10 rounds. Duncan v. A restriction on ‘‘contraband or for the value of trees that the State had Becerra, No. 17–56081, 2018 WL noxious goods’’ and dangerous articles ordered destroyed to prevent the spread 3433828 (9th Cir. July 17, 2018). The by the government to protect public of a disease that threatened local apple Ninth Circuit’s order essentially safety and welfare ‘‘has not been orchards. ‘‘[W]here the public interest is adopted the district court’s analysis of regarded as a taking for public use for involved,’’ the Court observed, the Takings Clause question. See id. at which compensation must be paid.’’ ‘‘preferment of that interest over the *3. The district court’s reasoning on the Acadia Tech., Inc. v. United States, 458 property interest of the individual, to takings question was closely F.3d 1327, 1332 (Fed. Cir. 2006); see the extent even of its destruction, is one intertwined with the Second also United States v. $7,990.00 in U.S. of the distinguishing characteristics of Amendment inquiry, and rested on the Currency, 170 F.3d 843, 845 (8th Cir. every exercise of the police power conclusion that it was ‘‘dubious’’ for 1999) (‘‘forfeiture of contraband is an which affects property.’’ Id. at 279–80. California to deem large-capacity exercise of the government’s police Lower courts have likewise deemed the magazines a public nuisance given the power’’ and does not qualify as a Takings Clause inapplicable to Supreme Court’s observation that taking).7 The Takings Clause was ‘‘not governmental regulation of dangerous ‘‘[g]uns in general are not deleterious intended as a limitation of the exercise personal property for public-safety devices or products or obnoxious waste of those police powers which are reasons. See, e.g., Garcia v. Vill. of materials.’’ Duncan v. Becerra, 265 F. necessary to the tranquility of every Tijeras, 767 P.2d 355 (N.M. Ct. App. Supp. 3d 1106, 1137 (S.D. Cal. 2017) well-ordered community, nor of that 1988) (village ordinance banning (internal quotation marks omitted) general power over private property possession of pit bulls was ‘‘a proper (quoting Staples v. United States, 511 U.S. 600, 610 (1994)). But regulation of which is necessary for the orderly exercise of the Village’s police power’’ bump-stock-type devices is existence of all governments. It has and not a taking). always been held that the legislature fundamentally distinguishable from Consistent with these cases, courts California’s prohibition on possessing may make police regulations, although have rejected arguments that restrictions they may interfere with the full such magazines. As discussed, and as on the possession of dangerous firearms, Heller indicates, dangerous and unusual enjoyment of private property, and like machineguns, are takings requiring though no compensation is given.’’ Chi., weapons are not entitled to Second just compensation. In Akins v. United Amendment protection, and may indeed Burlington & Quincy Ry. Co. v. Illinois, States, 82 Fed. Cl. 619 (2008), for 200 U.S. 561, 594 (1906) (internal qualify as deleterious devices or example, the Court of Federal Claims contraband. Other district courts have quotation marks omitted); see, e.g., held that ATF’s ultimate classification Holliday Amusement Co. of Charleston followed the reasoning of cases like of the Akins Accelerator as a Akins and Fesjian and rejected takings v. South Carolina, 493 F.3d 404, 409–11 machinegun, see supra Part III, was not (4th Cir. 2007) (upholding State challenges to California firearm a taking. The court reasoned that ATF restrictions. See Rupp v. Becerra, 2018 prohibition of video gaming machines had acted ‘‘pursuant to the police power without compensation). WL 2138452, at *8–9 (C.D. Cal. May 9, conferred on it by Congress’’ rather than In Mugler v. Kansas, 123 U.S. 623, 2018) (restrictions on ‘‘assault by exercising eminent domain, and that 668–69 (1887), for example, the weapons’’); Wiese v. Becerra, 263 F. Supreme Court rejected a distiller’s the plaintiff lacked a sufficient property Supp. 3d 986, 995 (E.D. Cal. 2017) argument that a State constitutional interest because he had ‘‘voluntarily (prohibition of large-capacity gun amendment prohibiting the manufacture entered an area subject to pervasive magazines). federal regulation—the manufacture and Finally, the Department does not 7 In the takings context, the use of the term sale of firearms.’’ Id. at 623–24; see also agree that each owner of a bump-stock- ‘‘police power’’ in connection with Federal Bennis v. Michigan, 516 U.S. 442, 452 type device has a due-process right to a regulation does not posit the existence of a ‘‘plenary (1996) (‘‘The government may not be hearing in connection with the police power’’ at the Federal level. Cf. United States required to compensate an owner for promulgation of this rule. The rule v. Lopez, 514 U.S. 549, 566 (1995). Rather, it refers to ‘‘the power of the federal government to engage,’’ property which it has already lawfully clarifies the scope of the NFA and GCA, pursuant to one or more of its enumerated powers, acquired under the exercise of general legislative enactments, with ‘‘in activities not unlike those engaged in by the governmental authority other than the respect to bump-stock-type devices. states under their inherent sovereign powers’’ to power of eminent domain.’’). Similar ‘‘Official action that is legislative in protect the public welfare. Fla. Rock Indus., Inc. v. United States, 18 F.3d 1560, 1568 n.17 (Fed. Cir. reasoning led the District of Columbia nature is not subject to the notice and 1994). Court of Appeals to hold that a DC law hearing requirements of the due process

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66525

clause.’’ Interport Pilots Agency, Inc. v. congressional authorization. Relying on persons convicted of a misdemeanor Sammis, 14 F.3d 133, 142 (2d Cir. Fernandez-Vargas v. Gonzales, 548 U.S. crime of domestic violence to possess a 1994); see also, e.g., Bi-Metallic Inv. Co. 30, 36 (2006), the commenter stated firearm, several defendants argued that v. State Bd. of Equalization, 239 U.S. there is no question that the proposed the law violated the Ex Post Facto 441, 445 (1915) (‘‘General statutes rule has a retroactive effect because the Clause. One defendant argued that he within the state power are passed that rule would ‘‘affect’’ existing rights and had a prior conviction for a affect the person or property of impose new liabilities on the past and misdemeanor crime of domestic individuals, sometimes to the point of continued possession of bump-stock- violence, but lawfully possessed a ruin, without giving them a chance to be type devices. firearm before 18 U.S.C. 922(g)(9) heard.’’). Furthermore, the Department’s At least one commenter argued the became law. United States v. Mitchell, conclusion that bump-stock-type rule is an unconstitutional bill of 209 F.3d 319 (4th Cir. 2000). The devices are machineguns under the NFA attainder because the rule restricts defendant argued that, as applied to and GCA means that owners lack a particular brands of stocks, per the him, the statute violated the Ex Post cognizable property interest in these Department’s definition, while not at Facto Clause because the new law devices for due-process purposes. As the same time restricting all brands of penalized him for his previous domestic the Fifth Circuit held in Cooper v. City stocks. Similarly, another commenter violence conviction. However, the of Greenwood, firearms covered by the stated the regulation appears punitive in Fourth Circuit disagreed, noting that NFA are ‘‘contraband per se,’’ and nature, and abusively narrow in ‘‘[i]t is immaterial that Mitchell’s ‘‘[c]ourts will not entertain a claim targeting Slide Fire, a seller of bump- firearm purchase and domestic violence contesting the confiscation of stock-type devices that has already conviction occurred prior to contraband per se because one cannot announced the close of its business. § 922(g)(9)’s enactment because the have a property right in that which is conduct prohibited by § 922(g)(9) is the Department Response not subject to legal possession.’’ 904 possession of a firearm.’’ Id. at 322; see F.2d 302, 305 (1990). The Department disagrees that the also United States v. Pfeifer, 371 F.3d proposed rule violates the Ex Post Facto 430, 436–37 (8th Cir. 2004); United c. Violates Ex Post Facto Clause and Bill or Bill of Attainder Clauses. The rule States v. Meade, 986 F. Supp. 66, 69 (D. of Attainder Clause would criminalize only future conduct, Mass. 1997), aff’d, 175 F.2d 215 (1st Cir. Comments Received not past possession of bump-stock-type 1999); United States v. Brady, 26 F.3d 282, 290–91 (2d Cir. 1994); United Numerous commenters asserted that devices that ceases by the effective date States v. Gillies, 851 F.2d 492, 495–96 the proposed rule would violate article of this rule. In Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), the Supreme Court set (1st Cir. 1988) (Breyer, J.); United States I, section 9, clause 3 of the Constitution, v. D’Angelo, 819 F.2d 1062, 1065–66 which states, ‘‘No Bill of Attainder or ex out four types of laws that violate the Ex Post Facto Clause: (11th Cir. 1987). post facto Law shall be passed.’’ One This rule brings clarity to the meaning gun-rights nonprofit organization, 1st. Every law that makes an action, done of ‘‘machinegun,’’ and makes clear that quoting United States v. O’Neal, 180 before the passing of the law, and which was innocent when done, criminal; and punishes individuals are subject to criminal F.3d 115, 122 (4th Cir. 1999), stated that liability only for possessing bump-stock- even though this is a regulatory action, such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when type devices after the effective date of the ‘‘sanction or disability it imposes is committed. 3rd. Every law that changes the regulation, not for possession before that ‘so punitive in fact’ that the law ‘may punishment, and inflicts a greater date. No action taken before the not legitimately be viewed as civil in punishment, than the law annexed to the effective date of the regulation is nature.’ ’’ crime, when committed. 4th. Every law that affected under the rule. Although Another commenter, the Maryland alters the legal rules of evidence, and regulating past possession of a firearm Shall Issue organization, argued that receives less, or different, testimony, than the may implicate the Ex Post Facto Clause, ATF’s reliance on 18 U.S.C. 922(o) law required at the time of the commission regulating the continued or future creates an impermissible ex post facto of the offence, in order to convict the offender. possession of a firearm that is already law because current owners and possessed does not. See Benedetto v. manufacturers of bump-stock-type Id. at 390. Citing Calder, the Supreme Sessions, No. CCB–17–0058; 2017 WL devices ‘‘became felons as of the date Court has explained that ‘‘[t]o fall 4310089, at *5 (D. Md. Sept. 27, 2017) and time they took possession of a within the ex post facto prohibition, a (‘‘Whether a gun was purchased before bump stock, even though such law must be retrospective—that is, it the challenged law was enacted . . . is possession and manufacture was then must apply to events occurring before its immaterial to whether the challenged expressly permitted by prior ATF enactment—and it must disadvantage law regulates conduct that occurred interpretations.’’ The commenter cited the offender affected by it by altering the before or after its enactment.’’); see also Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 definition of criminal conduct or Samuels v. McCurdy, 267 U.S. 188, 193 (1798), and Peugh v. United States, 569 increasing the punishment for the (1925) (rejecting Ex Post Facto Clause U.S. 530 (2013), to support its crime.’’ Lynce v. Mathis, 519 U.S. 433, challenge to statute that prohibited the arguments. It argued that the ex post 441 (1997) (emphasis added; citations post-enactment possession of facto issue can be avoided by holding and internal quotation marks omitted). intoxicating liquor, even when the that the exemption in 18 U.S.C. The Federal courts have thus been liquor was lawfully acquired before the 922(o)(2)(A) applies where bump-stock- careful to distinguish statutes and statute’s enactment). For this reason, the type devices are possessed under ‘‘the regulations that violate the Ex Post Department disagrees with commenters’ authority’’ of prior ATF rulings. Facto Clause from those that criminalize assertions that the rule violates the Ex Furthermore, the commenter, citing only future conduct and are therefore Post Facto Clause. Bowen v. Georgetown University not ‘‘retrospective,’’ including in the Relatedly, the Department also Hospital, 488 U.S. 204, 208 (1988), firearms possession context. For disagrees with the view that 18 U.S.C. stated that the Supreme Court has held example, following passage of the 922(o)(2)(A) provides the authority to that an agency cannot engage in Lautenberg Amendment (18 U.S.C. permit continued possession of bump- retroactive rulemaking without specific 922(g)(9)), which made it unlawful for stock-type devices ‘‘under the

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66526 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

authority’’ of prior ATF rulings. Section guarantee against unreasonable searches est exclusio alterius would not be used 922(o)(2)(A) is inapplicable because, and seizures. Commenters believed that at a later time to deny fundamental among other reasons, ATF’s letter because bump-stock-type devices rights merely because they were not rulings regarding bump-stock-type essentially would become contraband specifically enumerated in the devices did not purport to authorize the under the rule, ‘‘mandating [their] Constitution.’ ’’ Gibson v. Matthews, 926 possession of devices qualifying as surrender to authorities would violate F.2d 532, 537 (6th Cir. 1991) (citing machineguns under section 922(o)(1); the 4th Amendment protection from Charles v. Brown, 495 F. Supp. 862, instead, ATF advised individuals that seizure without due process.’’ 863–64 (N.D. Ala. 1980)). Federal certain devices did not qualify as Department Response ‘‘circuit courts across the country have machineguns in the first place, a consistently held that the Ninth position that ATF has now Although commenters cite the Fourth Amendment does not impinge upon reconsidered. Furthermore, section Amendment, it is unclear how a Congress’s authority to restrict firearm 922(o)(2)(A) does not empower ATF to ‘‘search’’ or ‘‘seizure’’ would result from ownership.’’ United States v. Finnell, freely grant exemptions from section this rule. The Department is unaware of 256 F. Supp. 2d 493, 498 (E.D. Va. 922’s general prohibition of any precedent supporting the view that 2003). machineguns. a general regulatory prohibition of The Department also disagrees that The Department also disagrees that possession of certain contraband can the rule violates the Tenth Amendment. the proposed rule constitutes a bill of violate the Fourth Amendment. A Commenters seemingly argued that the attainder. The Supreme Court has seizure in ‘‘[v]iolation of the Fourth powers exercised by the Department in highlighted the fact that the Bill of Amendment requires an intentional issuing the rule were ‘‘powers not Attainder Clause applies only to acquisition of physical control,’’ Brower delegated to the United States by the Congress, noting that ‘‘[t]he v. Cty. of Inyo, 489 U.S. 593, 596 (1989), Constitution, nor prohibited by it to the distinguishing feature of a bill of and the final rule makes clear that States.’’ However, Federal courts have attainder is the substitution of a current possessors of bump-stock-type long held that the NFA, GCA, and legislative for a judicial determination of devices are not required to surrender the implementing regulations do not violate guilt.’’ De Veau v. Braisted, 363 U.S. devices to the authorities. Instead, the Tenth Amendment. The NFA does 144, 160 (1960) (emphasis added). The current possessors may lawfully dispose not ‘‘usurp[ ] police power reserved to Court has also described a bill of of their devices in other ways, as the States.’’ United States v. Miller, 307 attainder as ‘‘a law that legislatively discussed below in Part IV.D.7. U.S. 174, 176 (1939). Further, ‘‘[b]ecause determines guilt and inflicts e. Violates Ninth and Tenth § 922(o) was a proper exercise of punishment upon an identifiable Amendments Congress’s enumerated authority under individual without provision of the Comments Received the Commerce Clause, and because it protections of a judicial trial.’’ Nixon v. does not compel, let alone commandeer, Adm’r of Gen. Servs., 433 U.S. 425, 468 Various commenters opposed to the the states to do anything, the statute (1977) (emphasis added). Accordingly, rule stated that it would violate the does not violate the Tenth the Bill of Attainder Clause does not Ninth and Tenth Amendments of the Amendment.’’ United States v. Kenney, apply ‘‘to regulations promulgated by an Constitution. The Ninth Amendment 91 F.3d 884, 891 (7th Cir. 1996). executive agency.’’ Paradissiotis v. provides: ‘‘The enumeration in the f. Lack of Statutory Authority Rubin, 171 F.3d 983, 988–89 (5th Cir. Constitution, of certain rights, shall not 1999) (citing Walmer v. U.S. Dep’t of be construed to deny or disparage others Comments Received Defense, 52 F.3d 851, 855 (10th Cir. retained by the people.’’ The Tenth Amendment provides: ‘‘The powers not A total of 47,863 commenters, most of 1995) (‘‘The bulk of authority suggests whom sent form submissions opposed that the constitutional prohibition delegated to the United States by the Constitution, nor prohibited by it to the to the proposed rule, argued that ATF against bills of attainder applies to lacks statutory authority to regulate legislative acts, not to regulatory actions States, are reserved to the States respectively, or to the people.’’ One bump-stock-type devices. Many of administrative agencies.’’)); see also commenters said that ATF, by its own Korte v. Office of Personnel Mgmt., 797 commenter said, ‘‘The BATF is another agency whose existence violates the admission, repeatedly stated it could F.2d 967, 972 (Fed. Cir. 1986); Marshall not regulate such devices. Commenters v. Sawyer, 365 F.2d 105, 111 (9th Cir. 10th Amendment.’’ Another commenter argued, ‘‘as an accessory, the federal generally expressed the view that 1966). Even if the proposed rule were because bump-stock-type devices are subject to the Bill of Attainder Clause, government cannot ban [bump-stock- type devices], because only the states not firearms, ATF has no authority it would pass constitutional muster. The under the NFA or GCA to regulate them. fact that Slide Fire announced the close can ban them.’’ A handful of other commenters stated that the rule violates Some commenters contended that 6 of its business does not make this rule U.S.C. 531 gives ATF only narrow a bill of attainder; that company is not States’ rights under the Tenth Amendment because it violates the statutory authority and does not provide being singled out, as the proposed rule ‘‘right to keep and bear arms’’ ATF general authority to regulate the applies to all similar devices. Further, provisions of 44 State constitutions. safety of firearms, accessories, or parts. the regulation of all machineguns of this In addition, numerous commenters type is not a ‘‘punishment’’ as is Department Response argued that, as the term ‘‘machinegun’’ required for an enactment to be The Department disagrees that the is already clearly defined in the NFA, unlawful bill of attainder. See Nixon, proposed rule violates the commenters’ only Congress can make changes to the 433 U.S. at 473. rights under the Ninth Amendment. The definition and regulate bump-stock-type d. Violates Fourth Amendment Ninth Amendment ‘‘does not confer devices. Furthermore, commenters substantive rights in addition to those stated that the agency’s interpretation of Comments Received conferred by other portions of our the term ‘‘machinegun’’ would not be Many commenters also raised governing law. The Ninth Amendment entitled to deference under Chevron objections on grounds that the proposed ‘was added to the Bill of Rights to U.S.A. v. Natural Resources Defense rule violates the Fourth Amendment’s ensure that the maxim expressio unius Council, 467 U.S. 837 (1984).

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66527

Department Response ‘‘conversion devices’’ or ‘‘combinations Dodson, 519 F. App’x 344, 348–49 & n.4 The Attorney General is responsible of parts,’’ including auto sears (ATF (6th Cir. 2013); cf., e.g., Firearms for enforcing the NFA, as amended, and Ruling 81–4) and the Akins Accelerator Import/Export Roundtable Trade Grp. v. the GCA, as amended. This includes the (ATF Ruling 2006–2). Jones, 854 F. Supp. 2d 1, 18 (D.D.C. authority to promulgate regulations The Department agrees that regulatory 2012) (upholding ATF’s interpretation agencies may not promulgate rules that necessary to enforce the provisions of of 18 U.S.C. 925(d) to ban importation conflict with statutes. However, the these statutes. See 18 U.S.C. 926(a); 26 of certain firearm parts under Chevron Department disagrees that the rule U.S.C. 7801(a)(2)(A), 7805(a). The ‘‘step one’’); Modern Muzzleloading, conflicts with the statutes or is in statutory provision cited by some Inc. v. Magaw, 18 F. Supp. 2d 29, 35– contravention of administrative-law commenters, 6 U.S.C. 531, is the 36 (D.D.C. 1998) (‘‘since the ATF’s principles. The rule merely defines provision of the Homeland Security Act classification of [a firearm as not terms used in the definition of of 2002, Public Law 107–296, 116 Stat. antique] ‘amounts to or involves its ‘‘machinegun’’ that Congress did not— 2135, that transferred the powers the interpretation’ of the GCA, a statute the terms ‘‘automatically’’ and ‘‘single Secretary of the Treasury had with administered by the ATF, we review function of the trigger’’—as part of respect to ATF to the Attorney General that interpretation under the deferential implementing the provisions of the NFA standard announced in Chevron’’). when ATF was transferred to the and GCA. Department of Justice. Accordingly, the Second, the Department’s When a court is called upon to review construction of those terms is Attorney General is now responsible for an agency’s construction of the statute it enforcing the NFA and GCA, and he has reasonable under Chevron. As explained administers, the court looks to the in more detail in Part III, the delegated the responsibility for framework set forth in Chevron U.S.A., administering and enforcing the NFA Department is clarifying its regulatory Inc. v. Natural Resources Defense definition of ‘‘automatically’’ to conform and GCA to the Director of ATF, subject Council, Inc., 467 U.S. 837, 842–43 to the direction of the Attorney General to how that word was understood and (1984). The first step of the Chevron used when the NFA was enacted in and the Deputy Attorney General. See review is to ask ‘‘whether Congress has 28 CFR 0.130(a)(1)–(2). 1934. See Olofson, 563 F.3d at 658. And directly spoken to the precise question the Department is reaffirming that a ‘‘Because § 926 authorizes the at issue.’’ Id. at 842. ‘‘If the intent of [Attorney General] to promulgate those single pull of the trigger is a single Congress is clear, that is the end of the function of the trigger, consistent with regulations which are ‘necessary,’ it matter; for the court, as well as the almost inevitably confers some measure the NFA’s legislative history, ATF’s agency, must give effect to the previous determinations, and judicial of discretion to determine what unambiguously expressed intent of regulations are in fact ‘necessary.’’’ Nat’l precedent. See, e.g., Akins, 312 F. App’x Congress. If, however, the court at 200. This rule is therefore lawful Rifle Ass’n v. Brady, 914 F.2d 475, 479 determines Congress has not directly under the NFA and GCA even if the (4th Cir. 1990). In the original GCA addressed the precise question at operative statutory terms are ambiguous. implementing regulations, ATF issue .... the question for the court is provided regulatory definitions of the whether the agency’s answer is based on g. Violation of the Americans With terms that Congress did not define in a permissible construction of the Disabilities Act the statute. 33 FR 18555 (Dec. 14, 1968). statute.’’ Id. at 842–43 (footnote Comments Received Since 1968, ATF has occasionally added omitted). definitions to the implementing The Department believes that this A few commenters indicated that regulations. See, e.g., 63 FR 35520 (June rule’s interpretations of ‘‘automatically’’ bump-stock-type devices are assistive 30, 1998). Similarly, 26 U.S.C. 7805(a) and ‘‘single function of the trigger’’ in devices for people with nerve damage or states that ‘‘the [Attorney General] shall the statutory definition of a physical disability. A few commenters prescribe all needful rules and ‘‘machinegun’’ accord with the plain further stated that the regulation could regulations for the enforcement of this meaning of those terms. Moreover, even be a violation of the Americans with title.’’ As is the case with the GCA, ATF if those terms are ambiguous, this rule Disabilities Act (ADA), 42 U.S.C. ch. has provided regulatory definitions for rests on a reasonable construction of 126. In particular, one commenter terms in the NFA that Congress did not them. Although Congress defined claimed that under the ADA, an define, such as ‘‘frame or receiver’’ and ‘‘machinegun’’ in the NFA, 26 U.S.C. individual can establish coverage under ‘‘manual reloading.’’ See, e.g., 81 FR 5845(b), it did not further define the the law by ‘‘showing that he or she has 2658 (Jan. 15, 2016). These definitions components of that definition. See, e.g., been subjected to an action prohibited were necessary to explain and United States v. One TRW, Model M14, under the Act because of an actual or implement the statute, and do not 7.62 Caliber Rifle, 441 F.3d 416, 419 perceived physical [condition] that is contradict the statute. Federal courts (6th Cir. 2006) (noting that the NFA not transitory and minor.’’ The have recognized ATF’s authority to does not define the phrases ‘‘designed to commenter asserted that this regulation classify devices as ‘‘firearms’’ under shoot’’ or ‘‘can be readily restored’’ in constitutes such ‘‘an action’’ and would Federal law. See, e.g., Demko v. United the definition of ‘‘machinegun’’). violate the civil rights of a diverse group States, 44 Fed. Cl. 83, 93 (1999) Congress thus implicitly left it to the of persons with disabilities, including (destructive device); Akins v. United Department to define ‘‘automatically’’ homeowners, veterans, target shooters, States, 312 F. App’x 197 (11th Cir. 2009) and ‘‘single function of the trigger’’ in and hunters. (per curiam) (machinegun). the event those terms are ambiguous. This rule is based upon this authority. See Chevron, 467 U.S. at 844. Courts Department Response Further, ATF has provided technical have appropriately recognized that the The Department disagrees with and legal reasons why bump-stock-type Department has the authority to commenters that the final rule would devices enable automatic fire by a single interpret elements of the definition of violate the ADA. While the ADA applies function of the trigger, and thus qualify ‘‘machinegun’’ like ‘‘automatically’’ and to State and local governments, it does as machinegun conversion devices, not ‘‘single function of the trigger.’’ See not apply to the Executive Branch of the mere ‘‘accessories.’’ ATF has regularly York v. Sec’y of Treasury, 774 F.2d 417, Federal Government. See 42 U.S.C. classified items as machinegun 419–20 (10th Cir. 1985); United States v. 12131(1) (defining ‘‘public entity’’ as

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66528 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

any State or local government; any unfairly capitalizes on the misfortunes devices for purposes of public safety, department, agency, special purpose of others to push political agendas and then the rulemaking is arbitrary and district, or other instrumentality of a that facts should not be thrown aside. capricious under the APA. Commenters State or States or local government; and Another commenter said that this rule cited judicial decisions such as Motor the National Railroad Passenger will be tainted because from the Vehicle Manufacturers Ass’n v. State Corporation, and any commuter beginning the President made clear he Farm Mutual Automobile Insurance Co., authority). Accordingly, because ATF is had no intention of instructing the 463 U.S. 29, 52 (1983), in which the a Federal agency that is not subject to Department to abide by the public Supreme Court held that when an the ADA, the commenters’ assertion that comments, having declared that bump- agency rescinds or changes its stance on ATF’s regulation would violate the ADA stock-type devices ‘‘will soon be out’’ a regulation, it must explain the is incorrect. after the ‘‘mandated comment period’’ evidence underlying its decision and While not mentioned by commenters, notwithstanding possible congressional offer a rational connection between the ATF is covered by section 504 of the action. facts found and the choice made. Rehabilitation Act of 1973, which Many commenters also noted that Department Response prohibits discrimination, solely by there is still no confirmation or reason of disability, in Federally While the Las Vegas tragedy brought documentation, despite requests, from conducted programs and activities. 29 attention to bump-stock-type devices Federal agencies confirming that bump- U.S.C. 794(a) (stating that ‘‘[n]o and requests from Congress and stock-type devices were actually used in otherwise qualified individual with a nongovernmental organizations the Las Vegas incident, and that ATF disability . . . shall, solely by reason of prompted ATF to review its has not issued a ‘‘Report of Technical her or his disability, be excluded from classification of bump-stock-type Examination’’ (ATF Form 3311.2) for the participation in, be denied the devices, the Department disagrees that any of the firearms used in the incident. benefits of, or be subjected to this rulemaking is an unreasoned With questions remaining about the Las discrimination under . . . any program reaction to recent events. As discussed Vegas criminal investigation and doubts or activity conducted by any Executive in the NPRM, see Part III above, ATF as to whether bump-stock-type devices agency’’). As detailed above, the sole recognized that its prior classifications were actually used, commenters argued purpose of this rulemaking is to clarify determining only some bump-stock-type that ATF has no basis to promulgate a that bump-stock-type devices satisfy the devices to be machineguns did not regulation that, as ATF declared in the statutory definition of ‘‘machinegun,’’ as include extensive legal analysis of NPRM, ‘‘would affect the criminal use defined by Congress in the NFA and certain terms that are significant to of bump-stock-type devices in mass GCA. While a few commenters made defining ‘‘machinegun’’ under the NFA shootings, such as the Las Vegas general assertions that bump-stock-type and were not always consistent. This shooting incident.’’ 83 FR at 13454. devices can be used as assistive devices final rule defines the terms These arguments were frequently for people with disabilities, none ‘‘automatically’’ and ‘‘single function of raised alongside concerns that the cost- submitted any specific information to the trigger’’ to clarify the meaning of benefit analysis did not address the fact suggest that this rule would cause machinegun and to make clear that that there would be few benefits to the rule given that bump-stock-type devices qualified individuals with disabilities, bump-stock-type devices are have supposedly been used in only one solely by reason of their disability, to be machineguns under the meaning of the crime. These concerns are addressed in excluded from the participation in, statute. The Department further notes Part IV.I.5. subjected to discrimination under, or that the President specifically directed it denied the benefits of any program or to clarify the legal status of bump-stock- Department Response activity of ATF. Accordingly, there is type devices through the administrative The Department disagrees that ATF nothing in the record to suggest that this ‘‘procedures the law prescribes,’’ seeks to regulate bump-stock-type rule would raise concerns under the including notice and comment. 83 FR devices merely because they were, or Rehabilitation Act. 7949 (Feb. 23, 2018). have the potential to be, used in crime. 2. Politically Motivated and Emotional 3. Not Used in Criminal Activity The NPRM stated that the Las Vegas shooting made ‘‘individuals aware that Response Comments Received these devices exist—potentially Comments Received Numerous commenters expressed that including persons with criminal or At least 41,954 commenters opposed besides the shooting in Las Vegas, there terrorist intentions—and made their to the rule, including the 40,806 is no evidence that bump-stock-type potential to threaten public safety comments submitted through the NAGR devices have been used in the obvious.’’ 83 FR at 13447. But the petition, asserted that the proposed rule commission of crimes. Several NRPM also provided a detailed analysis is a political or knee-jerk response to a commenters stated that, pursuant to a explaining that bump-stock-type devices tragic incident. Many commenters Freedom of Information Act request, must be regulated because they satisfy suggested that the proposed rule they asked ATF and the Federal Bureau the statutory definition of reflected political pressure and would of Investigation (FBI) for any records on ‘‘machinegun’’ as it is defined in the be a hasty response that would not whether bump-stock-type devices have NFA and GCA. Id. at 13447–48. achieve real benefits and could lead to been used in crimes and that they Commenters conflate the legal basis confiscating all guns. A handful of received no confirmation affirming the for ATF’s regulation of bump-stock-type commenters even asserted they would existence of any such records. devices with the background support the elimination of ATF. Moreover, some commenters stated that information that was provided as Petitions submitted through NAGR ATF provided no evidence or context for the reason ATF revisited its portray the rule as a response to ‘‘the justification that bump-stock-type previous classifications. In the NPRM, anti-gun left . . . so they can turn devices will be used more frequently in ATF explained that the tragedy in Las millions of commonly owned firearms future crimes. They argued that if the Vegas gave rise to requests from into ‘illegal guns’ with the stroke of a agency cannot show what materials it Congress and nongovernmental pen.’’ They cautioned that this rule relied on to regulate bump-stock-type organizations that ATF examine its past

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66529

classifications and determine whether commenter argued that the use of bump- remarked that had there been better bump-stock-type devices currently on stock-type devices by mass shooters policing, certain mass shootings could the market constitute machineguns might actually save lives based on his have been avoided. under the statutory definition. Id. at experience that using the device can 13446. While part of the Department’s result in a rifle jamming, misfeeding, or Department Response mission is to enhance public safety, the misfiring, which would be the best time The Department agrees with the impetus for the change in classification to disrupt a shooter. Other commenters commenters that the existing laws was not, as commenters argued, that the noted that bump-stock-type devices should be enforced, and the Department actually impede a shooter’s ability to device may potentially pose a public is committed to addressing significant fire accurately. Commenters stated that safety threat but because, upon review, violent crime problems facing our there is currently no empirical evidence ATF believes that it satisfies the communities. No law or regulation statutory definition of ‘‘machinegun.’’ that further firearms regulations would entirely prevents particular crimes, but This rule reflects the public safety reduce crime or safeguard people more the Las Vegas shooting illustrated the objectives of the NFA and GCA, but the effectively. One commenter, for particularly destructive capacity of materials and evidence of public safety example, estimated that out of the tens bump-stock-type devices when used in implications that commenters seek have of thousands of gun deaths per year, mass shooting incidents. In any event, no bearing on whether these devices are most of which he stated are suicides, the appropriately considered machineguns proposed rule would only impact a the impetus for this rule is the based on the statutory definition. minute percentage, while another Department’s belief, after a detailed In Motor Vehicle Manufacturers Ass’n commenter opined that crime rate data review, that bump-stock-type devices v. State Farm Mutual Automobile from the FBI show that areas with more satisfy the statutory definition of Insurance Co., 463 U.S. 29 (1983), the firearms restrictions have more crime. A ‘‘machinegun.’’ Through the NFA and Supreme Court wrote that an ‘‘agency handful of commenters pointed to GCA, Congress took steps to regulate must examine the relevant data and Chicago as having some of the most machineguns because it determined that articulate a satisfactory explanation for stringent gun restrictions yet continuing machineguns were a public safety its action including a ‘rational to have high rates of homicide and gun- threat. ATF must therefore classify connection between the facts found and related deaths that ‘‘surpass[] war devices that satisfy the statutory the choice made.’ ’’ Id. at 43 (quoting zones.’’ definition of ‘‘machinegun’’ as Burlington Truck Lines, Inc. v. United Many commenters opposed to the machineguns. The proposed rule is thus States, 371 U.S. 156, 168 (1962)). regulation maintained that neither this lawful and necessary to provide public However, that case involved a Federal rule nor any new gun laws will prevent guidance on the law. criminals or people with malicious agency that rescinded a final rule— 5. Punishes Law-Abiding Citizens based on data and policy choices— intent from proceeding to commit shortly after publication, arguing that crimes. Several voiced the opinion that Comments Received that rule was no longer necessary for a people determined to kill many people multitude of reasons, including that the will find other means, such as cars, At least 2,103 commenters opposed costs outweighed the safety benefits. See knives, toxic substances, homemade the rule on the ground that it would id. at 38–39. The Supreme Court explosives, or any other object. The punish law-abiding citizens and would recognized that any change requires a problem, they argued, is not the object, turn them instantly into potential reasoned basis, noting that ‘‘[i]f but the person who controls it—and that felons. They asserted that hundreds of Congress established a presumption criminals will do whatever they can to thousands of law-abiding citizens are from which judicial review should start, accomplish unlawful ends. One being punished for the acts of one evil that presumption—contrary to commenter, identifying as a law person and that the overwhelming enforcement officer, wrote that he petitioners’ views—is not against safety majority use bump-stock-type devices frequently encounters prohibited regulation, but against changes in lawfully and for fun. Many commenters, possessors who still somehow obtain a current policy that are not justified by some of whom do not own a bump- firearm and do not care about the the rulemaking record.’’ Id. at 42. stock-type device, objected that owners consequences. Another commenter However, the revocation in that case of these devices would become felons stated that the fact that the shooter in involved a discretionary policy overnight just for owning a piece of Las Vegas was well aware that murder decision, and did not depend solely plastic that is not needed to achieve is unlawful but chose to ignore the law upon statutory construction. The bump- bump firing. They further pointed out only serves as proof that laws do not stock-type device rule is not a that because there is no grandfathering stop evildoers. discretionary policy decision based Additionally, several hundred provision, law-abiding gun owners upon a myriad of factors that the agency commenters stated that ATF should would have to surrender any bump- must weigh, but is instead based only focus its time and energy on enforcing stock-type devices after having spent upon the functioning of the device and existing gun laws and regulations rather money to buy them. Many raised these the application of the relevant statutory than issuing a new one. One objections in connection with concerns definition. Therefore, the Department commenter, a former corrections officer that the rule is unconstitutional under does not believe that this rule conflicts from Baltimore, suggested that time the Ex Post Facto Clause and the with State Farm. would be better spent prosecuting Takings Clause of the Constitution, as 4. Will Not Enhance Public Safety criminals for crimes on the books. already discussed in this preamble. Similarly, another commenter noted Moreover, some commenters, concerned Comments Received that ‘‘[w]hen the courtrooms are that the rule’s proposed language could More than 1,100 commenters revolving doors that push gang members later apply to other trigger assemblies, indicated that a regulation on bump- right back out,’’ the problem is not the stated that thousands of law-abiding stock-type devices would have no lack of laws but rather a lack of tools citizens may eventually become measurable effect on the current rate of and resources devoted to enforcing the criminals overnight for simply owning a crime or enhance public safety. One existing laws. Some commenters non-factory trigger.

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66530 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

Department Response Several of these matters were raised as readily restorable to a firing condition or The Department disagrees that law- alternatives for the Department to is otherwise reduced to scrap, and abiding citizens would instantly become consider. See Part IV.F for further throw the pieces away. felons under this rule. This final rule discussion of alternatives. Current possessors are encouraged to undertake destruction of the devices. provides specific information about 7. Enforcement and Compliance acceptable methods of disposal, as well However, current possessors also have as the timeframe under which disposal Comments Received the option to abandon bump-stock-type must be accomplished to avoid violating Some commenters questioned how devices at the nearest ATF office. 18 U.S.C. 922(o). Current possessors of ATF will enforce this regulation, and a Current possessors of bump-stock- bump-stock-type devices who properly few stated that they or people they type devices will have until the effective destroy or abandon their devices will know of will not comply with this rule date of the rule (90 days from the date avoid criminal liability. As described in should it go into effect. Several of publication in the Federal Register) Part IV.D.1.b, this is not a compensable questioned whether the agency would to comply. Additional information on ‘‘taking’’ of property under the send armed agents to visit homes and the destruction of bump-stock-type Constitution. confiscate bump-stock-type devices, devices will be available at www.atf.gov. 6. Other Priorities and Efficiencies while others pointed out that because 8. Lack of Consistency bump-stock-type devices have not been Comments Received tracked in any way, confiscation will Comments Received Hundreds of commenters who oppose depend on volunteers. Commenters Hundreds of commenters indicated the rule suggested that the focus should highlighted the lack of success that that ATF’s reversal of position from its not be on any new gun regulation but certain States, such as Massachusetts, earlier determinations and insistence rather on an array of other issues, have had in collecting bump-stock-type that a bump-stock-type device now including addressing mental health, devices after passing laws restricting qualifies as a machinegun under the drug addiction, education, civility, and their possession. Many commenters NFA ‘‘hurts [the agency’s] credibility.’’ the decline of parenting and morals. suggested it would be a waste of ATF As one commenter remarked, the Many argued that more resources employees’ time and public funds for perpetual state of inconsistencies, should be devoted to treating the ATF to implement the rule. Several whereby products are approved and mentally ill or to the opioid epidemic, others remarked that confiscation or then later ruled to be illegal by ATF, including ensuring that law enforcement would be easily ‘‘creates an air of fear and distrust in the enforcement and mental health agencies circumvented because new technology gunowning public,’’ and moreover, have the power to incarcerate and like 3D printing and CNC (Computer ‘‘calls into question the validity and institutionalize people who are a danger Numeric Control) equipment competence of the very agency charged to themselves or others. Several others (computerized milling machines), or with making these determinations.’’ suggested that resources should be even traditional manufacturing Several commenters argued that ATF’s devoted to securing public spaces, methods, will facilitate a black market lack of consistency only serves to observing that the U.S. Capitol and all in homemade bump-stock-type devices. increase distrust of the agency, the Federal buildings have armed security One commenter submitted to ATF ‘‘a Government, and the legal process. fully functional’’ bump-stock equivalent but many schools and workplaces do Department Response not. Numerous commenters noted that that was created ‘‘using super glue, 2- other improvements are needed before part epoxy, an AR–15 A2 pistol grip, The Department acknowledges any new gun restriction is pursued, threaded steel rods, and small ABS comments regarding the inconsistency such as improving records in the plastic bricks [i.e., Legos].’’ in ATF’s previous classifications of some bump-stock-type devices as National Instant Criminal Background Department Response Check System (NICS), properly charging machineguns and others as non- persons with crimes that would bar The Department acknowledges machineguns. As described in Part III, them from owning firearms, or comments on enforcement of and upon review, ATF recognized that the addressing bullying and teaching morals compliance with the rule. As stated in decisions issued between 2008 and 2017 and the Bible in schools. One the NPRM, current possessors of bump- did not provide consistent or extensive commenter suggested the Government stock-type devices will be obligated to legal analysis regarding the term investigate the social changes that are dispose of these devices. Acceptable ‘‘automatically’’ as that term applies to turning men into killers, while another methods of destruction include bump-stock-type devices. Consistent said that to make a difference, one needs completely melting, shredding, or with its authority to reconsider and to go after the videogame industry and crushing the device. If the device is rectify its past classifications, the Hollywood movies that glorify carnage, made of metal, an alternative acceptable Department accordingly clarifies that body counts, murder, and violence. method of destruction is using an oxy/ the definition of ‘‘machinegun’’ in the Commenters argued that only once these acetylene torch to make three angled NFA and GCA includes bump-stock- issues are tackled can discussion of new cuts that completely severs design type devices because they convert an gun regulations begin. features critical to the functionality of otherwise semiautomatic firearm into a the bump-stock-type device. Each cut machinegun by functioning as a self- Department Response 1 should remove at least ⁄4 inch of metal acting or self-regulating mechanism that The Department acknowledges per cut. Any method of destruction harnesses the recoil energy of the comments regarding treatment of mental must render the device so that it is not semiautomatic firearm in a manner that health and drug addiction, securing readily restorable to a firing condition or allows the trigger to reset and continue schools and workplaces, improving is otherwise reduced to scrap. However, firing without additional physical records in the NICS system, and various as the majority of bump-stock-type manipulation of the trigger by the social issues. The Department agrees devices are made of plastic material, shooter. The Supreme Court has made that these are important issues, but they individuals may use a hammer to break clear that this sort of regulatory are outside the scope of this rulemaking. them apart so that the device is not correction is permissible. An agency

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66531

may change its course as long as it function’’ of the trigger, see id. at 13–14, 10. Bump Firing and Bump-Stock-Type ‘‘suppl[ies] a reasoned analysis for the and it argued that a device that relieves Device Operation change,’’ which the Department has the shooter from having to ‘‘pull and a. Bump-Stock-Type Device Operation done at length in the NPRM and this release the trigger for each individual, final rule. Motor Vehicle Mfrs. Ass’n v. subsequent shot’’ converts the firearm Comments Received State Farm Mut. Auto. Ins. Co., 463 U.S. into a machinegun, id. at 22. While the More than 17,000 commenters argued 29, 42 (1983). And the agency bears no Department accepted the previous that ATF cannot proceed because its heightened burden in prescribing classification of some bump-stock-type description of how bump-stock-type regulations that displace inconsistent devices as non-machineguns, it relied devices operate is inaccurate and that previous regulatory actions. FCC v. Fox on the mistaken premise that the need the proposed rule is based on a false Television Stations, Inc., 556 U.S. 502, for ‘‘shooter input’’ (i.e., maintenance of premise. Commenters emphatically 514–15 (2009). pressure) for firing with bump-stock- argued that bump-stock-type devices do 9. Earlier Determinations Correct type devices means that such devices do not make a semiautomatic firearm shoot automatically by a single function of the Comments Received not enable ‘‘automatic’’ firing, see id. at 21—even though Freedom Ordnance’s trigger. They stated: (1) No part of the Over 1,500 commenters opposed to ERAD also required maintenance of bump-stock-type device touches the the rule maintained that ATF’s earlier pressure by the shooter, see id. at 20. trigger itself, but rather touches only the classifications determining certain shooter’s trigger finger, and (2) if bump- bump-stock-type devices not to be In any event, as explained in the stock-type devices made semiautomatic subject to the NFA or GCA were correct NPRM, the Department believes that rifles fully automatic, then holding the and should not be reversed. These ATF clearly has authority to ‘‘reconsider gun with only the trigger finger hand commenters stated that reversing this and rectify’’ its classification errors. while depressing the trigger should position is unnecessary and unlawful. Akins, 312 F. App’x at 200; see also Fox, cause the gun to repeatedly fire, which To make the point that ATF is bound by 556 U.S. at 514–15; Hollis v. Lynch, 121 does not happen when a rifle is affixed its prior determinations, many F. Supp. 3d 617, 642 (N.D. Tex. 2015) with a bump-stock-type device. One commenters submitted ATF’s own (no due process violation in ATF’s commenter said that should ATF be classification letters and highlighted the revocation of mistaken approval to asked to demonstrate the firing of a rifle Department’s arguments made in manufacture a machinegun). In the equipped with a bump-stock-type litigation as evidence that the rule on NPRM, the Department noted that ‘‘ATF device with the shooter only using his bump-stock-type devices is an arbitrary has reviewed its original classification trigger hand, and no coordinated input decision. In particular, commenters determinations for bump-stock-type from the other hand, it could not be cited the Department’s arguments made devices from 2008 to 2017 in light of its done, as it requires two hands, skill, and in litigation with Freedom Ordnance interpretation of the relevant statutory coordination. Similarly, another Manufacturing, Inc. (‘‘Freedom language, namely the definition of commenter asserted that while various Ordnance’’), No. 3:16–cv–243 (S.D. Ind. ‘machinegun.’ ’’ 83 FR at 13446. The manual bump-firing techniques ‘‘vary in filed Dec. 13, 2016). There, the NPRM explained that ‘‘ATF’s difficulty and are arguably more difficult to master than the use of a Department defended its decision to classifications of bump-stock-type bump-stock-type device, the fact is that classify Freedom Ordnance’s Electronic devices between 2008 and 2017 did not Reset Assistant Device (ERAD) as a they use exactly the same principle as include extensive legal analysis of these machinegun. In responding to Freedom a bump-stock-type device without the terms in concluding that the bump- Ordnance’s argument that the ERAD use of such a device, and thus the stock-type devices at issue were not was a bump-stock-type device and not device itself cannot be the ‘primary subject to regulation, the Department ‘machineguns.’ ’’ Id. Specifically, some impetus for a firing sequence’ as stated such stocks were not of these rulings concluded that such described.’’ machineguns because ‘‘[b]ump firing devices were not machineguns because Several commenters raised specific requires the shooter to manually and they did not ‘‘‘initiate [ ] an automatic objections to ATF’s description in the simultaneously pull and push the firing cycle that continues until either NPRM that a bump-stock-type device firearm in order for it to continue the finger is released or the ammunition ‘‘harnesses the recoil energy [of a firing.’’ Brief for ATF in Support of supply is exhausted,’ ’’ but did not firearm] to slide the firearm back and Motion for Summary Judgment and in provide a definition or explanation of forth so that the trigger automatically re- Opposition to Plaintiff’s Motion for the term ‘‘automatically.’’ Id. at 13445. engages by ‘bumping’ the shooter’s Summary Judgment, ECF No. 28, at 21 This is precisely the purpose of this stationary trigger finger without (July 27, 2017). These prior decisions rule. As explained in more detail in Part additional physical manipulation of the and admissions, commenters argued, III, the Department has determined that trigger by the shooter’’ and that the preclude the Department from suddenly bump-stock-type devices enable a device is ‘‘a self-acting and self- reversing its decision. shooter to initiate an automatic firing regulating force that channels the firearm’s recoil energy in a continuous Department Response sequence with a single pull of the trigger, making the devices back-and-forth cycle that allows the The Department acknowledges that machineguns under the NFA and GCA. shooter to attain continuous firing after ATF previously determined that certain Consistent with the APA, this rule is the a single pull of the trigger so long as the bump-stock-type devices were not appropriate means for ATF to set forth trigger finger remains stationary on the ‘‘machineguns’’ under the law. The its analysis for its changed assessment. device’s extension ledge (as designed).’’ Department notes, however, that a great 83 FR at 13443. These commenters See Motor Vehicle Mfrs. Ass’n v. State deal of its analysis in the Freedom disputed these descriptions, stating that Farm Mut. Auto Ins. Co., 463 U.S. 29, Ordnance litigation was fully consistent a bump-stock-type device does not with its position in this rule. For 57 (1983). harness any recoil energy and there is example, the Department adhered to its nothing that makes it an energy sink view that a single pull is a ‘‘single (such as a spring) that stores recoil

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66532 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

energy to move the firearm forward. (approximately 1.5 inches) in shoot ‘‘automatically’’ when equipped Further, they argued that further constrained linear rearward and forward with bump-stock-type devices in that physical manipulation is required to paths.’’ Id. This is a distinctive feature their recoil energy is channeled through operate a firearm equipped with a of bump-stock-type devices and enables these ‘‘self-acting or self-regulating bump-stock-type device—specifically, the unique functioning and operation of mechanisms.’’ The commenters’ the shooter must physically manipulate these devices. The bump-stock-type positions reflect previous analysis that the trigger after every shot fired by device captures and harnesses the ATF is now correcting. ATF explained pushing the firearm forward to re- firearm’s recoil to maintain a above that ‘‘[p]rior ATF rulings engage the trigger. continuous firing sequence, and thus is concerning bump-stock-type devices The bump-stock firing sequence is not properly described as ‘‘a self-acting or have not provided substantial legal automatic, commenters argued, because self-regulating mechanism.’’ The very analysis regarding the meaning of the trigger reset is not caused by a purpose of a bump-stock-type device is term ‘automatically’ as it is used in the mechanical device, part, or combination to eliminate the need for the shooter to GCA and NFA.’’ 83 FR at 13445. of parts associated with pulling the manually capture, harness, or otherwise The Department disagrees that a trigger. Reset occurs, they said, only if utilize this energy to fire additional shooter repeatedly actuates, functions, continuous forward motion and rounds, as one would have to do to or pulls the trigger of a semiautomatic pressure is applied by the non-trigger ‘‘bump fire’’ without a bump-stock-type firearm using a bump-stock-type device hand or arm of the shooter, not the device. Further, this mechanism ‘‘allows with the non-trigger hand by ‘‘pushing device. As described by some the firing of multiple rounds through a the firearm forward.’’ In fact, the shooter commenters, ‘‘[t]he trigger of a single function of the trigger’’ because, ‘‘pulls’’ the trigger once and allows the semiautomatic firearm in a bump-stock as explained in the NPRM, ATF’s firearm and attached bump-stock-type type device is being repeatedly actuated, interpretation that the phrase ‘‘single device to operate until the shooter functioned, pulled (take your pick) by function of the trigger’’ includes a releases the trigger finger or the constant the non trigger hand of the shooter ‘‘single pull of the trigger’’ ‘‘is forward pressure with the non-trigger pushing the firearm forward. That consonant with the statute and its hand. The non-trigger hand never comes actuation, function, [or] pull can and legislative history.’’ Akins v. United in contact with the trigger and does not often does occur entirely independent of States, 312 F. App’x 197, 200 (11th Cir. actuate, function, or pull it. By recoil. Recoil is incidental to the firing 2009) (per curiam). maintaining constant forward pressure, sequence of a bump-stock type device The Department agrees with the a shooter relies on the device to capture equipped semiautomatic firearm, not commenters that ‘‘[n]o part of the bump and direct recoil energy for each intrinsic.’’ In challenging ATF’s stock touches the trigger, only the subsequent round and requires no proposed rule and description of how shooter[’]s trigger finger.’’ However, this further manipulation of the trigger itself. these devices operate, one commenter is neither legally nor technically In this way, the Department also asked ATF to provide the history of the determinative. The fact that a bump- disagrees that ‘‘[r]ecoil is incidental to machinegun and semiautomatic stock-type device does not touch the the firing sequence of a bump-stock type firearms, along with a discussion of the trigger does not mean that the device device equipped semiautomatic firearm, differences between the mechanical and has not acted automatically (by not intrinsic.’’ Without recoil and the legal definitions. directing and utilizing recoil energy) or capture and directing of that recoil In sum, commenters argued that that anything other than a single pull of energy, a bump-stock-type device would because ATF’s premise of how bump- the trigger occurred. That is, the bump- be no different from a traditional stock-type devices operate is inaccurate, stock-type device remains ‘‘a self-acting shoulder stock. As numerous there is no basis for ATF to regulate or self-regulating mechanism’’ for the commenters acknowledged, bump- them as machineguns. reasons described in this section. The stock-type devices allow shooters to fire Department Response fact that bump-stock-type devices do not semiautomatic firearms at a faster rate touch the trigger does not mean that The Department disagrees that ATF’s and in a different manner than they they do not qualify as machineguns could with traditional shoulder stocks. description of how bump-stock-type within the meaning of the NFA and Bump-stock-type devices do this by devices operate is inaccurate. ATF GCA. ATF has provided a thorough capturing and directing recoil explained that bump-stock-type devices explanation of their functioning, mechanically, enabling continuous fire ‘‘are generally designed to operate with showing that a semiautomatic firearm without repeated manual manipulation the shooter shouldering the stock of the utilizing a bump-stock-type device of the trigger by a shooter. device (in essentially the same manner ‘‘shoots automatically more than one a shooter would use an unmodified shot, without manual reloading, by a b. Bump-Stock-Type Device Firing semiautomatic shoulder stock), single function of the trigger.’’ 26 U.S.C. Technique maintaining constant forward pressure 5845(b). Comments Received with the non-trigger hand on the barrel- Additionally, the Department shroud or fore-grip of the rifle, and disagrees that to be classified as a Thousands of commenters objected to maintaining the trigger finger on the ‘‘machinegun’’ under the NFA, a firearm the proposed rule on grounds that device’s extension ledge with constant must fire ‘‘repeatedly’’ when a shooter bump-stock-type devices are novelty rearward pressure.’’ 83 FR at 13443. The holds and fires the gun with only the items that assist with bump firing, Department believes that this accurately trigger-finger hand. Any such argument which is a technique that any shooter describes the operation of these devices. misconstrues the meaning of can perform with training or with Further, ATF explained that bump- ‘‘automatically.’’ As explained above, everyday items such as a rubber band or stock-type devices ‘‘are designed to bump-stock-type devices operate loop. Many commenters stated that allow the shooter to maintain a automatically because their design all semiautomatic firearms can be bump continuous firing cycle after a single eliminates the requirement that a fired by a shooter simply holding the pull of the trigger by directing the recoil shooter manually capture and direct trigger finger stationary and pushing the energy of the discharged rounds into the recoil energy to fire additional rounds. weapon forward until the trigger is space created by the sliding stock In this way, semiautomatic firearms depressed against it to the point of

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66533

firing, and that use of bump-stock-type but relies on the shooter—not a device— FR at 13443–44). Commenters objected devices makes using the bump-fire to harness the recoil energy so that the to classifying bump-stock-type devices shooting technique safer for the shooter trigger automatically re-engages by as machineguns because ‘‘a high rate of and those around the shooter. Some ‘‘bumping’’ the shooter’s stationary fire alone does not transform a semi- commenters also gave examples of trigger finger. Unlike a bump-stock-type automatic into an automatic weapon extremely skilled and fast shooters who device, the belt loop or a similar manual under the NFA.’’ do not need any assistive device or item method requires the shooter to control Additionally, other commenters to fire a semiautomatic firearm at a the distance that the firearm recoils and objected to classifying other ‘‘rate- rapid rate. Commenters therefore argued the movement along the plane on which increasing devices’’ as machineguns that if the Department proceeds to the firearm recoils. because doing so would require a prohibit possession of bump-stock-type ATF’s previous bump-stock-type standard rate of fire to be defined, devices they must also ban rubber device classifications determined that which some said is impossible, or bands, belt loops, string, or even these devices enable continuous firing would capture certain semiautomatic people’s fingers. by a single function of the trigger. Other firearms and firearms accessories. A few firing techniques may do the same commenters pointed out that ‘‘[t]rue Department Response because they rely on a single ‘‘pull.’’ machine guns do not require freedom to The Department disagrees with However, as ATF has made clear, a oscillate fore and aft to increase their commenters’ assessments and believes determining factor is whether the device rate of fire. The rate of fire of a machine that bump-stock-type devices are operates or functions automatically. The gun is intrinsic to the weapon and objectively different from items such as proposed and final rules make clear that completely independent of the shooter’s belt loops that are designed for a if a device incorporates a self-acting or manual dexterity, the firing position, the different primary purpose but can serve self-regulating component for the firing number of hands holding the firearm, an incidental function of assisting with cycle, the firearm equipped with the and any degree of freedom of motion. bump firing. To bump fire a firearm device operates automatically. Again, . . . Bump stocks do not increase the using a belt loop or a similar method this differs from traditional rate of fire when the semiautomatic without a bump-stock-type device, a semiautomatic firearms because the firearm is operated with only one shooter must put his thumb against the trigger must be repeatedly manipulated hand—even when shouldered. The trigger and loop that thumb through a by the shooter to fire additional rounds, human element is indispensable to any belt loop. With the non-trigger hand, the whereas a bump-stock-type device firing rate increase achieved with a shooter then pushes the firearm forward allows for a single pull, and the self- bump stock.’’ until the thumb engages the trigger and acting or self-regulating device Department Response the firearm fires. The recoil pushes the automatically re-engages the trigger firearm backwards as the shooter finger. The Department has neither proposed controls the distance of the recoil, and Further, while skilled shooters may be the rate of fire as a factor in classifying the trigger resets. The constant forward able to fire more rapidly than a shooter machineguns, nor utilized this as the pressure with the non-trigger hand employing a bump-stock-type device on applicable standard in the proposed pushes the firearm forward, again a semiautomatic firearm, they do so by rule. The Department disagrees with any pulling the firearm forward, engaging pulling and releasing the trigger for each assertion that the rule is based upon the the trigger, and firing a second round. shot fired. This is a fundamental increased rate of fire. While bump- This rule defines the term distinction between skilled shooters and stock-type devices are intended to ‘‘automatically’’ to mean ‘‘functioning those employing bump-stock-type increase the rate at which a shooter may as the result of a self-acting or self- devices. Bump-stock-type devices fire a semiautomatic firearm, this rule regulating mechanism.’’ Bump-stock- require that a shooter pull the trigger to classifies these devices based upon the type devices enable semiautomatic fire the first round and merely maintain functioning of these devices under the firearms to operate ‘‘automatically’’ the requisite pressure to fire subsequent statutory definition. The Department because they serve as a self-acting or rounds. This is the purpose of a bump- believes that bump-stock-type devices self-regulating mechanism. An item like stock-type device—to make rapid firing satisfy the statutory definition of a belt loop is not a ‘‘self-acting or self- easier without the need to pull and ‘‘machinegun’’ because bump-stock-type regulating mechanism.’’ When such release the trigger repeatedly. This devices utilize the recoil energy of the items are used for bump firing, no shows that skilled shooters would be firearm to create an automatic firing device is present to capture and direct unaffected by the proposed rule and sequence with a single pull of the the recoil energy; rather, the shooter counters commenters’ arguments that trigger. The rate of fire is not relevant to must do so. Conversely, bump-stock- the rule is ‘‘arbitrary and capricious’’ on this determination. type devices are specifically designed to these grounds. The Department also agrees with capture the recoil energy, a force that commenters that the standard rate of fire initiates a firing sequence that 11. Proposed Definitions of a semiautomatic firearm or ultimately produces more than one shot. a. Vagueness—Rate of Fire machinegun is a characteristic that is That firing sequence is ‘‘automatic’’ not dependent upon the individual because the device harnesses the Comments Received shooter. Any reference to the firearm’s recoil energy as part of a Many commenters focused on the ‘‘increased’’ rate of fire attributable to continuous back-and-forth cycle that increased rate of fire associated with bump-stock-type devices refers only to allows the shooter to attain continuous bump-stock-type devices and objected the increased rate of fire that a firing after a single pull of the trigger. to the proposed regulation being ‘‘based, particular shooter may achieve. Further, Bump firing utilizing a belt loop or at least in part, on the idea that bump the Department agrees that there is no similar method of maintaining tension stocks are machineguns because they rate of fire that can identify or on the firearm is thus more difficult ‘allow[ ] ‘‘rapid fire’’ of the differentiate a machinegun from a than using a bump-stock-type device. In semiautomatic firearm,’ ‘increase the semiautomatic firearm. This is because fact, the belt-loop method provides a rate of fire of semiautomatic firearms,’ the statutory definition alone stabilizing point for the trigger finger and ‘mimic automatic fire’ ’’ (quoting 83 determines whether a firearm is a

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66534 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

machinegun. The Department believes to a semiautomatic rifle (as defined in section design requires that the shooter take that the final rule makes clear that a 921(a)(28) of title 18, United States Code); (2) action to manually load the firearm for bump-stock-device will be classified as is designed and intended to repeatedly each shot fired. a machinegun based only upon whether activate the trigger without the deliberate and The Department disagrees that volitional act of the user pulling the trigger the device satisfies the statutory each time the firearm is fired; and (3) ‘‘automatically’’ should be defined definition. functions by continuous forward pressure using the more extensive definition quoted above. Whereas analysis as to b. Vagueness—Impact on applied to the rifle’s fore end in conjunction what constitutes a ‘‘single function of Semiautomatic Firearms and Other with a linear forward and backward sliding motion of the mechanism utilizing the recoil the trigger’’ is separate from whether a Firearm Accessories energy when the rifle is discharged. firearm shoots automatically, the Comments Received One commenter suggested that, instead commenter’s proposed definition More than 56,000 commenters, of trying to define a bump-stock-type merges the two issues. The Department including those submitting through the device, it would be better to issue a rule believes that this may lead to confusion, three main form letters opposing the stating that one cannot modify or further complicate the issue, and result rule and the NAGR submission, replace the current style of stock with in further questions that require indicated that the proposed rule would one that contains other features, with clarification. set a dangerous precedent because a exceptions for adjusting the length of c. Concerns Raised by Equating future ‘‘anti-gun Administration’’ will the stock or having a cheek rest. ‘‘Function’’ and ‘‘Pull’’ use it to confiscate millions of legally Department Response owned semiautomatic firearms as well Comments Received as firearm components and accessories. The Department disagrees that other One commenter said drafters of the Commenters opposed to the rule firearms or devices, such as rifles, NFA chose the term ‘‘function’’ broadly argued that by classifying shotguns, and binary triggers, will be intentionally and that by proposing to bump-stock-type devices as reclassified as machineguns under this equate ‘‘function’’ with ‘‘pull,’’ a whole machineguns, AR–15s and other rule. Although rifles and shotguns are new fully automatic non-machinegun semiautomatic firearms also may be defined using the term ‘‘single pull of market will be opened because ‘‘fire classified as machineguns. In particular, the trigger,’’ 18 U.S.C. 921(a)(5), (7), the initiated by voice command, electronic commenters stated that under the GCA, statutory definition of ‘‘machinegun’’ switch, swipe on a touchscreen or pad, rifles and shotguns are defined using a also requires that the firearm ‘‘shoots or any conceivable number of interfaces ‘‘single pull of the trigger’’ standard, in automatically more than one shot, [does] not requir[e] a pull.’’ The contrast to machineguns, which are without manual reloading,’’ by a single commenter suggested that ‘‘single defined by a ‘‘single function of the function of the trigger, 26 U.S.C. function of a trigger’’ be defined to trigger’’ standard under the NFA. 5845(b). While semiautomatic firearms include but not be limited to a pull, as Commenters argued that by defining may shoot one round when the trigger that would include bump-stock-type ‘‘single function of the trigger’’ to mean is pulled, the shooter must release the devices without opening a ‘‘can of ‘‘single pull of the trigger,’’ the rule will trigger before another round is fired. worms.’’ bring all semiautomatic rifles and Even if this release results in a second shotguns currently regulated under the shot being fired, it is as the result of a Department Response GCA under the purview of the NFA. separate function of the trigger. This is The proposed addition to the Commenters also argued that the also the reason that binary triggers regulatory definition of machinegun proposed regulatory text encompasses a cannot be classified as ‘‘machineguns’’ includes this statement: ‘‘For purposes number of commercially available under the rule—one function of the of this definition, the term ‘single items, such as Gatling guns, competition trigger results in the firing of only one function of the trigger’ means a ‘single triggers, binary triggers, Hellfire trigger round. By contrast, a bump-stock-type pull of the trigger.’ ’’ The Department mechanisms, or even drop-in device utilizes the recoil energy of the believes that the commenter is correct— replacement triggers. One commenter firearm itself to create an automatic this proposed definition may lead to pointed out that the language ‘‘firing firing sequence with a single pull of the confusion. The proposed definition without additional physical trigger. The Department notes that ATF suggests that only a single pull of the manipulation of the trigger by shooter’’ has already described a ‘‘single pull of trigger will qualify as a single function. would apply, for instance, to Model 37 the trigger’’ as a ‘‘single function of the However, it is clear that a push or other pump shotguns made by Ithaca. trigger.’’ See ATF Ruling 2006–2. method of initiating the firing cycle Several commenters said that the Further, while the phrase ‘‘firing must also be considered a ‘‘single proposed rule should be more narrowly without additional physical function of the trigger.’’ Machineguns tailored so that it applies to bump-stock- manipulation of the trigger by the such as the M134 Minigun utilize a type devices only. For instance, one shooter’’ would apply to firearms like button or an electric switch as the commenter proposed that the following the Model 37 pump shotguns made by trigger. See 83 FR at 13447 n.8 be added to the definition of bump- Ithaca, that firearm could not be (explaining that other methods of trigger stock-type device: ‘‘A single accessory classified as a machinegun under the activation are analogous to pulling a capable of performing the roles of both rule. The Model 37 permits a shooter to trigger). a pistol grip and a shoulder stock.’’ pull the trigger, hold it back, and pump Therefore, the Department concurs Another commenter suggested that, at the fore-end. The pump-action ejects the with the commenters and has modified most, one sentence could be added at spent shell and loads a new shell that the proposed definition so that in this the end of the definition of fires as soon as it is loaded. While this final rule the regulatory text will state ‘‘machinegun’’: operates by a single function of the that ‘‘single function of the trigger’’ For purposes of this definition, the term trigger, it does not shoot means a ‘‘single pull of the trigger’’ and ‘‘automatically’’ as it modifies ‘‘shoots, is ‘‘automatically,’’ and certainly does not analogous motions rather than a ‘‘single designed to shoot, or can be readily restored shoot ‘‘without manual reloading.’’ 26 pull of the trigger.’’ Although the case to shoot,’’ means a device that—(1) attaches U.S.C. 5845(b). In fact, the pump-action law establishes that a ‘‘single pull’’ is a

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66535

‘‘single function,’’ those cases were of ‘‘machinegun’’ under the NFA, so can be accomplished by using other addressing devices that relied on a regulatory action is necessary to everyday items such as belt loops or single pull of the trigger, as opposed to implement the NFA and GCA. rubber bands. See Part IV.10.b. No some other single motion to activate the commenter said that solely using rubber 2. First ATF Alternative—No Regulatory trigger. The term ‘‘single function’’ is bands or other items would be a Action reasonably interpreted to also include satisfactory alternative if the proposed other analogous methods of trigger Comments Received rule went into effect. Rather, these activation. Commenters opposed to the commenters made the point that if bump firing is possible with or without E. ATF Suggested Alternatives regulation implicitly agreed with the first alternative listed by ATF, which is bump-stock-type devices, then the 1. General Adequacy of ATF for the Department not to take any Department would be obliged to also Alternatives action. They argued that attention prohibit possession of rubber bands and Comments Received should be devoted to improving the belt loops under the NFA. One commenter opposed to the rule background check system, that ATF Department Response should concentrate on enforcing the suggested that the alternatives discussed The Department has detailed in the existing gun laws, or that if there is to in the NPRM were not in compliance NPRM and this rule the distinction be change, that change should be made with Office of Management and Budget between bump firing with a bump- by Congress or the States. One (OMB) Circular A–4 guidance, and that stock-type device and using belt loops commenter argued ATF failed to ATF failed to consider available or rubber bands. See Part IV.10.b. alternatives and the impact on properly analyze this alternative. Although a shooter using a belt loop, innovation. In addition, the commenter Department Response string, or other manual method utilizes stated that ATF failed to show a need As explained above, Part IV.D.4, the recoil energy to bump fire, the shooter for the rule and argued that ATF did not Department has concluded that the NFA is responsible for constraining the make a good-faith attempt to meet its and GCA require regulation of bump- firearm, maintaining the correct finger statutory mandate to identify, analyze, stock-type devices as machineguns, and pressure, and regulating the force and rule out feasible alternatives. One that taking no regulatory action is necessary to fire continuously. This is commenter suggested that the analysis therefore not a viable alternative to this clearly distinguishable from a bump- of alternatives should include rule. stock-type device, as ATF has explained alternatives provided under OMB that such a device functions ‘‘as a self- Circular A–4, which include tort 3. Second ATF Alternative—Shooting acting and self-regulating force that liability, criminal statutes, and Ranges channels the firearm’s recoil energy in punishments for violating statutes. Comments Received a continuous back-and-forth cycle that Department Response allows the shooter to attain continuous Commenters who suggested that firing after a single pull of the trigger so OMB Circular A–4 requires the bump-stock-type devices be used in a long as the trigger finger remains consideration of ‘‘possible alternatives’’ controlled setting, or be available only stationary on the device’s extension 8 to regulation. ATF considered possible at shooting ranges, were largely in ledge.’’ 83 FR at 13443. Based on the alternatives that it could legally employ support of the rule rather than viewing clear differences between bump-stock- under the NFA, as many of the it as a complete alternative to taking no type devices and manual means of suggested alternatives from regulatory action. bump firing, the Department disagrees commenters—e.g., grandfathering and Department Response with the commenters that manual reimbursement policies—are not means of bump firing are factually or The Department acknowledges possible given the legal constraints of technically equivalent to bump-stock- comments on the potential use of bump- existing ATF authority. OMB Circular type devices. A–4 stipulates, ‘‘The number and choice stock-type devices in a controlled of alternatives selected for detailed setting, such as a . As F. Other Alternatives stated above, the Department believes analysis is a matter of judgment. There 1. Allow Registration or Grandfathering that such items satisfy the statutory must be some balance between of Bump-Stock-Type Devices Under definition of ‘‘machinegun,’’ and thoroughness and the practical limits on NFA [the agency’s] analytical capacity.’’ 9 therefore it is promulgating this rule to Circular A–4 adds that ‘‘analyzing all clarify the definition. ATF has Comments Received possible combinations is not practical previously held that the on-premises Several hundred commenters argued when there are many options (including rental of NFA firearms is permitted. that ATF should announce an amnesty possible interaction effects).’’ 10 In these However, whereas machineguns that are period, allowing time for current owners cases, the agency is to use its judgment currently available for rental at shooting of bump-stock-type devices to register to choose reasonable alternatives for ranges are lawfully registered in the them as NFA firearms in the NFRTR. careful consideration. During NFRTR if they may be lawfully These commenters argued that pursuant formulation of the NPRM, ATF possessed under 18 U.S.C. 922(o)(2)(B), to section 207(d) of the GCA, the considered various alternatives, bump-stock-type devices cannot be Attorney General has power to establish including examples provided under registered because none were in amnesty periods for up to 90 days. OMB Circular A–4, and deemed them existence when section 922(o) was Further, they argued there is precedent inappropriate. ATF believes that bump- enacted in 1986. for an amnesty period, pointing to the stock-type devices satisfy the definition 4. Third ATF Alternative—Use Other seven-year amnesty/registration period Means that was allowed for the Striker-12/ 8 OMB Circular A–4, Regulatory Analysis, at 2 Streetsweeper and USAS–12 shotguns. (Sept. 17, 2003), https://www.whitehouse.gov/sites/ Comments Received whitehouse.gov/files/omb/circulars/A4/a-4.pdf. See ATF Rulings 94–1, 94–2. Doing so, 9 Id. at 7. Many commenters opposed to the they argued, would save the 10 Id. at 11. rulemaking pointed out that bump firing Government from having to compensate

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66536 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

current owners of bump-stock-type such open-ended amnesty.’’ See id. at 3. Remuneration devices and also even generate money 248. Comments Received for the Government, as individuals Some commenters pointed to ATF Over 1,000 commenters opposed to would be required to pay a $200 tax on Rulings 94–1 and 94–2 as precedent for the devices. See 26 U.S.C. 5821. the rule argued that compensation an amnesty period; however, section should be provided to owners of bump- Department Response 922(o) applies only to machineguns, and stock-type devices. Several supporters The Department disagrees that an there was no similar restriction on the of the rule also suggested there should amnesty period is possible in this destructive devices at issue in ATF be a buy-back program in order to scenario. While in 1968 Congress left Rulings 94–1 and 94–2. Therefore, these reduce the number of bump-stock-type open the possibility of future amnesty rulings cannot serve as precedent in the devices. One commenter more registration of firearms subject to the present case. specifically stated that manufacturers or NFA, ATF has long held that it 2. Licensing and Background Checks retailers should be required to buy back eliminated any possible amnesty for all such devices and make full refunds machineguns in 1986. Following Comments Received to all purchasers. Another supporter passage of 18 U.S.C. 922(o), ATF suggested a one-time tax credit to Numerous commenters suggested advised the industry and the public that owners who surrender their bump- other methods for how bump-stock-type amnesty registration of machineguns stock-type devices or provide proof of devices should be regulated, including was not legally permissible. For destruction. methods involving background checks. example, in 1996 and 1997, ATF Department Response advised an industry member that: Some commenters broadly suggested that these devices should be sold like 18 U.S.C. 922(o) would preclude the The Department acknowledges firearms under the GCA, meaning that comments on compensation for current registration of machineguns during an the purchaser would undergo a amnesty period. Section 922(o) prohibits owners of bump-stock-type devices. possession of machineguns which were not background check when acquiring one While ATF has the authority to lawfully possessed prior to its effective date from a retailer. One commenter implement the NFA and GCA, the of May 19, 1986 .... Since 922(o) [was suggested a new ‘‘2.5 firearms class’’ Department does not have the necessary enacted after the amnesty provision of the that would cover ‘‘grey area’’ guns and Federal appropriations to implement a NFA], its provisions would prevail over any accessories, like bump-stock-type buy-back program or offer monetary earlier enactment in conflict. This means that devices. Possessors of items falling compensation. To implement a buy- any future amnesty period could not permit under the ‘‘2.5 firearms class’’ would the lawful possession and registration of back program or provide a tax credit machineguns prohibited by section 922(o). undergo background checks and, as would require congressional action. with State-issued concealed-carry Letter for C. Michael Shyne from ATF’s permits, local law enforcement would 4. Medical Exemption National Firearms Act Branch Chief be able to cancel privileges if necessary. Comments Received (March 10, 1997). Section 922(o) does Other commenters suggested that bump- Some commenters suggested that not ban the private possession and stock-type devices should not be transfer of all machineguns because it Department amend the proposed rule so available to the public unless the it would provide an exemption for specifically excludes ‘‘any lawful possessor is licensed, passes a transfer or lawful possession of a ‘‘medical necessity,’’ thereby allowing background check, or provides a valid certain individuals, such as those with machinegun that was lawfully reason for needing a bump-stock-type possessed before the date [section nerve damage or one functional arm, to device. Another commenter suggested 922(o)] takes effect.’’ 18 U.S.C. possess bump-stock-type devices. bump-stock-type devices should be 922(o)(2)(B). The intent of the statute Similarly, commenters suggested bump- regulated like ‘‘any other weapon’’ was to limit transactions in post-1986 stock-type devices should only be under the NFA, 26 U.S.C. 5845(e), so machineguns. See United States v. available for people who are physically that current owners could register them Ferguson, 788 F. Supp. 580, 581 (D.D.C. unable to pull a trigger for hunting or by paying a $5 fee, allowing a waiting 1992) (‘‘Under section 922(o)(2)(B), target practice. period to elapse, and establishing a certain machineguns, namely, those that paper trail of ownership. Department Response were lawfully possessed before enactment of the statute in 1986, may be Department Response The Department does not have legally possessed and transferred even authority to create a medical exemption today.’’); see also United States v. The Department acknowledges these for the possession of machineguns. O’Mara, 827 F. Supp. 1468, 1470 n.4 suggested alternatives but does not have Pursuant to the NFA and GCA, for (C.D. Cal. 1993) (citing Ferguson). the authority to add a new class of private possession of machineguns to be Congress’s goal was to ban the transfer firearms to the statutory scheme or lawful, they must have been lawfully and possession of such weapons impose licensing requirements to possessed before the effective date of 18 outright. United States v. Hunter, 843 F. acquire a firearm. Such changes would U.S.C. 922(o). Supp. 235, 247–48 (E.D. Mich. 1994). require legislation. Further, the 5. Allow Removal of Trigger Ledge The legislative history supports this definition of ‘‘any other weapon’’ in the proposition. When asked whether an NFA does not apply to bump-stock-type Comments Received amnesty period could ‘‘be devices. Because bump-stock-type One commenter suggested that ‘‘ATF administratively declared by the devices are properly classified as could find that bump-stock-type devices Secretary of the Treasury by the ‘‘machineguns’’ under the NFA and with the ledge/rest removed are not enactment of this bill,’’ Senator GCA, the Department believes that ATF affected by any additional regulation.’’ Kennedy responded that ‘‘[t]here is must regulate them as such, and that the The commenter argued that this would nothing in the bill that gives such an recommended alternatives are not make the proposed rule ‘‘logically authority, and there is clearly no valid possible unless Congress amends the consistent with the notion that operators law enforcement goal to be achieved by NFA and GCA. may ‘bump fire’ with or without a

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66537

bump-stock-type device, as long as they Accordingly, the Attorney General has Alternatively, wherever quantifiable do not utilize a device allowing a fixed the authority to promulgate regulations means were not available, the trigger finger.’’ necessary to enforce the provisions of Department considered qualitative the NFA and GCA, and the Department Department Response costs, benefits, concerns, and determined that notice-and-comment justifications. The Department does not believe that rulemaking was the appropriate avenue removing the trigger ledge is sufficient This rule is a significant regulatory to clarify the definition of action that clarifies the statutory to affect a bump-stock-type device’s ‘‘machinegun.’’ In the interest of public classification as a machinegun. While definition of machinegun. By clarifying safety and in light of the statutory that bump-stock-type devices are the trigger ledge makes it easier to definition of ‘‘machinegun,’’ the utilize the device, removing the ledge machineguns subject to the restrictions Department has determined that Federal of the NFA and GCA, the rule in effect does nothing to prevent the directing of regulation of bump-stock-type devices is the ‘‘recoil energy of the discharged removes those devices from the civilian necessary. However, this action does not marketplace. This final rule is an rounds into the space created by the prevent Congress from taking action on sliding stock (approximately 1.5 inches) Executive Order 13771 regulatory bump-stock-type devices in the future. action. See OMB, Guidance in constrained linear rearward and The Department acknowledges Implementing Executive Order 13771, forward paths.’’ 83 FR at 13443. comments on improving security at Titled ‘‘Reducing Regulation and Therefore, even without the trigger mass-attended events and agrees that it Controlling Regulatory Costs’’ (Apr. 5, ledge, the bump-stock-type device will is important to improve law 2017). operate as designed if the shooter enforcement capabilities. The simply holds his or her finger in place. Department actively works with State As for the need for Federal regulation, As such the bump-stock-type device and local law enforcement agencies to agencies are allowed to consider public remains a ‘‘machinegun’’ under the NFA provide security at mass-attended safety as a compelling need for a Federal and GCA. events, as well as training and rulemaking. Executive Order 12866 6. Miscellaneous Alternatives To equipment for their departments. expressly recognizes as appropriate Regulate Bump-Stock-Type Devices exercises of agency rulemaking G. Proposed Rule’s Statutory and authority that ‘‘are made necessary by Comments Received Executive Order Review compelling public need, such as Other miscellaneous comments Comments Received material failures of private markets to included suggesting a ban only on protect or improve the health and safety future production and commercial sale A few commenters suggested that ATF failed to comply with Executive of the public, the environment, or the of such items; enacting a quota on the well-being of the American people.’’ 58 number of devices that can be produced Orders 12866, 13563, and 13771, including failing to identify and repeal FR 51735 (Oct. 4, 1993). As explained or possessed; enacting a Pigouvian tax, in the NPRM, the purpose of this rule which is a tax imposed on a good that two regulations for every new regulation issued. Commenters argued that ATF is to amend ATF regulations to clarify is calculated to reduce market quantity that bump-stock-type devices are (and increase market price) in order to did not quantify the benefits of the rule, and it did not explain why those ‘‘machineguns’’ as defined by the NFA achieve the socially optimal level of the and GCA, with a desired outcome of good; deferring action until Congress benefits were unquantifiable as required by OMB Circular A–4. Commenters increasing public safety. In accordance takes action; leaving the matter for State with OMB Circular A–4, the Department legislative action; improving security at stated that ATF did not identify the need for the proposed rule, in that ATF has provided information wherever mass-attended events; and improving possible regarding the costs, benefits, law enforcement capabilities. cited no evidence to support that the Las Vegas shooter used a bump-stock- and justification of this rule. Department Response type device. One commenter asked that As further requested by one The Department acknowledges ATF demonstrate how the cost-benefit commenter, this rule not only considers comments on alternative suggestions for analysis shows that the proposed rule is the implications of this rule on gun the regulation of bump-stock-type in the interests of gun owners, business owners in the United States, business devices, but it does not have authority owners, and the Federal Government. owners, and the Federal Government, to implement many of the suggested The commenter further suggested that but also considers the risk of criminal alternatives. The Department does not ATF did not provide any citations or use of bump-stock-type devices and the have the authority to restrict only the peer-reviewed research as evidence of general safety of the public to justify the future manufacture or sale of bump- the need for Federal regulatory action. issuance of this final rule. stock-type devices, nor does it have the Lastly, some commenters questioned H. Affected Population authority to remove the general how ATF determined the negative prohibition on the transfer and externalities that were presented in the Comments Received possession of machineguns that were NPRM. not lawfully possessed on the effective There were a number of commenters Department Response date of 18 U.S.C. 922(o). In addition, the who stated this rule will affect between Department lacks the authority to enact Executive Order 12866 and OMB 200,000 and 500,000 owners. Some an excise tax on bump-stock-type Circular A–4 acknowledge that commenters suggested that the devices. regulatory agencies should comply with estimated number of bump-stock-type As mentioned above, the Department them wherever possible or feasible. The devices should be higher, potentially does not agree with commenters that Department interprets and adheres to over a million, than the estimated any change needs to be enacted by the existing Executive Orders and OMB amount stated in the NPRM. Some Congress or should be left to State Circular A–4 to the extent that it is commenters indicated that this would legislatures. Congress passed both the possible, using the best available incorporate homemade devices, 3D- NFA and GCA, delegating enforcement information, and to the extent printed devices, or other devices made authority to the Attorney General. quantified information was available. by personal means.

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66538 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

Department Response published in the NPRM), representing are all indirect or unquantifiable costs of In the NPRM, ATF did not estimate the high end of the range of rates. 83 FR the rule and are not considered in the the number of owners. 83 FR at 13449. at 13451. However, bump-stock-type cost-benefit analysis. The 280,000–520,000 range in the devices also sold for as low as $100. Id. In order to account for the full range of 2. Costs to Manufacturers, Employees, Executive Order 12866 section of the and Communities NPRM is the estimated number of prices, the Department used the average bump-stock-type devices in circulation, of the full range of prices; therefore, the Comments Received not the number of owners. While the average price of $301 was used in the Department does not know the total NPRM to account for the full range of Commenters suggested that this rule number of bump-stock-type devices market prices for these bump-stock-type will cost manufacturers, employees, and currently extant, nor the number of devices. Id. As for the payment of taxes, families of manufacturers their owners, the Department’s high estimate the Department concurs that an livelihood. In particular, one commenter of 520,000 is still the primary estimate unknown number of bump-stock-type- suggested that three additional only for devices sold on the market. devices were sold, and individuals paid manufacturers would have entered or While it may be possible to make local taxes on them at time of purchase. re-entered the market after the lapse of homemade devices, the Department For the purposes of this final rule, the the patent for the main manufacturer of cannot calculate the number of such Department maintains the average price bump-stock-type devices. Additionally, devices or the likelihood of these used in the NPRM but incorporates the public comments suggested that the devices circulating among the public. average cost of combined State and local Department overlooked the capital The Department is using the best taxes. For the purposes of this final rule, expenses required to start a company. the Department estimates that the available information, and there is no Department Response known information that would allow national average of taxes is 6.47% and ATF to estimate such a number, much attributed this tax rate to the price of all The Department has considered the less achieve the level of accuracy that bump-stock-type devices that were sold effect that this rule will have on these the public is requesting. Therefore, the on the market.11 manufacturers, employees, and families estimates provided continue to be based The Department disagrees that the and acknowledges that they will no upon the best available information. regulatory analysis did not account for longer be able to manufacture bump- the individual cost in purchasing bump- I. Costs and Benefits stock-type devices. The Department stock-type devices. The market price of acknowledges that there will be a 1. Costs to Purchasers bump-stock-type devices sold to the potential loss of wages from employees public represents the public price of Comments Received losing jobs from loss of manufacturing; these devices, which also accounts for One commenter stated that some however, the extent to which they are the manufacturer and retail prices and unable to find replacement jobs is models of bump-stock-type devices does not double-count costs. While it never sold for less than $425 plus taxes. speculative. The Department considered may be possible for the public to the capital expenses for manufacturers, Another commenter stated that the purchase a pre-1986 machinegun, these Department’s regulatory analysis did not including patents and equipment to amounts are not used to purchase start production. However, in light of account for the individual cost in bump-stock-type devices, so the market purchasing bump-stock-type devices, the Las Vegas shooting and the prices for these pre-1986 machineguns estimated time it would have taken for only manufacturers’ and retailers’ are not considered for purposes of this expenses. Other commenters suggested the patents to expire, the Department rule. has determined that there could be that the analysis did not account for The Department reached out to the potential crowding of additional taxes. One commenter suggested that commenter who discussed the manufacturers and saturation of the the costs should incorporate the cost of population of gun owners who will market for bump-stock-type devices. purchasing a pre-1986 machinegun. One need to replace their bump-stock-type Therefore, the viability of these commenter suggested that many owners devices with standard stocks. The businesses is speculative and the capital have bump-stock-type devices as the commenter was unable to provide a expenses that they incurred are a sunk only stocks that they own and that source establishing the existence of such cost for those who put in the expense. purchasing a standard stock will need to gun owners and only speculated that While the Department does not include be incorporated into the analysis. this was a possibility. Having capital expenses for manufacturing in Some commenters stated that the cost determined that this was speculation, the economic analysis, the Department analysis does not include compensation the Department declined to incorporate had already considered the overall for bump-stock-type devices and that this information into the analysis. the cost could be more than $50 trillion. The Department does not propose potential for return on investment for Other commenters indicated that the compensation for bump-stock-type any manufacturers who would have rule did not account for lost lives, devices, so these costs were not remained in the market from the treatment costs, decreased tourism, and included in the rule. See Part IV.D.1.b existing estimate of foregone costs of criminal investigations. Other for a discussion of the Fifth production. Accounting for capital commenters argued that ATF failed to Amendment’s Takings Clause. Further, expenses would be double counting of consider other costs, such as loss of costs associated with victims, criminal expenditures. Therefore, the economic faith in ATF by the regulated industry investigations, loss of tourism, loss of analysis for this portion remains the and resentment for not being faith in ATF by the regulated industry, same. reimbursed for bump-stock-type and resentment for not being 3. Costs of Litigation devices. reimbursed for bump-stock-type devices Department Response Comments Received 11 See Jared Walczak & Scott Drenkard, State and Commenters suggested that the The Department concurs that certain Local Tax Rates in 2017, Tax Found. (Jan. 31, 2017), models sold at the $425.95 rate (a rate https://taxfoundation.org/state-and-local-sales-tax- Department did not account for the cost also included in ATF’s range of costs rates-in-2017/. of litigation regarding the rule.

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66539

Department Response While the usage of bump-stock-type data, the Department has considered the devices may boost ammunition sales, qualitative benefits for this rulemaking. Litigation costs are not a direct cost of the Department did not consider the The Department did not account for the rule because such costs do not result loss of tax revenue collected from the cost of deaths and injuries unrelated from compliance with the rule. additional ammunition sales because to bump-stock-type devices, as these are Additionally, any estimate of litigation they are speculative and are not a direct unrelated to this rule. This rule does not expenses would be highly speculative cost of the rule. Additionally, any prohibit the use of firearms that could and would not inform the Department’s estimate of tax revenue generated would be used in shootings, or other items or decision regarding the implementation not inform the Department’s decision devices. Furthermore, it is unclear how of this final rule. However, the regarding the implementation of this risk associated with other devices such Department acknowledges that to the final rule. as motor vehicles should influence extent parties choose to enter into ATF’s decision-making. ATF has 5. Benefits litigation regarding this final rule, there provided a cost-benefit analysis in both are indirect costs associated with that Comments Received the NPRM and this final rule that fulfills litigation. the requirements of Executive Order Commenters stated that there are no 4. Government Costs 12866, OMB Circular A–4, the quantifiable benefits to justify the costs Regulatory Flexibility Act (RFA), and Comments Received of this rule, nor will it prevent criminal the Unfunded Mandates Reform Act. use of firearms. One commenter also Commenters suggested that this rule stated that ATF did not explain why the J. Regulatory Flexibility Act would cost the Government benefits were unquantifiable as required Comments Received approximately $297 million, including by OMB Circular A–4. Some the disposal cost of the bump-stock-type commenters suggested that ATF is Some commenters suggested that the devices. Other commenters indicated required ‘‘by law’’ to quantify and RFA requires examination of the future that confiscation costs were not monetize benefits. Commenters stated impact of the rule on innovation and of included in the cost of the rule. One that the benefits do not outweigh the making a lawful product into an commenter provided estimates on the costs and ATF failed to conduct any unlawful one. cost to house bump-stock-type device analysis of the benefits of the rule and Department Response owners in prison as felons, particularly did not quantify the benefits. Further, if a large number of owners opt not to commenters argued that ATF did not The Department disagrees that the destroy such devices. Lastly, one substantiate its assertion that bump- RFA requires an examination of those commenter suggested that ATF consider stock-type devices will be used more specific factors. The RFA ‘‘requires foregone sales taxes associated with frequently in future crimes if this rule agencies to consider the impact of their ammunition used to fire bump-stock- is not promulgated. regulatory proposals on small entities, type devices. analyze effective alternatives that One commenter argued that the minimize small entity impacts, and Department Response Department needed to separate the make their analyses available for public effects of using a bump-stock-type In the NPRM, the Department comment.’’ 12 The RFA ‘‘does not seek device from other factors that might estimated that the total cost of the rule preferential treatment for small entities, have incremental effects on criminal for the general public (e.g., owners and nor does it require agencies to adopt activity, such as crowd density and manufacturers of bump-stock-type regulations that impose the least burden angle of fire. The commenter stated that devices) would be about $326.2 million on them, or mandate exemptions for benefits must be reduced accordingly over a 10-year period, not that the rule them. Rather, it requires agencies to and must take into account a reduction would cost the Federal Government that examine public policy issues using an in violence instead of elimination of the amount. 83 FR at 13454. The analytical process that identifies barriers threat of violence from bump-stock-type Department’s estimate that Government to small business competitiveness and devices. Many commenters argued that costs are de minimis still stands for this seeks a level playing field for small ATF cannot rely on the Las Vegas final rule because the costs identified by entities, not an unfair advantage.’’ 13 shooting as the measure of benefits for these commenters are not Government The Department found that this rule this rule. expenditures. Further, costs associated significantly impacts small businesses with administering the option of current Commenters discussed means of related to bump-stock-type devices. The possessors of bump-stock-type devices monetizing shooting incidents or Department interprets the RFA to mean abandoning their devices at their local comparing the death rates related to that small businesses should not be ATF offices will be de minimis. The other items like motor vehicles, opiates, prevented from using innovations to Department also disagrees that this rule knives, and rocks. Other commenters in compete with other businesses, and to will turn owners of bump-stock-type support of the rule suggested that ATF account for small businesses when devices into felons. This final rule incorporate the financial and societal determining alternative approaches with provides an effective date that allows benefits of this rule. respect to small businesses in the ample time for current owners to Department Response field.14 At this time, there are only small destroy or abandon such devices. To the businesses that manufacture bump- extent that owners timely destroy or The Department declines to quantify stock-type devices; therefore, no abandon these bump-stock-type devices, benefits because OMB Circular A–4 regulatory alternative was considered to they will not be in violation of the law requires quantifying and monetizing or incarcerated as a result. However, if benefits only ‘‘if possible.’’ OMB 12 U.S. Small Business Administration, Office of prohibited bump-stock-type devices are Circular A–4 at 45. One commenter Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act, at 1 possessed after the effective date of the provided descriptions on how to (Aug. 2017), https://www.sba.gov/sites/default/files/ final rule, the person in possession of determine quantitative benefits of this advocacy/How-to-Comply-with-the-RFA-WEB.pdf. the bump-stock-type device will be in rule and specifics on using a break-even 13 Id. violation of Federal law. analysis; however, due to limitations on 14 Id.

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66540 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

alleviate the regulatory burden on small printing, or simply for anyone who individuals affordable access to businesses with respect to competition manufactures or distributes bump-stock- machineguns. A few commenters also with businesses that are not small. type devices. Another commenter added that silencers should be removed supporting the rule said that bump- from the NFA’s coverage or be made K. Miscellaneous Comments stock-type devices should be prohibited available like any other firearm device, Commenters both in support of and in from all public spaces where there is the with at least one commenter stating that opposition to the proposed rule raised potential for mass murder, but did not the Hearing Protection Act or additional miscellaneous issues. These object to persons who wanted to use Sportsmen’s Heritage and Recreational are discussed below. bump-stock-type devices on their own Enhancement (SHARE) Act should be 1. Improve Background Checks property or on hunting or shooting passed. grounds. Some commenters opined that Department Response Comments Received generally there should be more severe Separate from the suggested penalties for anyone using guns illegally The Department does not have the alternative, discussed above, that bump- or irresponsibly. A few commenters authority to repeal or amend provisions stock-type devices be sold like firearms, opposed to the rule suggested that in of the NFA, such as by removing many commenters voiced their general lieu of a rule prohibiting possession, a silencers from the NFA. The NFA is a support for various enhancements to the more effective deterrent would be severe statute, which only Congress may repeal existing Federal background check penalties for the manufacture and sale or alter. ATF does not have the requirement. Commenters said the ‘‘gun of bump-stock-type devices, and that authority to remove the general show loophole’’ should be closed, and there should instead be swift and severe prohibition on the transfer and many called for universal background punishment, such as the death penalty possession of machineguns that were checks. At least one commenter for persons who commit or attempt to not lawfully possessed before the date suggested there should be psychiatric commit a mass shooting, or, more 18 U.S.C. 922(o) became effective, nor evaluations for firearms purchasers. generally, that the law should be written does it have the authority to permit Commenters making these points were to include mandated, nondiscretionary nongovernmental entities to possess largely supporters of the proposed rule, sentences. machineguns or other NFA firearms that but at least a few commenters opposed Department Response are not lawfully registered in the to the rule also supported background NFRTR. Only Congress can alter these checks. One opposed commenter said The Department does not have the provisions. However, as stated, ATF better communication between the authority to increase criminal penalties. does have the authority to implement relevant government agencies and Only Congress can increase, amend, or the existing statute and has utilized the tighter background checks were needed. add new criminal penalties for Federal rulemaking process to do so. A few opposed commenters suggested it crimes. would be more effective to have a more 4. Focus on Mental Health and Other 3. Repeal the NFA and Hughes Gun Control Measures in-depth background check along with a Amendment, and Remove Silencers minimum age of 21 or 25 and a five-day Comments Received waiting period because they observed Comments Received that young, alienated people have Numerous commenters opposed to Supporters argued that in addition to frequently been the perpetrators of mass the regulation viewed the proposed rule finalizing the rule, more attention needs shootings. as an infringement on their rights. As to be paid to improving mental health care. Generally, these commenters Department Response part of their opposition to the proposed rule, some commented that the NFA suggested there should be more The Department acknowledges itself is inherently unconstitutional and spending on the mental health system comments on enhanced or expanded declared that it should be repealed. so as to increase access. background checks, an increase in Commenters similarly questioned the Numerous commenters in support of minimum age requirements, and waiting constitutionality of the Hughes the rule also listed several other periods. The Department is aware of the Amendment (18 U.S.C. 922(o)), which proposals pertaining to gun safety or importance of having accurate and was enacted as a part of the Firearms gun control measures that should be complete information available to the Owners’ Protection Act in 1986 and implemented. Almost 5,000 commenters NICS, which is managed by the FBI; prohibits possession by individuals of expressed that ‘‘other conversion further, the Department works with any post-1986 machinegun. These devices’’ along with bump-stock-type Federal and State agencies to ensure commenters declared it should be devices should be banned. And more that necessary information is submitted repealed. A majority of these than 1,500 commenters also called for a to the system. The Department does not, commenters simply objected to any ban on ‘‘assault weapons’’ or firearms however, have the authority to increase further firearms restrictions and insisted altogether, while several others the minimum-age requirement or enact these laws be repealed in order to specifically stated that there should be a mandatory waiting period to purchase restore freedoms they believe to have restrictions on high-capacity magazines. a firearm. been steadily eroded by the Some commenters provided many other 2. Increase Criminal Penalties Government. Some commenters noted suggestions, including a higher age limit that bump-stock-type devices evolved as to acquire a firearm, written tests for Comments Received a workaround to the NFA and Hughes firearm access, mandatory gun safety Commenters on both sides of the issue Amendment restrictions so that shooters classes, proper storage inspections, a suggested that there be more stringent could have an affordable alternative to nationwide gun registry, licensure and criminal penalties for firearms offenses. shoot in a manner that is close to a gun ownership insurance requirements, Some commenters in support of the rule machinegun. Some opined that that a ammunition limits, and protocols for said there should be severe penalties for rule prohibiting bump-stock-type removing firearms from domestic possessing a bump-stock-type device, or devices would be acceptable so long as abusers and the mentally ill through for manufacturing one through digital these other restrictions are lifted to give protective orders.

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66541

Department Response those affected . . . their procedural due. Department Response The Department acknowledges the More specifically, in the informal These comments are beyond the scope importance of improving mental health rulemaking context . . . , this inquiry of this rulemaking, but the Department care. However, mental health treatment asks whether the agency gave ‘interested notes that ATF has committed available does not fall under the Department’s persons an opportunity to participate in resources to develop the NPRM and authority. the rule making through submission of respond to comments as part of the Although this rulemaking specifically written (or other) data’ and whether it rulemaking process. In developing this addresses bump-stock-type devices, any ‘incorporate(d) in the rule adopted a rulemaking and responding to item that meets the definition of a concise general statement of their basis comments, ATF has followed all ‘‘machinegun’’ will be regulated as such and purpose.’ ’’ Weyerhaeuser Co. v. established procedures and complied and cannot be possessed unless legally Costle, 590 F.2d 1011, 1024 (D.C. Cir. with all relevant policies and registered. But only Congress can add 1978) (quoting 5 U.S.C. 553). A ‘‘notice requirements. additional requirements that must be of proposed rulemaking must provide 3. 90-Day Public Comment Period met in order to purchase a firearm. sufficient factual detail and rationale for The Department does not have the the rule to permit interested parties to Comments Received authority to remove firearms from comment meaningfully.’’ Honeywell One commenter asserted that the persons who are not prohibited from Int’l, Inc. v. EPA, 372 F.3d 441, 445 agency failed to provide the statutorily receiving or possessing them under (D.C. Cir. 2004) (internal quotation mandated 90-day public comment Federal law. Only Congress can amend marks omitted). period. The commenter relied on an or add new categories of prohibited online article that ‘‘detail[ed] the trials persons. The Department agrees with commenters that interested parties will and tribulations of trying to find the L. Comments on the Rulemaking Process not be able to make meaningful appropriate docket,’’ given that some comments upon an agency’s proposed commenters indicated that they 1. Availability of Supporting encountered a ‘‘Comment Period Documentation regulation if the notice ‘‘fails to provide an accurate picture’’ of the agency’s Closed’’ notification on the Comments Received reasoning. Conn. Light & Power Co. v. FederalRegister.gov website when the A handful of commenters argued that NRC, 673 F.2d 525, 528 (D.C. Cir. 1982). NPRM was published on March 29, 2018. The author of the online article the procedures of the APA were not Commenters fail, however, to recognize said that he submitted an inquiry to properly followed, in part because ATF that the text of the NPRM set out the ATF asking why the comment period did not include any supporting facts necessary to ‘‘provide an accurate appeared closed when it should have documentation on how it formulated its picture’’ of the Department’s reasoning. been open through June 27, 2018, and decision to regulate bump-stock-type In the NPRM, the Department devices. In particular, commenters why the website, at various times, articulated the reasons for its proposed depicted different numbers for the stated that although they submitted change in the classification of bump- Freedom of Information Act requests, amount of comments ATF received. The stock-type devices, provided detailed author’s description of events ATF did not make available its own descriptions and explanations of its prior letter determinations that concluded by noting that he received a prior classifications, and offered classified various bump-stock-type response from ATF with a specified thorough explanations of its past and devices as firearm parts not subject to weblink to Regulations.gov where he current analysis. Accordingly, the the NFA or GCA, nor did ATF make could submit a comment but that none available any evidence suggesting that Department believes that it provided of his comments submitted were visible there have been other instances of notice to the public, in sufficient factual on the website. Relying primarily on criminal use of a bump-stock-type detail, to permit interested parties to this online account, the commenter device. This kind of documentation, comment meaningfully on the proposed asserts that ATF did not disclose this they argued, would provide the basis rule. weblink to the public and that upon which the agency justified its 2. Previous ‘‘Lack of Candor’’ numerous people believed that the proposed rule and therefore should be comment period was closed from the made public in order to allow for Comments Received very beginning of the comment period meaningful comment under the APA. and were therefore precluded from One commenter also included an submitting comments. The commenter Department Response extensive description of ATF’s ‘‘prior therefore believes that the comment Contrary to the commenters’ lack of candor,’’ including instances period should be extended because ATF arguments, the Department believes that where ATF purportedly (1) committed did not permit the statutorily mandated it provided all of the background ‘‘institutional perjury’’ before the courts 90-day comment period. information necessary to allow in the context of criminal prosecutions meaningful public participation. The and supporting probable-cause Department Response APA, 5 U.S.C. 553(b), provides that showings for search warrants; (2) The Department acknowledges that ‘‘[g]eneral notice of proposed rule committed deception and delayed upon publication of the NPRM on making shall be published in the responding with respect to March 29, 2018, there was some Federal Register,’’ and that this notice congressional inquiries regarding confusion within the first 24 to 48 hours shall include, inter alia, ‘‘either the NFRTR inaccuracies as well the ‘‘Fast about submitting comments through the terms or substance of the proposed rule and Furious’’ investigation; and (3) Federal eRulemaking Portal or a description of the subjects and misled the public about the accuracy of (www.Regulations.gov), which is issues involved.’’ Federal courts have the NFRTR. According to the managed and maintained by a third- recognized that they must determine commenter, these episodes highlight a party host. ATF was in touch with the whether regulations are consistent with pattern of procedural irregularities that managers of the Federal eRulemaking statutes, and ‘‘whether the process used should draw further scrutiny of this portal, and relayed an explanation of in arriving at those regulations afforded rulemaking. these technical issues to the author of

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66542 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

the online article in two subsequent all comments submitted for the NPRM 4. Request for Public Hearing emails dated April 2 and April 3, 2018. through the ANPRM Docket ID to the Comments Received However, there is no evidence that the new NPRM Docket ID. ATF was proposed rule was not available for informed that the number of comments A few commenters requested a hearing pursuant to the NPRM because public comment for the 90-day displayed on Regulations.gov updated they want the opportunity to be heard comment period. On the contrary, ATF only once a day and therefore would received numerous comments from the before ATF prescribes any rule. One harmonize over the next few days as commenter stated that 18 U.S.C. 926(b) very beginning of the comment period. ongoing system maintenance occurred. ATF explained to the author of the requires ATF to hold a public hearing Ultimately, the website depicting the article that on March 29, 2018, when the when such is requested because the amount of comments received reflects comment period opened for the NPRM, statute provides that the Attorney the link for submitting comments to the all comments received since March 29, General ‘‘shall afford interested parties NPRM had been inadvertently 2018, the beginning of the comment opportunity for hearing, before connected to the Regulations.gov Docket period. prescribing . . . rules and regulations ID number 2018–0001–0001, which had To answer the author’s inquiry as to [under 18 U.S.C. ch. 44].’’ been used by the Regulations.gov why his comments submitted were not Department Response website for the ANPRM comment visible on Regulations.gov, ATF The Department is not persuaded that period, December 26, 2017, through reminded the online author that Part a public hearing is necessary or January 25, 2018. On March 29, 2018, VII.C of the NPRM, which described the the same day the proposed rule was appropriate in connection with this three methods for submitting public rulemaking. The Department believes published in the Federal Register, comments, informed the public that individuals were able to and did submit that a comprehensive public record has comments submitted through already been established through the comments for the NPRM even though it Regulations.gov ‘‘will be posted within was linked to the Docket ID used for the comment process, which generated over a few days of being submitted. However, ANPRM. Realizing that the link for the 186,000 comments, some of which if large volumes of comments are being NPRM should not have been listed included substantial discussions of the under the ANPRM Docket ID, a new processed simultaneously, . . . rulemaking. The Department does not Docket ID number (2018–0002–0001) comment[s] may not be viewable for up believe that a public hearing would was created for the NPRM. These Docket to several weeks.’’ Since the beginning meaningfully add data or information ID numbers are created by the third- of the comment period, ATF received a germane to the examination of the party managers of Regulations.gov for high volume of comments and, as merits of the proposal or would provide purposes of the website. ATF uses its forewarned, there was a delay between substantive factual information that own docket number, 2017R–22, as seen the time comments were submitted and would assist the Department in in the text of the ANPRM and NPRM. when they became viewable on the improving the rule in material ways. Once the third-party managers of website, assuming the comment met the Furthermore, the Department believes Regulations.gov created a new Docket ID posting guidelines stated in Part VII.A of that it has made changes to this rule and number for the NPRM with a ‘‘Comment the NPRM. By April 3, 2018, two of the included clarifications in the preamble Now’’ feature, they eliminated the online author’s comments were visible that address the important issues raised ability to submit NPRM comments on Regulations.gov, and the agency by parties who requested a hearing. In under the old ANPRM Docket ID. The provided him with direct weblinks to light of all the circumstances, a public Department acknowledges that there his comments. hearing is unnecessary. was some confusion because there was The Supreme Court has held that it is a brief period on March 29, 2018, during Accordingly, the Department not necessary for an agency to hold a which the ANPRM link (2018–0001– disagrees that the agency failed to public hearing on a rulemaking simply 0001) was prominently situated on the provide the statutorily mandated 90-day because it receives a request for one. In homepage of the Regulations.gov public comment period. Moreover, the both United States v. Allegheny-Ludlum website even though that link was no Department notes that the Federal Steel Corp., 406 U.S. 742 (1972), and longer able to accept comments for the eRulemaking Portal is one of the three United States v. Florida East Coast NPRM. Despite the brief prominence of methods available for the public to Railway, 410 U.S. 224 (1973), the Court the old ANPRM Docket ID on the submit comments during the 90-day established the rule that it is necessary Regulations.gov website, the public had comment period. Therefore, the public to examine the particular statute the ability to submit comments through also had the ability to submit comments involved when determining whether the Federal eRulemaking Portal for the via mail or facsimile during the entire notice-and-comment procedures under NPRM at all times, as a simple search 90-day period. 5 U.S.C. 553 are available or, for ‘‘bump stock’’ in the main search bar alternatively, whether there is a right to on Regulations.gov during this time The Department believes the a formal hearing. In general, unless a would have displayed the link for the numerous examples provided by the statute specifically provides for rules to new NPRM Docket ID, which was active commenter of cases in which Federal be made on the record after a hearing, and accepting comments. Moreover, agencies extended comment periods are the Federal courts have held that the some individuals confused about how to inapplicable to this rulemaking. The informal rulemaking procedure is comment on Regulations.gov called specific scenarios the commenter listed applicable. Thus, even statutory ATF’s Office of Regulatory Affairs, were apparently all the result of the language such as ‘‘due notice and which was able to assist them. lapse in government funding that opportunity for a public hearing,’’ and ATF also responded to the author’s occurred in October 2013. At that time, ‘‘opportunity for hearing,’’ have been inquiry regarding the discrepancy in the agencies were largely unstaffed, and held to mandate only informal numbers showing the amount of insufficient personnel were available to procedures under 5 U.S.C. 553. See 3 comments received. Over the weekend process the comments. This rulemaking Administrative Law 16.03 (2018). of March 31, 2018, the third-party has not involved similar difficulties. One Federal court specifically managers of Regulations.gov transferred addressed the language in 18 U.S.C.

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66543

926(b), on which one commenter relied, stock-type devices must destroy or estimated costs of this final rule can be and rejected the commenter’s position. abandon the devices. found in the rule’s economic analysis In that case, the plaintiff contended In response to comments received and below. ‘‘that all of the regulations must be discussed in Part IV, the Department The Attorney General has determined invalidated because the Secretary failed added employees of manufacturers and this rule is a ‘‘significant regulatory to follow the procedures mandated in one additional manufacturer to the action’’ that is economically significant FOPA by refusing to afford interested populations potentially affected by this under section 3(f)(1) of Executive Order parties an opportunity for an oral rule, and incorporated sales tax of 12866 because, as discussed, the rule hearing.’’ However, the court held that $19.00 per bump-stock-type device as will have an annual effect on the the agency provided an ‘‘opportunity’’ part of the economic analysis. Also, the economy of $100 million or more. for a hearing even though it decided Department considered additional Accordingly, the rule has been reviewed against an oral hearing. The court wrote: alternatives and inserted an OMB by the Office of Management and Circular A–4 Accounting Statement for FOPA contains no provision guaranteeing Budget. This rule is a significant interested parties the right to an oral clarity. regulatory action that clarifies the hearing.... It is well-settled that the VI. Statutory and Executive Order meaning of the statutory definition of requirement of a hearing does not necessitate Review machinegun and reflects the public that the hearing be oral. Here, the Secretary, safety goals of the NFA and GCA. pursuant to regulation, reserved for himself A. Executive Orders 12866, 13563, and Further, this rule is a regulatory action the right to determine whether an oral 13771 subject to Executive Order 13771. See hearing should be held. He ultimately Executive Orders 13563 (Improving OMB, Guidance Implementing determined that an oral hearing was unwarranted, but did provide interested Regulation and Regulatory Review) and Executive Order 13771, Titled parties with the opportunity to submit 12866 (Regulatory Planning and ‘‘Reducing Regulation and Controlling written comments. This is all the hearing Review) direct agencies to assess the Regulatory Costs’’ (Apr. 5, 2017). requirement in § 926(b) demands. costs and benefits of available regulatory This final rule is intended to interpret alternatives and, if regulation is the definition of ‘‘machinegun’’ within Nat’l Rifle Ass’n v. Brady, 914 F.2d 475, necessary, to select regulatory the NFA and GCA such that it includes 485 (4th Cir. 1990) (citations omitted). approaches that maximize net benefits a bump-stock-type device, i.e., a device Here, the Department has made the (including potential economic, that allows a semiautomatic firearm to same determination that an oral hearing environmental, public health, and safety shoot more than one shot with a single is unnecessary. effects, distributive impacts, and pull of the trigger by harnessing the V. Final Rule equity). Executive Order 13563 recoil energy of the semiautomatic emphasizes the importance of firearm to which it is affixed so that the This final rule adopts, with minor quantifying both costs and benefits, trigger resets and continues firing changes, the proposed amendments to reducing costs, harmonizing rules, and without additional physical the definition of ‘‘machine gun’’ in 27 promoting flexibility. Executive Order manipulation of the trigger by the CFR 447.11, 478.11, and 479.11, which 13771 (Reducing Regulation and shooter. include clarification of the meaning of Controlling Regulatory Costs) directs ‘‘automatically’’ and ‘‘single function of agencies to reduce regulation and Accounting Statement the trigger’’ and clarification that bump- control regulatory costs. This final rule Table 1 provides the annualized and stock-type devices are machineguns. is expected to have an impact of over unquantified costs and benefits to this The Department accordingly determined $100 million in the first year of this final rule. These costs are annualized that persons in possession of bump- regulatory action. Details on the and discounted at 3% and 7%. TABLE 1—OMB CIRCULAR A–4 ACCOUNTING STATEMENT

Category Primary estimate Minimum estimate Midrange estimate Source

Benefits

Annualized monetized benefits (discount rate in parentheses) ...... (7%) ...... N/A ...... (7%) ...... N/A ...... (7%) ...... N/A ...... Final Rule. (3%) ...... N/A ...... (3%) ...... N/A ...... (3%) ...... N/A.

Unquantified Benefits ...... • Limit access to bump-stock-type devices Final Rule. • Prevents usage of bump-stock-type devices for criminal purposes. • Intended to reduce casualties in mass shootings. • Intended to help protect first responders when responding to shooting incidents.

Costs

Annualized monetized costs (discount rate in parentheses) ...... (7%) ...... $35.0 mil ...... (7%) ...... $28.9 mil ...... (7%) ...... $32.0 mil ...... Final Rule. (3%) ...... $32.8 mil ...... (3%) ...... $27.6 mil ...... (3%) ...... $31.2 mil ...... Final Rule.

Qualitative costs (unquantified) ...... • Potential loss of wages for employees of bump-stock-type device manufacturers Final Rule. • Costs of advertising to inform owners of the need to dispose of their bump-stock-type devices • Lost consumer surplus to users of bump-stock-type devices.

Transfers

Annualized monetized transfers: ‘‘on budget’’ ...... 0 0 0 Final Rule.

From whom to whom? ...... N/A N/A N/A None.

Annualized monetized transfers: ‘‘off-budget’’ ...... 0 0 0 Final Rule.

From whom to whom? ...... N/A N/A N/A None.

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66544 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

TABLE 1—OMB CIRCULAR A–4 ACCOUNTING STATEMENT—Continued

Category Primary estimate Minimum estimate Midrange estimate Source

Miscellaneous analysis/category Effects Source citation

Effects on State, local, and/or tribal governments ...... None. None.

Effects on small businesses ...... Significant effect on small businesses. Prepared FRFA. RFA.

Effects on wages ...... None. None.

Effects on growth ...... None. None.

Need for Federal Regulatory Action failure of the market to compensate for criminal purposes. This poses a public negative externalities caused by safety issue that the Department is Agencies take regulatory action for commercial activity. A negative trying to address. various reasons. One of the reasons is to externality can be the byproduct of a Summary of Affected Population, Costs, carry out Congress’s policy decisions, as transaction between two parties that is and Benefits expressed in statutes. Here, this not accounted for in the transaction. rulemaking aims to apply Congress’s This final rule is addressing a negative Table 2 provides a summary of the policy decision to prohibit externality. The negative externality of affected population and anticipated machineguns. Another reason the commercial sale of bump-stock-type costs and benefits to promulgating this underpinning regulatory action is the devices is that they could be used for rule.

TABLE 2—SUMMARY OF AFFECTED POPULATION, COSTS, AND BENEFITS

Category Affected populations, costs, and benefits

Applicability ...... • Manufacturers of bump-stock-type devices. • Employees of bump-stock-type device manufacturers. • Retail sellers of bump-stock-type devices. • Gun owners who own bump-stock-type devices or would have purchased them in the future. Affected Population ...... • 1 manufacturer of bump-stock-type devices. • 2,281 retailers of bump-stock-type devices. • Owners and future consumers of bump-stock-type devices. Total Quantified Costs to Industry, • $245.5 million present value over 10 years. Public, and Government (7% Dis- • $35.0 million annualized. count Rate). Unquantified Costs ...... • Potential loss of wages for employees of bump-stock-type device manufacturers. • Costs of advertising to inform owners of the need to dispose of their bump-stock-type devices. • Lost consumer surplus to users of bump-stock-type devices. Unquantified Benefits ...... • Limits access to bump-stock-type devices. • Prevents usage of bump-stock-type devices for criminal purposes. • Intended to reduce casualties in mass shootings. • Intended to help protect first responders when responding to shooting incidents.

Changes from the NPRM to FR Table 3 presents a summary of the changes to economic effects from NPRM to final rule.

TABLE 3—CHANGES IN BUMP-STOCK-TYPE DEVICES FROM NPRM TO THE FINAL RULE

Variables NPRM Final Rule Difference Description of Changes

Applicability ...... N/A ...... Employees of bump-stock- Adding employees of Per public comment, ATF type device manufactur- bump-stock-type device included employees of ers. manufacturers. manufacturers quali- tatively. 2 manufacturers ...... 1 manufacturer ...... Subtracted 1 ...... Based on publicly avail- able information. Cost of Bump-Stock-Type $301 ...... $320 ...... $19 ...... Per public comment, ATF Devices. included State and local taxes. Destruction ...... $5.4 million ...... $9.4 million ...... $3.9 million ...... Change in policy. Future Sales ...... $213.0 million ...... $198.9 million ...... $14.1 million ...... Change from 2 large retail- ers selling bump-stock- type devices to 1. Government Cost ...... $0 ...... $1.3 million ...... $1.3 million ...... Change in policy.

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66545

TABLE 3—CHANGES IN BUMP-STOCK-TYPE DEVICES FROM NPRM TO THE FINAL RULE—Continued

Variables NPRM Final Rule Difference Description of Changes

Alternatives

Amnesty or This alternative was rejected because since the passage of 18 U.S.C. 922(o), am- Per public comment. ‘‘grandfathering’’. nesty registration of machineguns is not legally permissible

Licensing and background This alternative was rejected because only Congress can add a new class of firearm Per public comment. checks. and impose licensing or acquisition requirements on them.

Remuneration ...... This alternative was rejected because only Congress has the authority to offer mone- Per public comment. tary compensation.

Medical exemption ...... This alternative was rejected because neither the NFA nor the GCA provides for med- Per public comment. ical exemptions to acquire a firearm. Only Congress can add medical exemptions

Future production and This alternative was rejected because ATF does not have the authority to restrict only Per public comment. sales. the future manufacture or sale of bump-stock-type devices

Quota ...... This alternative was rejected because ATF lacks authority to implement it, as all de- Per public comment. vices determined to be machineguns are prohibited across the board

Instituting a tax ...... This alternative was rejected because excise tax is regulated by statute and only Per public comment. Congress can determine the amount of excise tax on an item

Improved security at mass This alternative was rejected because improved security must be paired with reason- Per public comment. events. able regulations to increase public safety and reduce violent crime

Congressional legislation .. This alternative was rejected because ATF has been delegated authority to issue Per public comment. rules to implement the NFA and GCA. This action will not prevent Congress from taking action on bump-stock-type devices

Leave to States to regulate This alternative was rejected because ATF prioritizes public safety and preventing Per public comment. crime. This action will not prevent States from taking action on bump-stock-type de- vices

Improved law enforcement This alternative was rejected because training and equipment must be paired with Per public comment. reasonable regulatory efforts to increase public safety and reduce violent crime

Affected Population Because many bump-stock-type For the estimate of the number of devices—including those ATF retailers, ATF filtered all FFLs for a list The populations affected by this rule addressed in classification letters of potential sellers. While there are are manufacturers of bump-stock-type between 2008 and 2017—have not been approximately 80,000 FFLs currently devices, employees of bump-stock-type subject to regulation under the GCA, licensed, only certain types of FFLs sell device manufacturers, retailers who sell ATF does not keep track of firearms to the public. ATF first them either in brick-and-mortar stores manufacturers or retailers of bump- removed FFLs that do not sell firearms or online, and individuals who have stock-type devices, nor does ATF keep to the public. Next, since not all FFLs purchased or would have wanted to track or maintain a database of sell firearm accessories, ATF needed to purchase bump-stock-type devices. The individuals who have purchased bump- estimate the number that do sell number of entities and individuals stock-type devices. Therefore, the accessories. ATF assumed that FFLs that affected are as follows: affected population of manufacturers are likely to sell bump-stock-type • 1 manufacturer and retailers is an estimate and based on devices also have websites. ATF ran a • 2,281 retailers publicly available information and, with query on the FFL database and found • An uncertain number of individuals who respect to retailers who are also Federal that of those that sell firearms to the have purchased bump-stock-type devices firearms licensees (FFLs), is also based public, 2,270 have websites. Because or would have purchased them in the on ATF’s records in the Federal sellers of firearm accessories do not future 15 Firearms Licensing System. necessarily sell firearms, ATF also • An estimated 22 employees who were Based on publicly available performed an online search and found employed by one manufacturer, based on information and comments on the an additional 11 retailers who sell 16 public comments NPRM, ATF estimates that since 2010, firearm accessories, but not firearms. as many as seven domestic bump-stock- Adding these two totals together, ATF 15 Note that many commenters assumed that each type device manufacturers have been in estimates that there are 2,281 retailers of person who owns a bump-stock-type device owns bump-stock-type devices. one device. This overestimates the number of the marketplace, but due to patent owners because owners of such devices may own infringement litigation, only three Because there are no records of more than one, as evidenced by the Las Vegas remained in the market. However, it individuals who have purchased firearm shooter, who allegedly owned at least 12. appears two have ceased manufacturing accessories, ATF does not have an 16 Regulations.gov, Docket ID: ATF–2018–0002– 16668, available at https://www.regulations.gov/ bump-stock-type devices since estimated number of individuals who document?D=ATF-2018-0002-16668 (last visited publication of the NPRM due their will be affected by this final rule. Nov. 16, 2018). inability to obtain liability insurance. Although ATF lacks data on the number

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66546 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

of individuals who have purchased with mobility issues in firing quickly, has sold 4,400, a midrange retailer has bump-stock-type devices, ATF has some self-defense, killing invasive pig sold 60, and a small retailer has sold information from one manufacturer and species, and target practice (although, as 8.20 For the purposes of this analysis, four retailers on the volume of sales of some commenters observed, bump- ATF assumes the number of retailers by such devices. Based on these reported stock-type devices impede firing size are as follows: amounts, ATF estimates that the accuracy). After implementation of this • 4 large * 4,400 annual sales number of bump-stock-type devices that final rule, bump-stock-type devices that • 755 midrange * 60 annual sales were purchased during the 8-year meet the definition of ‘‘machinegun’’ • 1,511 small * 8 annual sales period beginning in 2010 ranges from under the NFA and GCA cannot be The number of large retailers is a 35,000 per year as a low estimate to lawfully possessed because the known number. As stated in the 75,000 per year as the high and primary pertinent provision of the GCA, 18 Affected Population section above, estimate. ATF used a public U.S.C. 922(o), prohibits persons from based on ATF’s internal database and commenter’s estimate of 400,000 total possessing a machinegun unless it was online research, the remaining number devices in circulation as a third lawfully possessed before the effective of retailers is 2,270. For the purposes of estimate. For further information on the date of section 922(o). Bump-stock-type this RA, ATF estimated that one-third of methodology of these estimates, please devices currently possessed by the remaining retailer population are review the analysis regarding ‘‘Costs’’ individuals will have to be destroyed or midrange retailers, and the remaining below. abandoned prior to the effective date of 1,511 are small retailers. Using these this regulation. estimated numbers of retailers and Costs The lost value from no longer being annual sales by size of retailer, ATF There are four primary sources of able to use or purchase bump-stock-type estimated annual sales of about 75,000 costs from this rule. First, for owners of devices will depend on the volume of bump-stock-type devices, there will be a [(4 * 4,400) + (755 * 60) + (1,511 * 8)]. sales in the market and the value that ATF next developed an estimate of lost value from no longer being able to consumers place on the devices. ATF the number of bump-stock-type devices possess or use the devices. Second, has limited information about the in the United States based on there will be a lost value from future market for bump-stock-type devices. information about the number of bump- sales of the devices. Third, there is a ATF first developed an estimate of the stock-type devices manufactured. Based disposal cost associated with the need number of bump-stock-type devices in on publicly available information, ATF to destroy the devices or abandon them the marketplace based on information estimates that approximately 35,000 at the nearest ATF office. Finally, there on retail sales provided in response to bump-stock-type devices were sold in will be a potential loss of wages from the ANPRM. One ANPRM commenter 2010.21 Only in 2012 did other employees losing jobs from loss of estimated that more than 400,000 bump- manufacturers enter the marketplace. manufacturing; however, the extent to stock-type devices may have been sold. For the purposes of this RA, ATF which they will be unable to find Based on publicly available information, assumes that in the first two years of replacement jobs is speculative. ATF estimates that in the first two years production, the one manufacturer Manufacturing and Startup Cost that bump-stock-type devices were in produced the same 35,000 in years 2010 the market, approximately 35,000 were Commenters suggested that ATF and 2011. ATF has two sets of sold per year.17 However, after 2011, production estimates. Because no overlooked the capital expenses to start other manufacturers entered the market up a company to manufacture bump- information is otherwise known about and there is no available information the production of bump-stock-type stock-type devices. The Department regarding the total number of bump- devices, ATF assumes that the low considered the capital expenses for stock-type devices manufactured. ATF estimate of annual bump-stock-type manufacturers. However, in light of the is using publicly available information device production is a constant 35,000, Las Vegas shooting and potential on manufacturing and combining it with based on the one data point. As stated crowding of additional manufacturers, the information on retail sales to earlier, a public commenter provided an the Department determined that the estimate a range of the number of bump- estimate of 400,000 bump-stock-type potential for manufacturers to continue stock-type devices in the marketplace. devices currently in circulation. To business in a potentially saturated One retailer stated that it sold an account for how these were purchased market was doubtful. Furthermore, the average of 4,000 to 5,000 bump-stock- over the last 8 years, ATF also assumed Department has already calculated the type devices per year.18 One commenter the same 35,000 production in the first foregone return on investment when the indicated that one retailer sold 3,800 2 years, but spread out the remaining Department considered foregone bump-stock-type devices annually, one 330,000 over the remaining 6 years, or production, so accounting for capital sold 60 per year, and one sold about 55,000 per year. However, there expenses would be double counting of approximately 5–10 per year.19 For the were public comments that stated how expenditures. Therefore, the viability purposes of this regulatory analysis many bump-stock-type devices were that these businesses will be successful (RA), ATF assumes that a large retailer sold by that retailer. Using the retail is speculative and the capital expenses sales information, ATF developed a that they incurred are a sunk cost for 17 Donnie A. Lucas, Firing Up Some Simple third, higher estimate reflecting that those who put in the expense. Solutions, Albany News (Dec. 22, 2011), http:// www.thealbanynews.net/archives/2443. when the other manufacturers entered Cost to the Public for Loss of Property 18 Based on an internal survey of large retailers. the market, the number of bump-stock- One reason individuals purchase 19 Regulations.gov, Docket ID: ATF–2018–0001– type devices sold on the market 27509, https://www.regulations.gov/ annually could have been 75,000. bump-stock-type devices is so that they document?D=ATF-2018-0001-27509 (last visited on can simulate automatic firing on a The high estimate is ATF’s primary Nov. 16, 2018); Regulations.gov, Docket ID: ATF– estimate because ATF knows that there semiautomatic firearm. Commenters 2018–0001–0433, https://www.regulations.gov/ noted a variety of purposes for which document?D=ATF-2018-0001-0433 (last visited on Nov. 16, 2018); Regulations.gov, Docket ID: ATF– 20 For a large retailer the average sales were 4,400 bump-stock-type devices have been 2018–0001–0128, https://www.regulations.gov/ = (3,800 + 5,000)/2. For a small retailer, the average advertised and used, including for document?D=ATF-2018-0001-0128 (last visited on sales were 8 = (5 + 10)/2. recreation and fun, assisting persons Nov. 16, 2018). 21 Lucas, supra note 17.

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66547

was an increase in production starting includes information provided by entry of other manufacturers all in 2012. In 2012, there were other retailers as a more comprehensive occurred in 2012. Table 4 provides the manufacturers who entered the market, outlook on the overall production breakdown of production for the low and the first manufacturer increased numbers. For the purposes of this estimate, public comment estimate, and production at some point thereafter. analysis, ATF assumes that both the primary estimate. Furthermore, the primary estimate increase in production and the market

TABLE 4—NUMBER OF BUMP-STOCK-TYPE DEVICES PRODUCED, BASED ON MANUFACTURER AND RETAIL SALES

Public Year Low estimate comment Primary estimate estimate

2010 ...... 35,000 35,000 35,000 2011 ...... 35,000 35,000 35,000 2012 ...... 35,000 55,000 75,000 2013 ...... 35,000 55,000 75,000 2014 ...... 35,000 55,000 75,000 2015 ...... 35,000 55,000 75,000 2016 ...... 35,000 55,000 75,000 2017 ...... 35,000 55,000 75,000

Total ...... 280,000 400,000 520,000

In other words, the number of bump- some consumers may have been willing first two years they were sold. In 2012, stock-type devices held by the public to pay more than the retail price for a at least one other manufacturer entered could range from about 280,000 to about bump-stock-type device, and for these the market and started selling its 520,000. individuals the devices would have a devices at the rate of $99.99, making the ATF does not know the production higher valuation than the retail price. overall prices for these devices lower.23 cost of bump-stock-type devices, but for Both of these effects are difficult to For the purposes of this RA, ATF the purposes of this RA, ATF uses the estimate, and here ATF assumes that the assumes that the average sale price, retail sales amounts as a proxy for the retail sales price is a reasonable proxy including State and local taxes, for total value of these devices. For devices for the value of the devices. bump-stock-type devices from 2012 to that have already been sold, there are The primary manufacturer of bump- 2017 was $213.00. Based on these costs, two countervailing effects that affect the stock-type devices sells them at a price value of the devices. There may have of $179.95 to $425.95.22 For the multiplied by the number of bump- been some depreciation of the devices purposes of this RA, ATF estimates that stock-type devices in the market, Table since they were originally purchased, the average sale price, including State 5 provides the sales value that the resulting in a value somewhat reduced and local taxes, for these bump-stock- public has spent on these devices over from the retail price. On the other hand, type devices was $320.00 during the the course of the last eight years.

TABLE 5—AMOUNT SPENT ON BUMP-STOCK-TYPE DEVICES [Undiscounted]

Midrange esti- Year Low estimate mate Primary

2011 ...... $11,214,896 $11,214,896 $11,214,896 2012 ...... 11,214,896 11,214,896 11,214,896 2013 ...... 7,470,511 11,739,374 16,008,237 2014 ...... 7,470,511 11,739,374 16,008,237 2015 ...... 7,470,511 11,739,374 16,008,237 2016 ...... 7,470,511 11,739,374 16,008,237 2017 ...... 7,470,511 11,739,374 16,008,237

Total ...... 59,782,345 81,126,661 102,470,977

ATF estimates that the total, stock-type devices remained constant 3% and 7% in Table 6 to account for the undiscounted amount spent on bump- over the eight years of sales, these present value of these purchases. stock-type devices was $102.5 million. purchases occurred over time; therefore, While the retail prices of these bump- ATF presents the discounted value at

22 Slide Fire AR–15 Bump Fire Stocks (archived 23 Bump Fire Systems (archived page on Feb. 21, page on Jan. 28, 2017), https://web.archive.org/web/ 2015), https://web.archive.org/web/20150221 20170128085532/http://www.slidefire.com/ 050223/http://bumpfiresystems.com/ (last visited products/ar-platform (last visited Nov. 28, 2018). Nov. 28, 2018).

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66548 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

TABLE 6—THE AMOUNT SPENT PURCHASING BUMP-STOCK-TYPE DEVICES, DISCOUNTED AT 3% AND 7%

Year Undiscounted 3% 7%

2011 ...... $11,214,896 $13,001,138 $15,729,472 2012 ...... 11,214,896 12,622,464 14,700,441 2013 ...... 16,008,237 17,492,633 19,610,779 2014 ...... 16,008,237 16,983,139 18,327,831 2015 ...... 16,008,237 16,488,484 17,128,814 2016 ...... 16,008,237 16,008,237 16,008,237 2017 ...... 16,008,237 15,541,978 14,960,969

Total ...... 102,470,977 108,138,073 116,466,542 Annualized Cost ...... 15,404,959 19,504,391

Because these purchases occurred in In order to do this, ATF needed to Based on previously mentioned the past, ATF’s discount years start at -5 predict the number of devices that comments from large retailers, ATF and increase to 0 to account for the would have been sold in the future in expects that, even in the absence of this Executive Order 13771 standard that the absence of a rule. Such a prediction rule, some retailers would not sell costs be presented in 2016 dollars. With should take account of recent expected bump-stock-type devices in the future. these assumptions, ATF estimates that changes in the demand for and supply In order to estimate the expected future the annualized, discounted amount of bump-stock-type devices. For reduction in demand for bump-stock- spent on bump-stock-type devices was example, based on a survey, three of the type devices as a result of the Las Vegas $15.4 million and $19.5 million at 3% four known, large former retailers of shooting, ATF assumes that the and 7%, respectively. bump-stock-type devices no longer sell reduction of sales by large retailers that Based on the same discounting bump-stock-type devices as a result of has already occurred would be a formula, ATF estimates that the total the Las Vegas shooting, nor do they reasonable estimate of the future intend to sell them in the future. undiscounted cost for the low estimate reduction of sales overall that would is $59.7 million, and the total Moreover, while ATF has estimated the occur in the absence of this rule. In the discounted values are $64.1 million and number of bump-stock-type devices NPRM, ATF estimated that two of the $70.6 million at 3% and 7%, manufactured since 2010, ATF is respectively. The annualized values for without sufficient information to four large retailers would remain in the the low estimates of the total number of estimate the number of individuals who market to sell bump-stock-type devices. bump-stock-type devices sold are $9.1 were interested in acquiring bump- 83 FR at 13452. Since then, one of these million and $11.8 million at 3% and stock-type devices prior to the Las Vegas remaining retailers merged with one of 7%, respectively. For the 400,000-unit shooting but would no longer want the large retailers that opted not to sell estimate provided by the public them due to the shooting. bump-stock-type devices, resulting in commenter, the total undiscounted Another recent change affecting only one large retailer remaining in the amount is $81.1 million, and the total individuals’ future purchases of bump- market. For the purposes of this discounted values would be $86.1 stock-type devices is that certain States regulatory analysis, it is estimated that million and $93.5 million at 3% and have already banned such devices. the one large retailer that would 7%, respectively. The annualized values These States are California, Connecticut, otherwise intend to keep selling bump- for the 400,000-unit sales estimate are Delaware, Florida, Hawaii, Maryland, stock-type devices sells 4,400 of such $12.3 million and $15.7 million at 3% Massachusetts, New Jersey, Rhode devices annually. Removing the effects and 7%, respectively. Island, Vermont, and Washington.24 The of these three large retailers from the effect of States’ bans on individuals’ Forgone Future Production and Sales future market reduces ATF’s primary future purchases of bump-stock-type estimate of 74,988 in past annual ATF has estimated the lost production devices should not be attributed to this production to an estimate of 62,084 (= and lost sales that will occur in the 10 final rule since these reductions in 75,284¥13,200) in annual sales that years after the implementation of this purchases will happen with or without would have occurred in the future in the final rule. These estimates take into the rule. However, ATF was unable to absence of this rule. Table 7 provides account lost revenue from quantify the impact of States’ bans and the estimated breakdown of lost manufacturers and retailers. ATF does thus was unable to account for the production and sales forgone due to this not parse out manufacturing and retail future effects of these bans in the rule. sales, in order to limit double counting. estimate of the effects of the final rule.

TABLE 7—FORGONE PRODUCTION AND SALES OF FUTURE BUMP-STOCK-TYPE DEVICES

Number of Year bump-stock-type Undiscounted 3% 7% devices

2018 ...... 62,084 $19,893,303 $19,313,886.10 $18,591,871.67 2019 ...... 62,084 19,893,303 18,751,345.73 17,375,581.00 2020 ...... 62,084 19,893,303 18,205,190.03 16,238,860.74

24 Cal. Penal Code sections 16930, 32900 (2018); (2018); Md. Code. Ann., Crim. Law section 4–305.1 Vt. Stat. Ann. tit. 13, section 4022 (2018); 2018 2018 Conn. Acts 18–29 (Reg. Sess.); Del. Code Ann. (2018); Mass. Gen. Laws ch. 140, section 121, 131 Wash. Sess. Laws ch. 7, pp. 196–220. tit. 11, section 1444(a)(6) (2018); Fla. Stat. section (2018); N.J. Stat. Ann. sections 2C:39–3(l), 2C:39– 790.222 (2018); Haw. Rev. Stat. section 134–8.5 9(j); 11 R.I. Gen. Laws section 11–47–8(d) (2018);

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66549

TABLE 7—FORGONE PRODUCTION AND SALES OF FUTURE BUMP-STOCK-TYPE DEVICES—Continued

Number of Year bump-stock-type Undiscounted 3% 7% devices

2021 ...... 62,084 19,893,303 17,674,941.77 15,176,505.37 2022 ...... 62,084 19,893,303 17,160,137.64 14,183,649.88 2023 ...... 62,084 19,893,303 16,660,327.81 13,255,747.55 2024 ...... 62,084 19,893,303 16,175,075.54 12,388,549.11 2025 ...... 62,084 19,893,303 15,703,956.84 11,578,083.28 2026 ...... 62,084 19,893,303 15,246,560.04 10,820,638.58 2027 ...... 62,084 19,893,303 14,802,485.47 10,112,746.34

Total ...... 198,933,027 169,693,906.98 139,722,233.51 Annualized Cost ...... 24,173,981.19 23,398,969.82

Based on these estimates, ATF incapable of ready restoration. Since the ATF estimates that the amounts in estimates that the undiscounted value of majority of bump-stock-type devices are existing inventory for each type of forgone future sales over 10 years is made of plastic material, individuals retailer are as follows: $198.9 million, undiscounted, or $24.2 can use a hammer to break apart the • Large retailer: $35,000; million and $23.4 million, annualized devices and throw the pieces away. • midrange retailer: $4,500; and and discounted at 3% and 7%. Other destruction options that ATF has • small retailer: $74.25 historically accepted include torch Disposal cutting or sawing the device in a There were no comments on the NPRM This final rule requires the manner that removes at least 1⁄4 inch of about these assumptions or the destruction of existing bump-stock-type material for each cut and completely methodology used based on the ANPRM devices. The cost of disposal has several severs design features critical to the comments. Therefore, the analysis used components. For individuals who own functionality of the device as a bump- to determine the cost of unsellable bump-stock-type devices, there is a cost stock-type device. inventory remains the same for this final for the time and effort to destroy the Current possessors are encouraged to rule. devices or ensure that they are undertake destruction of the devices. destroyed by another party. For However, current possessors also have The commenter assumed to be a large retailers, wholesalers, and the option to abandon bump-stock-type retailer also commented that the manufacturers, there is a cost of the time devices at the nearest ATF office. opportunity cost of time needed to and effort to destroy or ensure the Current possessors of bump-stock-type destroy existing inventory will be destruction of any devices held in devices will have until the effective date approximately $700. ATF’s subject inventory. In addition, this final rule of the rule (90 days from date of matter experts estimate that a retailer incorporates the option of abandoning publication in the Federal Register) to could use a maintenance crew to bump-stock-type devices at an ATF comply. Additional information on the destroy existing inventory. To office. Based on the response from destruction of bump-stock-type devices determine the hourly time needed to commenters, this cost is taken into will be available on www.atf.gov. destroy existing inventory, ATF used consideration under the foregone sales Based on comments received on the the $700 reported amount, divided by section. ANPRM, unsellable inventory could be the loaded wage rate of a building Individuals who have purchased worth approximately $35,000 per large cleaning worker. ATF subject matter bump-stock-type devices prior to the retailer. One commenter, assumed to be experts also suggest that existing implementation of this rule must a large retailer, stated that its gross sales packers would be used for a midrange destroy the devices themselves prior to were $140,000. Another commenter retailer and the minimum wage would the effective date of the rule or abandon assumed to be a midrange retailer had be used for a small retailer. A multiplier them at their local ATF office. Options gross sales of $18,000. No known sales of 1.43 was applied to unloaded wage for destroying the devices include were reported for a small retailer. Based rates to account for fringe benefits.26 melting, crushing, or shredding in a on the proportion of sales among the Table 9 provides the wages used for this manner that renders the device large, midrange, and small retailers, analysis.

TABLE 9—WAGE SERIES TO DESTROY EXISTING INVENTORY

Unloaded Loaded Wage series Series code wage rate wage rate Source

Individual ...... $13.60 $13.60 https://www.transportation.gov/sites/dot.gov/files/ docs/2016%20Revised%20Value %20of%20Travel%20Time%20Guidance.pdf. Minimum Wage Rate ...... Min Wage ...... 7.25 10.40 https://www.bls.gov/opub/reports/minimum-wage/ 2016/home.htm. Packers, Packagers, and 53–7064 ...... 11.74 16.84 https://www.bls.gov/oes/2016/may/oes537064.htm. Handlers. Retail Salespersons ...... 41–2031 ...... 13.07 18.75 https://www.bls.gov/oes/2016/may/oes412031.htm.

25 Midrange: $4,500 = ($18,000/$140,000) * 26 BLS Series ID CMU2010000000000D, and Salaries = $22.55) = 1.43. BLS average 2016. $35,000. Small: $74 = (8/3,800) * $35,000. CMU2010000000000P (Private Industry U.S. Bureau of Labor Statistics, https://beta.bls.gov/ Compensation = $32.35)/(Private Industry Wages dataQuery/find?fq=survey:[cm]&s=popularity:D.

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66550 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

TABLE 9—WAGE SERIES TO DESTROY EXISTING INVENTORY—Continued

Unloaded Loaded Wage series Series code wage rate wage rate Source

Building Cleaning Workers, 37–2019 ...... 14.88 21.34 https://www.bls.gov/oes/2016/may/oes372019.htm. All Other.

Based on the estimated wages and 32.8 hours, a midrange retailer 0.45 provides the per-retailer estimated reported opportunity cost of time, ATF hours, and a small retailer 0.25 hours to opportunity cost of time. estimates that it will take a large retailer destroy existing inventory. Table 10

TABLE 10—OPPORTUNITY COST OF TIME TO DESTROY EXISTING INVENTORY

Incremental Hourly Opportunity Population cost burden cost of time

Individual ...... $13.60 0.25 $3.40 Retailer (Large) ...... 21.34 32.8 699.95 Retailer (Midrange) ...... 16.84 0.45 7.58 Retailer (Small) ...... 19.51 0.25 4.88

As stated earlier, ATF estimates that • Retailer (Large): 3 retailers * $699.95 Based on the opportunity cost of time there are 520,000 bump-stock-type opportunity cost of time + ($35,000 per bump-stock-type device, and the devices already purchased by the inventory * 75%) estimated opportunity cost of time per • Retailer (Midrange): 569 retailers * $7.58 public. For the purposes of this analysis, retailer, ATF provides the cost to we estimate the following calculations opportunity cost of time + ($4,500 inventory * 75%) destroy all existing bump-stock-type to destroy bump-stock-type devices: • Retailer (Small): 1139 retailers * $4.88 devices in Table 11. • Individual: $1.3 million = (1.8 million * opportunity cost of time + ($74 inventory 75%) * 75%)

TABLE 11—COST OF EXISTING INVENTORY AND OPPORTUNITY COST OF TIME TO DESTROY EXISTING DEVICES BY INDIVIDUAL AND RETAILER SIZE

Original cost Reduced cost Net change

Individual ...... $1,768,000 $1,326,000 $442,000 Retailer (Large) ...... 142,800 80,850 61,950 Retailer (Midrange) ...... 3,421,252 1,924,687 1,496,565 Retailer (Small) ...... 116,279 66,176 50,103

Total Disposal Cost ...... 5,448,330 3,397,713 2,050,618

For those abandoning bump-stock- midrange retailers, and 139 small the cost of gas, travel time, and mileage type devices, we estimate that 130,000 retailers will abandon them at their to abandon them. individuals, 1 large retailer, 138 nearest ATF office. Table 12 provides

TABLE 12—COST OF GAS, TRAVEL TIME, AND MILEAGE

Cost item Rate Source

Gas Consumption ...... $0.545 https://www.gsa.gov/travel-resources. Hours of Weekend Travel Time ...... 1.556 https://nhts.ornl.gov/2009/pub/stt.pdf. Miles Traveled ...... 7 https://nhts.ornl.gov/2009/pub/stt.pdf.

Assuming these devices will be • Individual: 520,000 bump-stock-type TABLE 13—DISPOSAL COST TO ABAN- abandoned during leisure hours, ATF devices * 25% * $24.98 DON BUMP-STOCK-TYPE DEVICES AT • Retailer (Large): (1 retailer * $24.98 travel uses the leisure wage rate of $13.60. ATF OFFICES ATF estimates that the cost to travel to cost) + ($35,000 inventory * 25%) • ATF offices will be $24.98 per trip = Retailer (Midrange): (190 retailers *$24.98 travel cost) + ($4,500 inventory * 25%) Individual ...... $3,247,400 (13.60 leisure wage * 1.556 hours of • Retailer (Small): (379 retailers * $24.98 Retailer (Large) ...... 8,775 weekend travel time) + ($0.545 gas travel cost) + ($74 inventory * 75%) Retailer (Midrange) ...... 1,375,025 consumption * 7 miles traveled). For the Retailer (Small) ...... 1,373,974 purposes of this analysis, we estimate Table 13 provides the additional cost of the following calculations to destroy abandoning bump-stock-type devices at Total Cost to Abandon .. 6,005,174 bump-stock-type devices: ATF offices.

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66551

We treat all costs of disposal of Government Costs it will cost $1.3 million to destroy these existing devices owned by individuals devices in-house. or held in inventory by retailers or Because ATF allows bump-stock-type Overall, ATF estimates that the total manufacturers as if they occur in 2018. device owners to abandon these devices cost of this final rule would be $312.1 Therefore, the disposal costs of the rule at ATF offices, ATF incorporates the million over a 10-year period of future in 2018 would include the total government cost to dispose of these analysis. This cost includes the first- undiscounted value of existing stock of devices. ATF estimates that an agent at year cost to destroy all existing bump- bump-stock-type devices and the total a GS–13 level will dispose of the device stock-type devices, including unsellable cost of disposal from Tables 11 and 13 in 0.25 hours at a loaded wage rate of inventory and opportunity cost of time. for the total disposal cost of $9.4 $41.07 per hour.27 ATF anticipates that Table 14 provides the 10-year cost of million. this final rule.

TABLE 14—10-YEAR COST OF FINAL RULE

Year Undiscounted 3% 7%

2018 ...... 133,101,942 129,225,186 124,394,338 2019 ...... 19,893,303 18,751,346 17,375,581 2020 ...... 19,893,303 18,205,190 16,238,861 2021 ...... 19,893,303 17,674,942 15,176,505 2022 ...... 19,893,303 17,160,138 14,183,650 2023 ...... 19,893,303 16,660,328 13,255,748 2024 ...... 19,893,303 16,175,076 12,388,549 2025 ...... 19,893,303 15,703,957 11,578,083 2026 ...... 19,893,303 15,246,560 10,820,639 2027 ...... 19,893,303 14,802,485 10,112,746

Total ...... 312,141,666 279,605,207 245,524,700 Annualized Cost ...... 32,778,260 34,957,194

The total 7% discounted cost is $249.6 to regulations, there would be no cost, only Congress can add a new class of firearm million, and the annualized discounted savings, or benefits to this alternative. to the GCA and impose licensing or costs would be $32.8 million and $35.0 Alternative 2—Patronizing a shooting acquisition requirements on it. million annualized at 3% and 7% range. Individuals wishing to 3. Provide compensation for the respectively. experience shooting a ‘‘full-auto’’ destruction of the devices. This alternative firearm could go to a shooting range that was rejected because only Congress has the Cost Savings provides access to lawfully registered authority to offer monetary compensation. 4. Provide a medical exemption. This ATF did not calculate any cost ‘‘pre-1986’’ machineguns to customers, alternative was rejected because neither the savings for this final rule. where the firearm remains on the NFA nor the GCA provides for medical premises and under the control of the Benefits exemptions to acquire an otherwise shooting range. ATF does not have the prohibited firearm. Only Congress can add As reported by commenters, the information to determine which, where, medical exemptions. purpose of this rule is to amend ATF or how many gun ranges provide such 5. Prohibit only future manufacture and regulations to clarify that bump-stock- a service and is therefore not able to sales. This alternative was rejected because type devices are ‘‘machineguns’’ as quantify this alternative. ATF does not have the authority to restrict defined by the NFA and GCA. Alternative 3—Opportunity only the future manufacture or sale of bump- Additionally, a desired outcome of this alternatives. Based on public comments, stock-type devices. rule is increased public safety. While individuals wishing to replicate the 6. Provide a quota. This alternative was there has been only one known shooting effects of bump-stock-type devices rejected because ATF lacks authority to implement it, as all devices determined to be involving bump-stock-type devices, could also use rubber bands, belt loops, or otherwise train their trigger finger to machineguns are prohibited across the board. banning such devices could result in 7. Institute a tax. This alternative was reduced casualties as a consequence of fire more rapidly. To the extent that rejected because ATF lacks authority to reducing incidents of shootings individuals are capable of doing so, this establish excise taxes. involving a weapon fitted with a bump- would be their alternative to using 8. Improve security at mass events. This stock-type device. A ban also could bump-stock-type devices. alternative was rejected because improved result in less danger to first responders Public comments from the NPRM security must be paired with reasonable when responding to incidents, because suggested other alternatives: regulations to increase public safety and it prevents shooters from using devices 1. Provide amnesty or ‘‘grandfathering.’’ reduce violent crime. that allow them to shoot semiautomatic This alternative was rejected because since 9. Congressional legislation. This firearms automatically. the passage of 18 U.S.C. 922(o), amnesty alternative was rejected because issuance of registration of machineguns is not legally this rule will not prevent Congress from Alternatives permissible; all devices determined to be taking action on bump-stock-type devices. machineguns are prohibited except as 10. Leave the issue to the States. This Alternative 1—No change alternative. provided by exceptions established by alternative was rejected because ATF is This alternative would leave the statute. responsible for implementing the NFA and regulations in place as they currently 2. Provide licensing and background GCA, Federal laws designed to maintain stand. Since there would be no changes checks. This alternative was rejected because public safety. Issuance of this rule will not

27 Office of Personnel Management, Salary Table oversight/pay-leave/salaries-wages/salary-tables/ 2018–GS, https://www.opm.gov/policy-data- pdf/2018/GS_h.pdf.

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66552 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

prevent States from taking action on bump- regulatory flexibility analysis as the failure of the market to compensate stock-type devices. described in the RFA. for negative externalities caused by 11. Improved law enforcement capabilities. Under the RFA (5 U.S.C. 604(a)), the commercial activity. A negative This alternative was rejected because while final regulatory flexibility analysis must externality can be the byproduct of a training and equipment may assist law contain: transaction between two parties that is enforcement efforts, they are not a substitute for the Department’s exercise of its public • A statement of the need for, and not accounted for in the transaction. safety responsibility of interpreting the NFA objectives of, the rule; This final rule is addressing a negative and GCA appropriately. • A statement of the significant issues externality. The negative externality of raised by the public comments in response to the commercial sale of bump-stock-type B. Executive Order 13132 the initial regulatory flexibility analysis, a devices is that they could be used for This regulation will not have substantial statement of the assessment of the agency of criminal purposes. This poses a public direct effects on the States, the relationship such issues, and a statement of any changes safety issue, which the Department is made in the proposed rule as a result of such between the Federal Government and the trying to address. States, or the distribution of power and comments; responsibilities among the various levels of • The response of the agency to any A Statement of the Significant Issues government. Therefore, in accordance with comments filed by the Chief Counsel for Raised by the Public Comments in section 6 of Executive Order 13132 Advocacy of the Small Business Response to the Initial Regulatory (Federalism), the Attorney General has Administration in response to the proposed rule, and a detailed statement of any change Flexibility Analysis, a Statement of the determined that this regulation does not have Assessment of the Agency of Such sufficient federalism implications to warrant made to the proposed rule in the final rule as a result of the comments; Issues, and a Statement of Any Changes the preparation of a federalism summary • impact statement. A description of and an estimate of the Made in the Proposed Rule as a Result number of small entities to which the rule of Such Comments C. Executive Order 12988 will apply or an explanation of why no such estimate is available; Several commenters suggested that This regulation meets the applicable • A description of the projected reporting, this rule will devastate companies that standards set forth in sections 3(a) and recordkeeping, and other compliance manufacture bump-stock-type devices 3(b)(2) of Executive Order 12988 (Civil requirements of the rule, including an and the local communities that they Justice Reform). estimate of the classes of small entities that employ. The Department concurs that will be subject to the requirement and the this rule will prevent manufacturers of D. Regulatory Flexibility Act (RFA) type of professional skills necessary for bump-stock-type devices from preparation of the report or record; and Summary of Findings • producing and selling them. Based on A description of the steps the agency has publicly available information, the ATF performed a Final Regulatory taken to minimize the significant economic Department estimates that there is only Flexibility Analysis of the impacts on impact on small entities consistent with the one manufacturer actively producing small businesses and other entities from stated objectives of applicable statutes, and selling such devices. For the the final rule. Based on the information including a statement of the factual, policy, and legal reasons for selecting the alternative purposes of this rule, it is considered a from this analysis, ATF found: adopted in the final rule and why each one small business. Due to the requirements • It is estimated that the remaining of the other significant alternatives to the rule of the NFA, there are no alternatives manufacturer will go out of business; considered by the agency that affect the • that are scalable by business size for this There are 2,281 retailers, of which most impact on small entities was rejected. rule. are estimated to be small; The RFA covers a wide range of small Some commenters suggested that the • There are no relevant government entities. entities. The term ‘‘small entities’’ RFA requires agencies to consider the comprises small businesses, not-for- innovative impacts that small Final Regulatory Flexibility Analysis profit organizations that are businesses have on the firearms market. independently owned and operated and ATF interprets the RFA’s usage of The Regulatory Flexibility Act (RFA) are not dominant in their fields, and ‘‘innovation’’ in terms of regulatory establishes ‘‘as a principle of regulatory governmental jurisdictions with approaches that the agency could use to issuance that agencies shall endeavor, populations of less than 50,000. 5 U.S.C. allow for small businesses to compete consistent with the objectives of the rule 601(3)–(6). ATF determined that the against non-small businesses. As there and of applicable statutes, to fit rule affects a variety of large and small are no non-small businesses that regulatory and informational businesses (see the section below titled manufacture bump-stock-type devices, requirements to the scale of the ‘‘A description of and an estimate of the ATF was unable to determine any businesses, organizations, and number of small entities to which the regulatory approaches that would allow governmental jurisdictions subject to rule will apply or an explanation of why small manufacturers to compete with regulation. To achieve this principle, no such estimate is available’’). Based non-small businesses with respect to agencies are required to solicit and on the requirements above, ATF manufacturing bump-stock-type consider flexible regulatory proposals prepared the following regulatory devices. and to explain the rationale for their flexibility analysis assessing the impact The Response of the Agency to Any actions to assure that such proposals are on small entities from the rule. given serious consideration.’’ Pub. L. Comments Filed by the Chief Counsel 96–354, section 2(b), 94 Stat. 1164 A Statement of the Need for, and for Advocacy of the Small Business (1980). Objectives of, the Rule Administration in Response to the Under the RFA, the agency is required Agencies take regulatory action for Proposed Rule, and a Detailed to consider if this rule will have a various reasons. One of the reasons is to Statement of Any Change Made to the significant economic impact on a carry out Congress’s policy decisions, as Proposed Rule in the Final Rule as a substantial number of small entities. expressed in statutes. Here, this Result of the Comments Agencies must perform a review to rulemaking aims to apply Congress’s There were no comments filed by the determine whether a rule will have such policy decision to prohibit Chief Counsel for Advocacy of the Small an impact. If the agency determines that machineguns. Another reason Business Administration in response to it will, the agency must prepare a underpinning this regulatory action is the proposed rule. Therefore, no

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations 66553

changes were made to the proposed rule the statutory term ‘‘machinegun.’’ There 27 CFR Part 478 in the final rule as a result of comments. were no other regulatory alternatives to Administrative practice and this proposal that ATF has been able to A Description of and an Estimate of the procedure, Arms and munitions, identify that accomplish the objective of Number of Small Entities to Which the Customs duties and inspection, Exports, this final rule. Rule Will Apply or an Explanation of Imports, Intergovernmental relations, Why No Such Estimate Is Available E. Small Business Regulatory Law enforcement officers, Military This rule would affect primarily Enforcement Fairness Act of 1996 personnel, Penalties, Reporting and manufacturers of bump-stock-type recordkeeping requirements, Research, This rule is a major rule as defined by Seizures and forfeitures, Transportation. devices, FFLs that sell bump-stock-type section 251 of the Small Business devices, and other small retailers of Regulatory Enforcement Fairness Act of 27 CFR Part 479 firearm accessories that have invested in 1996, 5 U.S.C. 804. This rule is likely to Administrative practice and the bump-stock-type device industry. be considered major as it is procedure, Arms and munitions, Excise Based on publicly available information, economically significant and is taxes, Exports, Imports, Military there is one manufacturer affected. Of projected to have an effect of over $100 personnel, Penalties, Reporting and the known retailers, the large retailers million on the economy in at least the recordkeeping requirements, Seizures do not intend to continue selling bump- first year of the rule. and forfeitures, Transportation. stock-type devices. There may be some small retailers that would have intended F. Congressional Review Act Authority and Issuance to continue selling these devices had This rule is a major rule as defined by Accordingly, for the reasons this final rule not been promulgated and the Congressional Review Act, 5 U.S.C. discussed in the preamble, 27 CFR parts would thus be affected by this final rule. 804. This rule is likely to be considered 447, 478, and 479 are amended as Based on the information from this major as it is economically significant follows: analysis, ATF found: and is projected to have an effect of over • There is 1 manufacturer who is likely to $100 million on the economy in at least PART 447—IMPORTATION OF ARMS, be a small entity; the first year of the rule’s existence. AMMUNITION AND IMPLEMENTS OF • There are 2,270 retailers who are likely WAR to be small entities; G. Unfunded Mandates Reform Act of • There are no government jurisdictions 1995 ■ 1. The authority citation for 27 CFR affected by this final rule; and part 447 continues to read as follows: • There are no nonprofits found in the This rule will not result in the data. expenditure by State, local, and tribal Authority: 22 U.S.C. 2778, E.O. 13637, 78 governments, in the aggregate, or by the FR 16129 (Mar. 8, 2013). A Description of the Projected private sector, of $100 million or more ■ 2. In § 447.11, revise the definition of Reporting, Recordkeeping and Other in any one year, and it will not ‘‘Machinegun’’ to read as follows: Compliance Requirements of the Rule, significantly or uniquely affect small Including an Estimate of the Classes of governments. Therefore, no actions were § 447.11 Meaning of terms. Small Entities Which Will Be Subject to deemed necessary under the provisions * * * * * the Requirement and the Type of of the Unfunded Mandates Reform Act Machinegun. A ‘‘machinegun’’, Professional Skills Necessary for of 1995, Public Law 104–4, 109 Stat. 48. ‘‘machine pistol’’, ‘‘submachinegun’’, or Preparation of the Report or Record ‘‘automatic rifle’’ is a firearm which H. Paperwork Reduction Act of 1995 There are no reporting or shoots, is designed to shoot, or can be recordkeeping requirements for this This final rule does not impose any readily restored to shoot, automatically final rule. The only relevant compliance new reporting or recordkeeping more than one shot, without manual requirement consists of disposing of all requirements under the Paperwork reloading, by a single function of the existing inventory of bump-stock-type Reduction Act, 44 U.S.C. 3501–3521. trigger. The term shall also include the devices for small entities that carry frame or receiver of any such weapon, them. There would not be any Disclosure any part designed and intended solely professional skills necessary to record or Copies of the final rule, proposed and exclusively, or combination of parts report in this final rulemaking. rule, and comments received in designed and intended, for use in converting a weapon into a machinegun, A Description of the Steps the Agency response to the proposed rule will be available for public inspection through and any combination of parts from Has Taken to Minimize the Significant which a machinegun can be assembled Economic Impact on Small Entities the Federal eRulemaking portal, http:// regulations.gov, or by appointment if such parts are in the possession or Consistent With the Stated Objectives of under the control of a person. For Applicable Statutes, Including a during normal business hours at: ATF Reading Room, Room 1E–062, 99 New purposes of this definition, the term Statement of the Factual, Policy, and ‘‘automatically’’ as it modifies ‘‘shoots, Legal Reasons for Selecting the York Ave. NE, Washington, DC 20226; telephone: (202) 648–8740. is designed to shoot, or can be readily Alternative Adopted in the Final Rule restored to shoot,’’ means functioning as and Why Each One of the Other List of Subjects the result of a self-acting or self- Significant Alternatives to the Rule 27 CFR Part 447 regulating mechanism that allows the Considered by the Agency Which Affect firing of multiple rounds through a the Impact on Small Entities Was Administrative practice and single function of the trigger; and Rejected procedure, Arms and munitions, ‘‘single function of the trigger’’ means a Alternatives were considered in this Chemicals, Customs duties and single pull of the trigger and analogous final rule. Alternatives include making inspection, Imports, Penalties, motions. The term ‘‘machinegun’’ no regulatory changes. ATF rejected this Reporting and recordkeeping includes a bump-stock-type device, i.e., alternative because it would not be requirements, Scientific equipment, a device that allows a semi-automatic consistent with ATF’s interpretation of Seizures and forfeitures. firearm to shoot more than one shot

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3 66554 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations

with a single pull of the trigger by function of the trigger; and ‘‘single Machine gun. * * * For purposes of harnessing the recoil energy of the semi- function of the trigger’’ means a single this definition, the term ‘‘automatically’’ to which it is affixed pull of the trigger and analogous as it modifies ‘‘shoots, is designed to so that the trigger resets and continues motions. The term ‘‘machine gun’’ shoot, or can be readily restored to firing without additional physical includes a bump-stock-type device, i.e., shoot,’’ means functioning as the result manipulation of the trigger by the a device that allows a semi-automatic of a self-acting or self-regulating shooter. firearm to shoot more than one shot mechanism that allows the firing of * * * * * with a single pull of the trigger by multiple rounds through a single harnessing the recoil energy of the semi- function of the trigger; and ‘‘single automatic firearm to which it is affixed PART 478—COMMERCE IN FIREARMS function of the trigger’’ means a single so that the trigger resets and continues AND AMMUNITION pull of the trigger and analogous firing without additional physical ■ 3. The authority citation for 27 CFR manipulation of the trigger by the motions. The term ‘‘machine gun’’ part 478 continues to read as follows: shooter. includes a bump-stock-type device, i.e., a device that allows a semi-automatic Authority: 5 U.S.C. 552(a); 18 U.S.C. 921– * * * * * 931; 44 U.S.C. 3504(h). firearm to shoot more than one shot with a single pull of the trigger by ■ 4. In § 478.11, revise the definition of PART 479—MACHINE GUNS, ‘‘Machine gun’’ by adding two sentences DESTRUCTIVE DEVICES, AND harnessing the recoil energy of the semi- at the end of the definition to read as CERTAIN OTHER FIREARMS automatic firearm to which it is affixed follows: so that the trigger resets and continues ■ 5. The authority citation for 27 CFR firing without additional physical § 478.11 Meaning of terms. part 479 continues to read as follows: manipulation of the trigger by the * * * * * Authority: 26 U.S.C. 5812; 26 U.S.C. 5822; shooter. Machine gun. * * * For purposes of 26 U.S.C. 7801; 26 U.S.C. 7805. * * * * * this definition, the term ‘‘automatically’’ ■ 6. In § 479.11, revise the definition of Dated: December 18, 2018. as it modifies ‘‘shoots, is designed to ‘‘Machine gun’’ by adding two sentences shoot, or can be readily restored to at the end of the definition to read as Matthew G. Whitaker, shoot,’’ means functioning as the result follows: Acting Attorney General. of a self-acting or self-regulating [FR Doc. 2018–27763 Filed 12–21–18; 8:45 am] § 479.11 Meaning of terms. mechanism that allows the firing of BILLING CODE 4410–FY–P multiple rounds through a single * * * * *

VerDate Sep<11>2014 22:09 Dec 21, 2018 Jkt 247001 PO 00000 Frm 00042 Fmt 4701 Sfmt 9990 E:\FR\FM\26DER3.SGM 26DER3 amozie on DSK3GDR082PROD with RULES3