On Friday, March 23, 2018, Attorney General Sessions announced that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is set to publish proposed rulemaking to classify bump-stocks as machineguns. The Notice of Proposed Rulemaking (NPRM) has not yet been published in the Federal Register, but it is available on DOJ's website. 

If adopted, the proposed rule will amend ATF's regulations in 27 C.F.R. Part 479 to "clarify" ATF's interpretations of the statutory terms "single function of the trigger," "automatically," and "machinegun" as follows:

• "Single function of the trigger" will mean "single pull of the trigger."

• "Automatically" will mean "as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single pull of the trigger."

• The term "machinegun" will include a device that allows semiautomatic firearms to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semiautomatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter (commonly known as bump-stock-type devices.

This proposed rulemaking is in response to the shootings that occurred on October 1, 2017 in Las Vegas, in which the shooter used a bump-fire stock that ATF had classified previously as NOT being a machinegun. Consequently, this rulemaking, if adopted, will supplant any and all prior letter rulings that are inconsistent so that any bump-stock device that allows continuous firing without additional physical manipulation of the trigger by the shooter will qualify as a machinegun. Further, if the final rule is adopted as proposed, current possessors of bump-stock devices will be obligated to dispose of those devices. This is because of the strict prohibitions the Gun Control Act imposes on the possession and transfer of machineguns manufactured after May 19, 1986 (see 18 U.S.C. Sec. 922(o)).  However, it is important to remember the NPRM is only a  proposed rule, and A TF is requesting comments from the public on how to address bump-stock-type devices that private parties currently possess (see below). Parties potentially affected by this rule should review the NPRM and provide comments by the deadline, which will be 90 days after the NPRM is published in the Federal Register. At this date, we do not know what the deadline will be for comments because the NPRM has not yet been posted officially on the Federal Register's website for public inspection. We will follow up with another alert once the NPRM is officially published.

Past ATF Classifications of Bump-Stock-Type Devices

In 2002, the Akins Group submitted to ATF for classification its newest product, the Akins Accelorator, a rifle stock designed to be used with a semiautomatic rifle that allowed the continuous firing with a single pull of the trigger. When the shooter pulled the trigger, springs in the Akins Accelorator caused the firearm to cycle back and forth with each shot so that the trigger finger remains in a constant pull, allowing continuous firing without further action by the shooter until the shooter takes his or her finger off the trigger or the magazine is emptied. ATF initially classified the Akins Accelerator as not a machinegun because the agency interpreted "single function of the trigger" to mean a single movement of the trigger itself as opposed to a single pull by the shooter. 

In 2006, ATF reviewed the Akins Accelerator again, but this time determined the device to be a machinegun because "the best interpretation of the phrase "single function of the trigger" was a "single pull of the trigger." NPRM at 10.  Subsequently, ATF issued Rul. 2006-2, "Classification of Devices Exclusively Designed to Increase the Rate of Fire of a Semiautomatic Firearm." In it, ATF determined the definition of "machinegun" "includes a part or parts designed and intended for use in converting a weapon into a machinegun, and includes a device that, when activated by a single pull of the trigger, initiates an automatic firing cycle that continues until the finger is released or the ammunition supply is exhausted."

However, between 2008 and 2017, ATF issued ten private letter rulings that classified bump-stock devices as NOT machineguns. Why?According to ATF, these bump-stock devices were distinguished from the Akins Accelerator, either because they did not initiate automatic firing that continued until the finger is released, or because they lacked automatically functioning mechanical parts or springs and performed no mechanical function when installed. In all cases, according to ATF, the agency applied a different understanding of the term "automatically."

In response to the Las Vegas mass shooting and the political demand for ATF to ban bump stocks, ATF reviewed these classification determinations "to reconsider and rectify potential classification errors." (NPRM at 16). Now, in the wake of the Advance Notice ATF published on December 26, 2017 (please refer to our alert of December 21, 2017) and a memorandum from President Trump to Attorney General Sessions, dated February 20, 2018, concerning bump fire stocks and similar devices, ATF will publish in the coming days an the NPRM to clarify that bump-stock-type devices are machineguns subject to all prohibitions of the National Firearms Act and Gun Control Act.

ATF Request for Comments

The NPRM lists the following topics on which ATF is requesting comments: 

1. the scope of the proposed rule and the definition of "machinegun;"
2. the costs and benefits of the proposed rule and the appropriate methodology and data for calculating those costs;
3. the reasonableness of the assumption that retailers of bum-stock-type devices are likely to be businesses with an online presence; 
4. how ATF should address bump-stock-type devices that private parties currently possess; and
5. the appropriate means of implementing a final rule.