GUEDES et al v. BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES et al

Filing 1

COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-5846088) filed by FIREARMS POLICY FOUNDATION, FIREARMS POLICY COALITION, INC., DAMIEN GUEDES, MADISON SOCIETY FOUNDATION, INC.. (Attachments: #1 Notice of Exhibits, #2 Exhibit A Part I, #3 Exhibit A Part II, #4 Corporate Disclosure Statement, #5 Civil Cover Sheet, #6 Summons, #7 Executed Final Rule)(Kraut, Adam)

(Billing Code: 4410-FY-P)
DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Parts 447,478, and 479
[Docket No. 2018R-22F; AG Order No.
RIN 1140-AA52
Bump-Stock-Type Devices
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives; Department of

Justice
ACTION: Final rule.
SUMMARY: The Department of Justice is amending the regulations of the Bureau of

Alcohol, Tobacco, Firearms, and Explosives (ATF) to clarify that bump-stock-type
devices-meaning "bump fire" stocks, slide-fire devices, and devices with certain similar
characteristics-are "machineguns" as defined by the National Firearms Act of 1934 and
the Gun Control Act of 1968 because such devices allow a shooter of a semiautomatic
firearm to initiate a continuous firing cycle with a single pull of the trigger. Specifically,
these devices convert an otherwise semiautomatic firearm into a machinegun by
functioning as a self-acting or self-regulating mechanism that harnesses the recoil energy
of the semiautomatic firearm in a manner that allows the trigger to reset and continue

firing without additional physical manipulation of the trigger by the shooter. Hence, a
semiautomatic firearm to which a bump-stock-type device is attached is able to produce
automatic fire with a single pull of the trigger. With limited exceptions, the Gun Control
Act, as amended, makes it unlawful for any person to transfer or possess a machinegun
unless it was lawfully possessed prior to the effective date of the statute. The bumpstock-type devices covered by this final rule were not in existence prior to the effective
date of the statute, and therefore will be prohibited when this rule becomes effective.
Consequently, under the final rule, current possessors of these devices will be required to
destroy the devices or abandon them at an ATF office prior to the effective date of the
rule.
DATES: This rule is effective [INSERT DATE THAT IS 90 DAYS AFTER
PUBLICATION IN THE FEDERAL REGISTER].
FOR FURTHER INFORMATION CONTACT: Vivian Chu, Office of Regulatory
Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and
Explosives, U.S. Department of Justice, 99 New York Ave. NE, Washington, DC 20226;
telephone: [phone].
SUPPLEMENTARY INFORMATION:

I. Executive Summary
A. Summary of the Regulatory Action
B. Summary of Costs and Benefits
II. Background
A. Regulatory Context
B. Las Vegas Shooting
C. Advance Notice of Proposed Rulemaking
III. Notice of Proposed Rulemaking
A. Prior Interpretations of"Single Function of the Trigger" and "Automatically"
B. Re-evaluation of Bump-Stock-Type Devices
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C. Proposed Definition of"Single Function of the Trigger"
D. Proposed Definition of"Automatically"
E. Proposed Clarification That the Definition of "Machinegun" Includes BumpStock-Type Devices
F. Amendment of27 CFR Part 479.11
G. Amendment of27 CFR Part 478.11
H. Amendment of27 CFR Part 447.11
IV. Analysis of Comments and Department Responses for Proposed Rule
A. Comments Generally Supporting the Rule
B. Particular Reasons Raised in Support of the Rule
C. Comments Generally Opposing the Rule
D. Specific Issues Raised in Opposition to the Rule
E. A TF Suggested Alternatives
F. Other Alternatives
G. Proposed Rule's Statutory and Executive Order Review
H. Affected Population
I. Costs and Benefits
J. Regulatory Flexibility Act
K. Miscellaneous Comments
L. Comments on the Rulemaking Process
V. Final Rule
VI. Statutory and Executive Order Review
A. Executive Orders 12866, 13563, and 13771
B. Executive Order 13132
C. Executive Order 12988
D. Regulatory Flexibility Act
E. Small Business Regulatory Enforcement Fairness Act of 1996
F. Congressional Review Act
G. Unfunded Mandates Reform Act of 1995
H. Paperwork Reduction Act of 1995
I. Executive Summary

A. Summary of the Regulatory Action
The current regulations at sections 447.11, 478.11, and 479.11 oftitle 27, Code of
Federal Regulations (CFR), contain definitions for the term "machinegun." 1 The
definitions used in 27 CFR 478.11 and 479.11 match the statutory definition of
"machinegun" in the National Firearms Act of 1934 (NFA), as amended, and the Gun

1 Regulations implementing the relevant statutes spell the term "machine gun" rather than "machinegun."
E.g., 27 CFR 478.11, 479.11. Fm· convenience, this notice uses "machinegun" except when quoting a

source to the contrary.

3

Control Act of 1968 (GCA), as amended. Under the NFA, the term "machinegun" means
"any weapon which shoots, is designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by a single function of the
trigger." 26 U.S.C. 5845(b). The term "machinegun" also includes "the frame or
receiver of any such weapon" or any part or combination of parts designed and intended
"for use in converting a weapon into a machinegun," and "any combination of parts from
which a machinegun can be assembled if such parts are in the possession or under the
control ofa person." Id This definition uses the key terms "single function of the
trigger" and "automatically," but these terms are not defined in the statutory text.
The definition of "machinegun" in 27 CFR 447 .11, promulgated pursuant to the
portion of section 38 of the Arms Export Control Act (AECA) (22 U.S.C. 2778)
delegated to the Attorney General by section l(n)(ii) of Executive Order 13637 (78 FR
16129), is similar. Currently, the definition of"machinegun" in§ 447.11 provides that a
'"machinegun', 'machine pistol', 'submachinegun', or 'automatic rifle' is a firearm
originally designed to fire, or capable of being fired fully automatically by a single pull of
the trigger."
In 2006, ATF concluded that certain bump-stock-type devices qualified as
machineguns under the NFA and GCA. Specifically, ATF concluded that a device
attached to a semiautomatic firearm that uses an internal spring to harness the force of a
firearm's recoil so that the firearm shoots more than one shot with a single pull of the
trigger is a machinegun. Between 2008 and 2017, however, ATF also issued
classification decisions concluding that other bump-stock-type devices were not
machineguns, primarily because the devices did not rely on internal springs or similar

4

mechanical parts to channel recoil energy. Decisions issued during that time did not
include extensive legal analysis relating to the definition of"machinegun." ATF
undertook a review of its past classifications and determined that those conclusions did
not reflect the best interpretation of "machinegun" under the NFA and GCA.
ATF decided to promulgate a rule that would bring clarity to the definition of
"machinegun"-specifically with respect to the terms "automatically" and "single
function of the trigger," as those terms are used to define "machinegun." As an initial
step in the process of promulgating a rule, on December 26, 2017, the Department of
Justice (Department) published in the Federal Register an advance notice of proposed
rulemaking titled "Application of the Definition ofMachinegun to 'Bump Fire' Stocks
and Other Similar Devices." 82 FR 60929. Subsequently, on March 29, 2018, the
Department published in the Federal Register a notice of proposed rulemaking (NPRM)
titled "Bump-Stock-Type Devices." 83 FR 13442.
The NPRM proposed to amend the regulations at 27 CFR 447.11, 478.11, and
479.11 to clarify that bump-stock-type devices are "machineguns" as defined by the NFA
and GCA because such devices allow a shooter of a semiautomatic firearm to initiate a
continuous firing cycle with a single pull of the trigger. Specifically, these devices
convert an otherwise semiautomatic firearm into a machinegun by functioning as a selfacting or self-regulating mechanism that harnesses the recoil energy of the semiautomatic
firearm in a manner that allows the trigger to reset and continue firing without additional
physical manipulation of the trigger by the shooter. Hence, a semiautomatic firearm to
which a bump-stock-type device is attached is able to produce automatic fire with a
single pull of the trigger. 83 FR at 13447-48.

5

The NPRM proposed regulatory definitions for the statutory terms "single
function of the trigger" and "automatically," and amendments of the regulatory definition
of"machinegun" for purposes of clarity. Specifically, the NPRM proposed to amend the
definitions of"machinegun" in§§ 478.11 and 479.11, define the term "single function of
the trigger" to mean "single pull of the trigger," and define the term "automatically" to
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." 83 FR at 13447-48. The NPRM
also proposed to clarify that the definition of"machinegun" includes a device that allows
a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by
harnessing the recoil energy of the semiautomatic firearm to which it is affixed so that the
trigger resets and continues firing without additional physical manipulation of the trigger
by the shooter (commonly known as bump-stock-type devices). Id. at 13447. Finally,
the NPRM proposed to harmonize the definition of "machinegun" in § 44 7 .11 with the
definitions in 27 CPR parts 478 and 479, as those definitions would be amended. Id. at
13448.
The goal of this final rule is to amend the relevant regulatory definitions as
described above. The Department, however, has revised the definition of"single
function of the trigger" to mean "single pull of the trigger" and analogous motions, taking
into account that there are other methods of initiating an automatic firing sequence that
do not require a pull. This final rule also informs current possessors of bump-stock-type
devices of the proper methods of disposal, including destruction by the owner or
abandonment to ATF.
B. Summary o_[Costs and Benefits

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ATF estimates the total undiscounted cost of this rule at $312.1 million over 10
years. The total 7% discount cost is estimated at $245.5 million, and the discounted costs
would be $32.8 million and $35.0 million, annualized at 3% and 7% respectively. The
estimate includes costs to the public for loss of property ($ 102.5 million); costs of
forgone future production and sales ($198.9 million); costs of disposal ($9.4 million); and
government costs ($1.3 million). Unquantified costs include potential loss of wages for
employees of bump-stock-type device manufacturers, notification to bump-stock-type
device owners of the need to destroy the devices, and loss of future usage by the owners
of bump-stock-type devices. A TF did not calculate any cost savings for this final rule.
This final rule clarifies that bump-stock-type devices are machineguns that are
subject to the NFA and GCA. The provisions of those statutes addressing machineguns
are designed to increase public safety by, among other things, limiting legal access to
them. Consistent with the NFA and GCA, therefore, a desired outcome of this final rule
is increased public safety.

II. Background
A. Regulatory Context
The Attorney General is responsible for enforcing the NFA, as amended, and the
GCA, as amended. 2 This responsibility includes the authority to promulgate regulations
. necessary to enforce the provisions of the NFA and GCA. See 18 U.S.C. 926(a); 26
U.S.C. 7801(a)(2)(A), 7805(a). The Attorney General has delegated the responsibility for

2

NFA provisions still refer to the "Secretary of the Treasury." 26 U.S.C. ch. 53. However, the Homeland
Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, transferred the functions of ATF from the
Department of the Treasury to the Depattment of Justice, under the general authority ofthe Attorney
General. 26 U.S.C. 780l(a)(2); 28 U.S.C. 599A(c)(I). Thus, for ease of reference, this notice refers to the
Attomey General.

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administering and enforcing the NFA and GCA to the Director of ATF, subject to the
direction of the Attorney General and the Deputy Attorney General. See 28 CFR
0.130(a)(l) (2). Accordingly, the Department and ATF have promulgated regulations
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implementing both the NFA and the GCA. See 27 CFR pts. 478,479. In particular, ATF
for decades promulgated rules governing "the procedural and substantive requirements
relative to the importation, manufacture, making, exportation, identification and
registration of, and the dealing in, machine guns." 27 CFR 479.1; see, e.g., United States

v. Dodson, 519 F. App'x 344, 348-49 & n.4 (6th Cir. 2013) (acknowledging ATF's role
in interpreting the NF A's definition of"machinegun"); F.J. Vollmer Co. v. Higgins, 23
F.3d 448, 449-51 (D.C. Cir. 1994) (upholding an ATF determination regarding
machinegun receivers). Courts have recognized ATF's leading regulatory role with
respect to firearms, including in the specific context of classifying devices as
machineguns under the NFA. See, e.g., Yorkv. Sec'y a/Treasury, 774 F.2d 417, 419-20
( I 0th Cir. I 985).
The GCA defines "machinegun" by referring to the NFA definition, 3 which
includes "any weapon which shoots, is designed to shoot, or can be readily restored to
shoot, automatically more than one shot, without manual reloading, by a single function
of the trigger." 26 U.S.C. 5845(b). The term "machinegun" also includes "the frame or
receiver of any such weapon" or any part, or combination of parts, designed and intended
"for use in converting a weapon into a machinegun," and any combination of parts from
which a machinegun can be assembled if such parts are in the possession or under the

3

18 U.S.C. 92l(a)(23).

8

control of a person. Id. With limited exceptions, the GCA prohibits the transfer or
possession ofmachineguns under 18 U.S.C. 922(0).
In 1986, Congress passed the Firearms Owners' Protection Act (FOPA), Pub. L.
99-308, 100 Stat. 449, which included a provision that effectively froze the number of
legally transferrable machineguns to those that were registered before the effective date
of the statute. 18 U.S.C. 922(0). Due to the fixed universe of"pre-1986" machineguns
that may be lawfully transferred by nongovernmental entities, the value of those
machineguns has steadily increased over time. This price premium on automatic
weapons has spurred inventors and manufacturers to develop firearms, triggers, and other
devices that permit shooters to use semiautomatic rifles to replicate automatic fire
without converting these rifles into "machineguns" under the NFA and GCA. ATF began
receiving classification requests for such firearms, triggers, and other devices that
replicate automatic fire beginning in 1988. ATF has noted a significant increase in such
requests since 2004, often in connection with rifle models that were, until 2004, defined
as "semiautomatic assault weapons" and prohibited under the Public Safety and
Recreational Firearms Use Protection Act, 18 U.S.C. 92l(a)(30) (sunset effective Sept.
13, 2004).
ATF received classification requests pertaining to bump-stock-type devices.
Shooters use bump-stock-type devices with semiautomatic firearms to accelerate the
firearms' cyclic firing rate to mimic automatic fire. These devices replace a rifle's
standard stock and free the weapon to slide back and forth rapidly, harnessing the energy
from the firearm's recoil either through a mechanism like an internal spring or in
conjunction with the shooter's maintenance of pressure (typically constant forward

9

pressure with the non-trigger hand on the barrel-shroud or fore-grip of the rifle, and
constant rearward pressure on the device's extension ledge with the shooter's trigger
finger).
In 2006, ATF concluded that certain bump-stock-type devices qualified as
machineguns under the NFA and GCA. Specifically, ATF concluded that devices
attached to semiautomatic firearms that use an internal spring to harness the force of the
recoil so that the firearm shoots more than one shot with a single pull of the trigger are
machineguns. Between 2008 and 2017, however, ATF also issued classification
decisions concluding that other bump-stock-type devices were not machineguns,
including a device submitted by the manufacturer of the bump-stock-type devices used in
the 2017 Las Vegas shooting discussed below. Those decisions indicated that
semiautomatic firearms modified with these bump-stock-type devices did not fire
"automatically," and thus were not "machineguns," because the devices did not rely on
internal springs or similar mechanical parts to channel recoil energy. (For further
discussion of ATF's prior interpretations, see Part III.A.) Because ATF has not regulated
these certain types of bump-stock-type devices as machineguns under the NFA or GCA,
they have not been marked with a serial number or other identification markings.
Individuals, therefore, have been able to legally purchase these devices without
undergoing background checks or complying with any other Federal regulations
applicable to firearms.

B. Las Vegas Shooting
On October 1, 2017, a shooter attacked a large crowd attending an outdoor
concert in Las Vegas, Nevada. By using several AR-type rifles with attached bump-

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stock-type devices, the shooter was able to fire several hundred rounds of ammunition in
a short period of time, killing 58 people and wounding approximately 500. The bumpstock-type devices recovered from the scene included two distinct, but functionally
equivalent, model variations from the same manufacturer. These types of devices were
readily available in the commercial marketplace through online sales directly from the
manufacturer, and through multiple retailers.
The Las Vegas bump-stock-type devices, as well as other bump-stock-type
devices available on the market, all utilize essentially the same functional design. They
are designed to be affixed to a semiautomatic long gun (most commonly an AR-type rifle
or an AK-type rifle) in place of a standard, stationary rifle stock, for the express purpose
of allowing "rapid fire" operation of the semiautomatic firearm to which they are affixed.
They are configured with a sliding shoulder stock molded (or otherwise attached) to a
pistol-grip/handle (or "chassis") that includes an extension ledge (or "finger rest") on
which the shooter places the trigger finger while shooting the firearm. The devices also
generally include a detachable rectangular receiver module (or "bearing interface") that is
placed in the receiver well of the device's pistol-grip/handle to assist in guiding and
1"egulating the recoil of the firearm when fired. Bump-stock-type devices, including those
with the aforementioned characteristics, are generally designed to channel recoil energy
to increase the rate of fire of a semiautomatic firearm from a single trigger pull.
Accordingly, when a bump-stock-type device is affixed to a semiautomatic firearm, the
device harnesses and directs the firearm's recoil energy to slide the firearm back and
forth so that the trigger automatically re-engages by "bumping" the shooter's stationary
finger without additional physical manipulation of the trigger by the shooter.

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Following the mass shooting in Las Vegas, ATF received correspondence from
members of the United States Congress, as well as nongovernmental organizations,
requesting that ATF examine its past classifications and determine whether bump-stocktype devices available on the market constitute machineguns under the statutory
definition. Consistent with its authority to "reconsider and rectify" potential
classification errors, Akins v. United States, 312 F. App 'x I 97, 200 (11th Cir. 2009) (per
curiam), ATF reviewed its earlier determinations for bump-stock-type devices issued
between 2008 and 2017 and concluded that those determinations did not include
extensive legal analysis of the statutory terms "automatically" or "single function of the
trigger." The Department decided to move forward with the rulemaking process to
clarify the meaning of these terms, which are used in the NFA's statutory definition of
"machinegun."
C. Advance Notice of Proposed Rulemaking

On December 26, 2017, the Department, as an initial step in the process of
promulgating a Federal regulation interpreting the definition of"machinegun" with
respect to bump-stock-type devices, published an advance notice of proposed rulemaking
(ANPRM) in the Federal Register. Application of the Definition ofMachincgun to
"Bump Fire" Stocks and Other Similar Devices, 82 FR 60929. The ANPRM solicited
comments concerning the market for bump-stock-type devices and manufacturer and
retailer data. Specifically, the Department asked a series of questions of consumers,
retailers, and manufacturers of bump-stock-type devices regarding the cost of bumpstock-type devices, average gross receipts of sales, and the volume and cost of
manufacturing, as well as input on the potential effect of a rulemaking affecting bump-

12

stock-type devices, including viable markets or the cost of disposing of inventory. Public
comment on the ANPRM concluded on January 25, 2018. While ATF received over
115,000 comments, the vast majority of these comments were not responsive to the
ANPRM.
On February 20, 2018, the President issued a memorandum to the Attorney
General concerning "bump fire" stocks and similar devices. Application of the
Definition ofMachinegun to "Bump Fire" Stocks and Other Similar Devices, 83 FR
7949. The memorandum noted that the Department of Justice had already "started the
process of promulgating a Federal regulation interpreting the definition of 'machinegun'
under Federal law to clarify whether certain bump stock type devices should be illegal."
Id. The President then directed the Department of Justice, working within established

legal protocols, "to dedicate all available resources to complete the review of the
comments received [in response to the ANPRM], and, as expeditiously as possible, to
propose for notice and comment a rule banning all devices that turn legal weapons into
machineguns." Id.

III. Notice of Proposed Rulemaking
On March 29, 2018, the Department published in the Federal Register a notice of
proposed rulemaking (NPRM) titled "Bump-Stock-Type Devices," 83 FR 13442 (ATF
Docket No. 2017R-22), proposing changes to the regulations in 27 CFR 447.11, 478.11,
and 479.11. The comment period for the proposed rule concluded on June 27, 2018.

A. Prior Inte1pretations of "Single Function of the Trigger" and "Automatically"
In the NPRM, the Department reviewed ATF's history of classifying bump-stocktype devices through agency rulings and relevant litigation. In particular, it described

13

how ATP published ATP Ruling 2006-2, "Classification of Devices Exclusively
Designed to Increase the Rate of Fire of a Semiautomatic Firearm." The ruling explained
that ATP had received requests from "several members of the firearms industry to
classify devices that are exclusively designed to increase the rate of fire of a
semiautomatic firearm." ATP Ruling 2006-2, at I. Prior to issuing ATP Ruling 2006-2,
ATP had examined a device called the "Akins Accelerator." To operate the device, the
shooter initiated an automatic firing sequence by pulling the trigger one time, which in
turn caused the rifle to recoil within the stock, permitting the trigger to lose contact with
the finger and manually reset. Springs in the Akins Accelerator then forced the rifle
forward, forcing the trigger against the finger, which caused the weapon to discharge the
ammunition. The recoil and the spring-powered device thus caused the firearm to cycle
back and forth, impacting the trigger finger without further input by the shooter while the
firearm discharged multiple shots. The device was advertised as able to fire
approximately 650 rounds per minute. See id at 2.
ATP initially reviewed the Akins Accelerator in 2002 and determined it not to be
a machinegun because ATP interpreted the statutory term "single function of the trigger"
to refer to a single movement of the trigger. But ATP undertook further review of the
device based on how it actually functioned when sold and later determined that the Akins
Accelerator should be classified as a machinegun. ATP reached that conclusion because
the best interpretation of the phrase "single function of the trigger" includes a "single pull
of the trigger." The Akins Accelerator qualified as a machinegun because ATP
determined through testing that when the device was installed on a semiautomatic rifle
(specifically a Ruger Model I 0-22), it resulted in a weapon that "[with] a single pull of

14

the trigger initiates an automatic firing cycle that continues until the finger is released, the
weapon malfunctions, or the ammunition supply is exhausted." Akins v. United States,
No. 8:08-cv-988, slip op. at 5 (M.D. Fla. Sept. 23, 2008) (internal quotation marks
omitted).
When issuing A TF Ruling 2006-2, ATF set forth a detailed description of the
components and functionality of the Akins Accelerator and devices with similar designs.
The ruling determined that the phrase "single function of the trigger" in the statutory
definition of"machinegun" was best interpreted to mean a "single pull of the trigger."
ATF Ruling 2006-2, at 2 (citing National Firearms Act: Hearings Before the Comm. on
Ways and Means, House ofRepresentatives, Second Session on HR. 9066, 73rd Cong., at
40 ( 1934)). A TF further indicated that this interpretation would apply when the agency
classified devices designed to increase the rate of fire of semiautomatic firearms. Thus,
ATF concluded in ATF Ruling 2006-2 that devices exclusively designed to increase the
rate of fire of semiautomatic firearms were machineguns if, "when activated by a single
pull of the trigger, [such devices] initiate[] an automatic firing cycle that continues until
either the finger is released or the ammunition supply is exhausted." Id at 3. Finally,
because the "single pull of the trigger" interpretation constituted a change from ATF's
prior interpretations of the phrase "single function of the trigger," ATF Ruling 2006-2
concluded that "[t]o the extent previous ATF rulings are inconsistent with this
determination, they are hereby overruled." Id.
Following its reclassification of the Akins Accelerator as a machinegun, ATF
determined and advised owners of Akins Accelerator devices that removal and disposal
of the internal spring-the component that caused the rifle to slide forward in the stock-

15

would render the device a non-machinegun under the statutory definition. Thus, a
possessor could retain the device by removing and disposing of the spring, in lieu of
destroying or surrendering the device.
In May 2008, the inventor of the Akins Accelerator filed a lawsuit challenging
ATF's classification of his device as a machinegun, claiming the agency's decision was
arbitrary and capricious under the Administrative Procedure Act (APA). Akins v. United

States, No. 8:08-cv-988, slip op. at 7-8 (M.D. Fla. Sept. 23, 2008). The United States
District Court for the Middle District of Florida rejected the plaintiffs challenge, holding
that ATF was within its authority to reconsider and change its interpretation of the phrase
"single function of the trigger" in the NFA's statutory definition of"machinegun." Id. at
14. The court further held that the language of the statute and the legislative history
supported ATF's interpretation of the statutory phrase "single function of the trigger" as
synonymous with "single pull of the trigger." Id. at 11-12. The court concluded that in
A TF Ruling 2006-2, ATF had set forth a "reasoned analysis" for the application of that
new interpretation to the Akins Accelerator and similar devices, including the need to
"protect the public from dangerous firearms." Id. at 12.
The United States Court of Appeals for the Eleventh Circuit affirmed the district
court's decision, holding that "[t]he interpretation by the Bureau that the phrase 'single
function of the trigger' means a 'single pull of the trigger' is consonant with the statute
and its legislative history." Akins, 312 F. App'x at 200. The Eleventh Circuit further
concluded that "[b]ased on the operation of the Accelerator, the Bureau had the authority
to 'reconsider and rectify' what it considered to be a classification error." Id.

16

In ten letter rulings between 2008 and 2017, ATF applied the "single pull of the
trigger" interpretation to other bump-stock-type devices. Like the Akins Accelerator,
these other bump-stock-type devices allowed the shooter to fire more than one shot with a
single pull of the trigger. However, ATF ultimately concluded that these devices did not
qualify as machineguns because, in ATF's view, they did not "automatically" shoot more
than one shot with a single pull of the trigger. ATF also applied its "single pull of the
trigger" interpretation to other trigger actuators, two-stage triggers, and other devices
submitted to ATF for classification. Depending on the method of operation, some such
devices were classified to be machineguns that were required to be registered in the
National Firearms Registration and Transfer Record (NFRTR) and could not be
transferred or possessed, except in limited circumstances, under 18 U.S.C. 922(o). 4

4

Examples of recent ATF classification letters relying on the "single pull of the trigger" interpretation to
classify submitted devices as machineguns include the following:
•

•

On April 13, 2015, ATF issued a classification letter regarding a device characterized as a
"positive reset trigger," designed to be used on a semiautomatic AR-style rifle. The device
consisted of a support/stock, secondaiy trigger, secondary trigger link, pivot toggle, shuttle link,
and shuttle. ATF determined that, after a single pull of the trigger, the device utilized recoil
energy generated from firing a projectile to fire a subsequent projectile. ATF noted that "a 'single
function of the trigger' is a single pull," and that the device utilized a "single function of the
trigger" because the shooter need not release the trigger to fire a subsequent projectile, and instead

"can maintain constant pressure through a single function of the trigger."
On October 7, 2016, ATF issued a classification letter regarding two devices described as "LV-15
Trigger Reset Devices." The devices, which were designed to be used on an AR-type rifle, were
essentially identical in design and function and were submitted by the same requester (per the
requester, the second device included "small improvements that have come as the result of further
development since the original submission"). The devices were each powered by a rechargeable
batte1y and included the following components: a self-contained trigger mechanism with an
electrical connection, a modified two-position semiautomatic AR-15 type selector lever, a
rechargeable battery pack, a grip assembly/trigger guard with electrical connections, and a piston
that projected forward through the lower rear portion of the trigger guard and pushed the trigger
forward as the firearm cycled. ATF held that "to initiate the firing ... a shooter must simply pull
the trigger." It explained that although the mechanism pushed the trigger forward, "the shooter
never releases the trigger. Consistent with [the requester's] explanation, ATF demonstrated that
the device fired multiple projectiles with a "single function of the trigger" because a single pull
was all that was required to initiate and maintain a firing sequence.

17

In the NPRM, the Department also noted that prior ATF rulings concerning
bump-stock-type devices did not provide substantial or consistent legal analysis regarding
the meaning of the term "automatically," as it is used in the NFA and GCA. For
example, A TF Ruling 2006-2 concluded that devices like the Akins Accelerator initiated
an "automatic" firing cycle because, once initiated by a single pull of the trigger, "the
automatic firing cycle continues until the finger is released or the ammunition supply is
exhausted." ATF Ruling 2006-2, at I. In contrast, other ATF letter rulings between 2008
and 2017 concluded that bump-stock-type devices that enable a semiautomatic firearm to
shoot more than one shot with a single function of the trigger by harnessing a
combination of the recoil and the maintenance of pressure by the shooter do not fire
"automatically." Of the rulings issued between 2008 and 2017, A TF provided different
explanations for why certain bump-stock-type devices were not machineguns, but none of
them extensively examined the meaning of"automatically." For instance, some letter
rulings concluded that certain devices were not machineguns because they did not
"initiate[] an automatic firing cycle that continues until either the finger is released or the
ammunition supply is exhausted," without further defining the term "automatically."

E.g., Letter for Michael Smith from ATF's Firearm Technology Branch Chicf(April 2,
2012). Other letter rulings concluded that certain bump-stock-type devices were not
machineguns because they lacked any "automatically functioning mechanical parts or
springs and perform[ ed] no mechanical function[ s] when installed," again without further
defining the term "automatically" in this context. E.g., Letter for David Compton from
ATF's Firearm Technology Branch Chief(June 7, 2010).

B. Re-evaluation of Bump-Stock-Type Devices

18

In the NPRM, the Department reviewed the functioning of semiautomatic
firearms, describing that ordinarily, to operate a semiautomatic firearm, the shooter must
repeatedly pull and release the trigger to allow it to reset, so that only one shot is fired
with each pull of the trigger. 83 FR at 13443. It then explained that bump-stock-type
devices, like the ones used in Las Vegas, are designed to channel recoil energy to
increase the rate of fire of semiautomatic firearms from a single trigger pull. Id.
Shooters can maintain a continuous firing cycle after a single pull of the trigger by
directing the recoil energy of the discharged rounds into the space created by the sliding
stock.(approximately 1.5 inches) in constrained linear rearward and forward paths. Id
These bump-stock-type devices are generally designed to operate with the shooter
shouldering the stock of the device (in essentially the same manner a shooter would use
an unmodified semiautomatic shoulder stock), maintaining constant forward pressure
with the non-trigger hand on the barrel-shroud or fore-grip of the rifle, and maintaining
the trigger finger on the device's ledge with constant rearward pressure. Id. The device
itself then harnesses the recoil energy of the firearm, providing the primary impetus for
automatic fire. Id
In light of its reassessment of the relevant statutory terms "single· function of the
trigger" and "automatically," the NPRM stated ATF's conclusion that bump-stock-type
devices are "machineguns" as defined in the NF A because they convert an otherwise
semiautomatic firearm into a machinegun by functioning as a self-acting or selfregulating mechanism that, after a single pull of the trigger, harnesses the recoil energy of
the semiautomatic firearm in a manner that allows the trigger to reset and continue firing
without additional physical manipulation of the trigger by the shooter. Hence, a

19

semiautomatic firearm to which a bump-stock-type device is attached is able to produce
automatic fire with a single pull of the trigger.
C. Proposed Definition of "Single Function of the Trigger"

The Department proposed to interpret the phrase "single function of the trigger"
to mean "a single pull of the trigger," as it considered it the best interpretation of the
statute and because it reflected ATF's position since 2006. The Supreme Court in Staples
v. United States, 511 U.S. 600,602 n.1 (1994), indicated that a machinegun within the
NFA "fires repeatedly with a single pull of the trigger." This interpretation is also
consistent with how the phrase "single function of the trigger" was understood at the time
of the NF A's enactment in 1934. For instance, in a congressional hearing leading up to
the NFA's enactment, the National Rifle Association's then-president testified that a gun
"which is capable of firing more than one shot by a single pull of the trigger, a single
function of the trigger, is properly regarded, in my opinion, as a machine gun." National
Firearms Act: Hearings Before the Committee on Ways and Means, HR. 9066, 73rd
Cong., 2nd Sess., at 40 (1934). Furthermore, and as noted above, the Eleventh Circuit in
Akins concluded that ATF's interpretation of"single function of the trigger" to mean a
"single pull of the trigger" "is consonant with the statute and its legislative history." 312
F. App'x at 200. No other court has held otherwise. 5

5

The NPRM also explained that the term "pull" can be analogized to "push" and other terms that describe
activation of a trigger. For instance, ATF used the term "pull" in classifying the Akins Accelerator
because that was the manner in which the firearm's trigger was activated with the device. But the courts
have made clear that whether a trigger is operated through a "pull," "push," or some other action such as a
flipping a switch, does not change the analysis of the functionality ofa firearm. For example, in United
States v. Fleischli, 305 F.3d 643, 655-56 (7th Cir. 2002), the Seventh Circuit rejected the argument that a
switch did not constitute a trigger for purposes of assessing whether a firearm was a machinegun under the
NFA, because such an interpretation of the statute would lead to "the absurd result of enabling persons to
avoid the NF A simply by using weapons that employ a button or switch mechanism for firing." See also
United States v. Camp, 343 F.3d 743, 745 (5th Cir. 2003) ('"To construe "trigger" to mean only a small

20

D. Proposed Definition of "Automatically"
The Department also proposed to interpret the term "automatically" to 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." That interpretation reflects the ordinary
meaning of that term at the time of the NFA's enactment in 1934. The word
"automatically" is the adverbial form of "automatic," meaning "[h]aving a self-acting or
self-regulating mechanism that performs a required act at a predetermined point in an
operation[.]" Webster's New International Dictionary 187 (2d ed. 1934); see also I

Oxford English Dictionary 574 (I 933) (defining "Automatic" as "[s]elf-acting under
conditions fixed for it, going of itself."),
Relying on these definitions, the United States Court of Appeals for the Seventh
Circuit interpreted the term "automatically" as used in the NFA as "delineat[ing] how the
discharge of multiple rounds from a weapon occurs: as the result of a self-acting
mechanism ... set in motion by a single function of the trigger and ... accomplished
without manual reloading." United States v. Olofson, 563 F.3d 652, 658 (7th Cir. 2009).
So long as the firearm is capable of producing multiple rounds with a single pull of the
Lrigger until the trigger finger is removed, the ammunition supply is exhausted, or the
firearm malfunctions, the firearm shoots "automatically" irrespective of why the firing
sequence ultimately ends. Id. ("[T]he reason a weapon ceased firing is not a matter with
which§ 5845(b) is concerned."). Olo/iYm thus requires only that the weapon shoot

lever moved by a finger would be to impute to Congress the intent to restrict the term to apply only to one
kind of trigger, albeit a very common kind. The language [in 18 U.S.C. 922(0)] implies no intent to so
restrict the meaning[.]'" (quoting United States v. Joke/, 969 F.2d 132, 135 (5th Cir. 1992) (emphasis
removed))). Examples ofmachineguns that operate through a trigger activated by a push include the
Browning design, M2 .50 caliber, the Vickers, the Maxim, and the Ml34 hand-fired Minigun.

21

multiple rounds with a single function of the trigger "as the result of a self-acting
mechanism," not that the self-acting mechanism produces the firing sequence without any
additional action by the shooter. This definition accordingly requires that the self-acting
or self-regulating mechanism allows the firing of multiple rounds through a single
function of the trigger.
E. Proposed Clarification That the D~finition of "Machinegun" Includes Bump-Stock-

Type Devices
The Department also proposed, based on the interpretations discussed above, to
clarify that the term "machinegun" includes a device that allows a semiautomatic firearm
to shoot more than one shot with a single pull of the trigger by harnessing the recoil
energy of the semiautomatic firearm to which it is affixed so that the trigger resets and
continues firing without additional physical manipulation of the trigger by the shooter.
The Department explained that when a shooter who has affixed a bump-stock-type device
to a semiautomatic firearm pulls the trigger, that movement initiates a firing sequence
that produces more than one shot. And that firing sequence is "automatic" because the
device harnesses the firearm's recoil energy in a continuous back-and-forth cycle that
allows the shooter to attain continuous firing after a single pull of the trigger, so long as
the trigger finger remains stationary on the device's ledge (as designed). Accordingly,
these devices are included under the definition of "machinegun" and, therefore, come
within the purview of the NFA.

F Amendment o/27 CFR 479.11
The regulatory definition of"machine gun" in 27 CFR 479.11 matches the
statutory definition of "machinegun" in the NFA. The definition includes the terms

22

"single function of the trigger" and "automatically," but those terms are not defined in the
statutory text. The NPRM proposed to define these terms in order to clarify the meaning
of"machinegun." Specifically, the Department proposed to amend the definition of
"machine gun" in 27 CFR 479.11 by:

I. defining the term "single function of the trigger" to mean "single pull of the
trigger";
2. defining the term "automatically" to mean "as the result of a self-acting or selfregulating mechanism that allows the firing of multiple rounds through a single pull of
the trigger"; and
3. adding a sentence to clarify that a "machine gun" includes a device that allows
a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by
harnessing the recoil energy of the semiautomatic firearm to which it is affixed so that the
trigger resets and continues firing without additional physical manipulation of the trigger
by the shooter (commonly known as a bump-stock-type device).

G. Amendment o.f27 CFR 478.11
The GCA and its implementing regulations in 27 CFR part 4 78 reference the
NFA's definition ofmachinegun. Accordingly, the NPRM proposed to make the san1e
amendments in 27 CFR 478.11 that were proposed for§ 479.11.

H Amendment o.f 27 CFR 447.11
The Arms Export Control Act (AECA), as amended, does not define the term
"machinegun" in its key provision, 22 U.S.C. 2778. 6 However, regulations in 27 CFR

6 Under the AECA, the President has the authority to designate which items are controlled as defense
articles for purposes of importation and exportation. 22 U.S.C. 2778(a)(I). The President has, in turn,
delegated to the Attorney General the authority to promulgate regulations designating the defense articles
controlled for permanent importation, including machineguns.

23

part 44 7 that implement the AECA include a similar definition of "machinegun," and
explain that machineguns, submachineguns, machine pistols, and fully automatic rifles
fall within Category I(b) of the U.S. Munitions Import List when those defense articles
are permanently imported. See 27 CFR 447.11, 447.21. Currently, the definition of
"machinegun" in§ 447.11 provides that "[a] 'machinegun', 'machine pistol',
'submachinegun', or 'automatic rifle' is a firearm originally designed to fire, or capable
of being fired fully automatically by a single pull of the trigger." The NPRM proposed to
harmonize the AECA's regulatory definition ofmachinegun with the definitions in 27
CFR parts 478 and 479, as those definitions would be amended by the proposed rule.
IV. Analysis of Comments and Department Responses for Proposed Rule
In response to the NPRM, A TF received over 186,000 comments. Submissions
came from individuals, including foreign nationals, lawyers, and government officials, as
well as various interest groups. Overall, 119,264 comments expressed support for the
proposed rule, 66,182 comments expressed opposition, and for 657 comments? the
commenter's position could not be determined. The commenters' grounds for support
and opposition, along with specific concerns and suggestions, are discussed below.

A. Comments Generally Supporting the Rule
Comments Received
Of the 119,264 comments received in support of the rule, 14,618 used one form
letter in support of the proposed rule; 51,454 were petitions or petition signatures
compiled by an organization and individuals; and 53,192 were unique comments. Many
of the 53,192 unique comments used repetitious declarations of support or a single
sentence or phrase, declaring, in essence, (I) ban bump stocks now or I support a ban; (2)

24

common sense gun reform or gun control now; (3) bump stocks should be outlawed; or
(4) I fully support this proposed rule. Others supporting the rule expressed disbelief as to
how such devices were legal and that it seemed to be a "no brainer," especially after Las
Vegas, to prevent anyone from possessing an item that allows the shooter to inflict mass
carnage. Several commenters stated that they were present at or knew people who were
directly affected by the Las Vegas shooting and urged finalization of the proposed rule on
bump-stock-type devices. Some commenters identified as active or former military,
while other individuals noted their support for a prohibition on bump-stock-type devices
while identifying as gun owners and gun enthusiasts, strong supporters of the Second
Amendment, or members of a particular pro-gun interest group. For instance, one
commenter wrote, "As an FFL [Federal firearms license] dealer, gun owner and collector,
I am writing to support the ban on the sale of bump stocks." Another explained that he
has been a member of the National Rifle Association (NRA) for over 30 years and loves
hunting and shooting but believes "there is zero justification for bump stocks," because
the "only thing bump stocks are good for is creating a kill zone."
Department Response
The Department acknowledges the commentcrs' support for the proposed rule.
\

The rule clarifies the regulatory definition of "machinegun" to include bump-stock-type
devices, and, therefore, snbjects them to the restrictions imposed by the NFA and GCA.
As 18 U.S.C. 922(0), with limited exceptions, prohibits the possession ofmachineguns
that were not lawfully possessed before the effective date of the statute, current
possessors of bump-stock-type devices will be obligated to cease possessing these
devices.

25

B. Particular Reasons Raised in Support of the Rule

I. Threat to Public Safety
Comments Received
Over 36,000 of the supporting comments expressly cited public safety, saving
lives (or specifically children's lives), reducing gun deaths and future mass shootings, or
protecting law enforcement as the reason for supporting a rule that would restrict
possession of bump-stock-type devices. A majority of these comments, including
submissions from professional medical associations, declared that allowing persons to
modify semiautomatic rifles with bump-stock-type devices so that they operate with a
similar rate of fire as fully automatic rifles poses a substantial risk to public safety and
that the continued presence of these devices puts all communities at risk. Some
commenters said that research shows that nations that have reasonable gun restrictions
experience fewer mass shootings. Additionally, many students and numerous individuals
identified as former or current teachers expressed support for the rule, with some citing
fear that their school could be the next site of a mass shooting or stating that they do not
want to continue seeing their students in constant fear of the next active shooter.
Several conunenters also noted that bump-stock-type devices arc a danger to
police forces, with one commenter, a retired Jaw enforcement officer, declaring that
regulating bump-stock-type devices is an issue of public safety and will save the lives of
those who are in law enforcement. Similarly, other commenters, including a former
military physician, stated that the rapid fire enabled by bump-stock-type devices
significantly increases the casualties in an attack and puts police officers who respond at
greater risk. In light of the Las Vegas shooting, many commenters argued that, given that

26

bump-stock-type devices are easily attainable and inexpensive items, prohibiting these
devices is a needed step to reduce gun deaths or prevent future mass shootings. Many
individuals, including several State and local government officials and gun safety or
public health groups, expressed the urgent need for ATP to finalize the proposed rule in
order to protect the public and children, especially given the frequency of mass shootings
in recent months and the likelihood that a potential perpetrator will seek out these
devices.
Department Response
The Department acknowledges that a bump-stock-type device combined with a
semiautomatic firearm can empower a single individual to take many lives in a single
incident. The reason for the Department's classification change is that ATP, upon review

,'

(discussed in Part III), believes that bump-stock-type devices must be regulated because
they satisfy the statutory definition of "machinegun" in the NFA and GCA. By making
clear that these devices are subject to the restrictions that the NFA and GCA place on
machineguns, this rule reflects the public safety goals of those statutes. Indeed, the
NPRM stated that the Las Vegas tragedy made "individuals aware that these devices
exist-potentially including persons with criminal or terrorist intentions-and made their
potential to threaten public safety obvious." 83 FR at 13447. For further discussion of
benefits, see Part VI.A.
2. Unnecessary for Civilians to Own
Comments Received
Of the total supporting comments, at least 25,135 of the commenters opined that
bump-stock-type devices have no place in civil society and are unnecessary for ordinary

27

persons to own. One of the primary reasons thousands expressed support for the
regulation was their view that bump-stock-type devices have no legitimate uses for
hunting or sporting purposes, target shooting, or self-protection. Many of these
commenters emphasized that the devices cause a decrease in shooter accuracy, and
therefore are not useful for hunting and target shooting, and are inappropriate for use in
self or home defense. For example, one commenter rhetorically stated, "(W]hat law
abiding gun owner who is responsible for every bullet they shoot would want to reduce
their accuracy?" Some of these comm enters further asserted that because the devices
enable rapid but inaccurate fire, they pose a particular risk to large-scale public events,
such as the Las Vegas concert. Many commenters, including those identifying as former
or active military members, commented that only the military or law enforcement should
have access to bump-stock-type devices or that there was no need for civilians to have
access to them.
Department Response
The Department acknowledges supporters' comments on limiting the possession
of bump-stock-type devices to military or law enforcement. Such a limitation is
consistent with the Firearms Owners' Protection Act (FOPA), Pub. L. 99-308, 100 Stat.
449, which makes it unlawful for any person to transfer or possess a machinegun that was
not lawfully possessed before the effective date of the statute. FOPA made an exception
for governmental entities, allowing for the "transfer to or by, or possession by or under
the authority of, the United States or any department or agency thereof or a State, or a
department, agency, or political subdivision thereof." 18 U.S.C. 922(o)(2)(A). Congress
provided this exemption because it recognized the necessity for the military and law

28

enforcement to continue to use and possess these types of weapons. This final rule is
consistent with implementing the requirements of the NFA and GCA provisions that
regulate possession of machineguns.
3. Consistent with the Intent of the National Firearms Act
Comments Received
More than 27,000 of the supporting comments urged issuance of the final rule
because bump-stock-type devices and other similar conversion devices were meant to
circumvent the restrictions of the NFA and GCA, as bump-stock-type devices enable
shooters to transform their guns into automatic weapons. Some commenters asserted that
it is useless to have a law against automatic weapons yet allow manufacturers to legally
produce and sell an item with the sole purpose of turning a firearm into an automatic
weapon. Many of these commenters also stated that bump-stock-type devices violate the
spirit of the law and that this loophole should be closed by ATF as quickly as possible.
Further, at least I ,675 of the supporting comments stated that the proposed rule is
consistent with the purposes of the NFA and the intent of Congress. Specifically, these
commenters opined that the regulation "enforces machine gun laws that date back many
decades" and that "it will have the same dramatic benefit originally intended by those
foundational laws."
Department Response
The Department acknowledges supporters' comments that bump-stock-type
devices were meant to circumvent the restrictions of the NFA and GCA. Prior to this
rule, ATF issued classification letters that determined that some bump-stock-type devices
were not "machineguns" as defined by the NFA. Those decisions, however, did not

29

include extensive legal analysis, as described in Part III. Upon reexamining these
classifications, this final rule promulgates definitions for the terms "single function of the
trigger" and "automatically" as those terms are used in the statutory definition of
"machinegun." ATF believes these definitions represent the best interpretation of the
statute. Therefore, recognizing that a bump-stock-type device used with a semiautomatic
firearm enables a shooter to shoot automatically more than one shot by a single function
of the trigger, the purpose of this rule is to clarify that such devices are machineguns
under the NFA.
4 .. Constitutional Under the Second Amendment
Comments Received
More than 2,100 commenters in support of the rule argued that a rule prohibiting
possession of bump-stock-type devices does not conflict with the Second Amendment.
Many opined that the Framers of the Constitution did not intend for these types of
devices, which can inflict mass carnage, to. be protected by the Second Amendment.
Commenters expressed the view that because persons living in the 18th century used
muskets capable of firing only one shot before requiring a long reloading process, our
forefathers would nol have wanted bump-stock-type devices to be readily available.
Other commenters, including those who declared themselves to be strong supporters of
the Second Amendment, stated that prohibiting bump-stock-type devices was consistent
with the Second Amendment.
Several comm enters noted language from the majority opinion in District of

Columbia v. Heller, 554 U.S. 570 (2008). There, the Supreme Court declared that the
Second Amendment protects an individual right to bear arms for traditional lawful

30

purposes such as self-defense and hunting. However, the Court also stated, "Like most
rights, the right secured by the Second Amendment is not unlimited. From Blackstone
through the 19th-century cases, commentators and courts routinely explained that the
right was not a right to keep and carry any weapon whatsoever in any manner whatsoever
and for whatever purpose." Id. at 626. Commenters further summarized the Court's
conclusions that limitations on the right to keep and carry arms are supported by the
historical tradition of prohibiting the carrying of"dangerous and unusual weapons." Id.
at 627. Commenters argued that the Supreme Court's Second Amendment decisions
support the proposed rule.
Department Response
The Department acknowledges supporters' concerns and agrees that regulation of
bump-stock-type devices is permissible under the Second Amendment. For discussion of
the Department's position on the constitutionality of this final rule under the Second
Amendment, see Part IV.D. l.a.
5. Absence of Congressional Action
Comments Received
Over 1,500 comments in support urged action on this final rule by invoking
popular support for responsible gun limitations. Many of these commenters stated this
measure would be a sensible first step for gun safety and that ATF should act where
Congress has not acted. One gun safety organization noted that while congressional
measures have stalled, ATF is doing what it can to refine rules. At least 1,300
commenters indicated that ATF should choose saving children and the public welfare
over the interests of the gun industry and pro-gun organizations, naming in particular the

31

NRA. One commenter wrote, "It's time we quit cow-towing [sic] to the NRA and
considered all the rest of us and our children especially. Being afraid to go to school is
unAmerican which is what the insistence by the NRA on no gun control is unAmerican." Many supporting commenters echoed these sentiments.
Department Response
In light of the legal analysis of the term "machinegun" set forth above, the
Department agrees with commenters that it is necessary to clarify that the term
"machinegun" includes bump-stock-type devices. Congress granted the Attorney
General authority to issue rules to administer the NFA and GCA, and the Attorney
General has delegated to ATF the authority to administer and enforce these statutes and
to implement the related regulations accordingly. The Department and ATF have
initiated this rulemaking to clarify the regulatory interpretation of the NFA and GCA.
C. Comments Generally Opposing the Rule

Comments Received
A total of 66,182 comments were received that opposed the rule. Approximately
40,806 of those comments were form submissions by the National Association for Gun
Rights (NAGR) on behalf of its members, with 25,874 submitted on paper petitions and
14,932 submitted by facsimile. The remaining 25,376 opposing comments were
individually submitted. Many of the commenters identified as lawyers, judges, industry
groups, or members of law enforcement or the military. There were several commenters
who stated they did not own or had no interest in owning a bump-stock-type device but
still objected to the rule on various grounds, including that it is unconstitutional and only
punishes law-abiding owners of bump-stock-type devices. Of the 25,376 comments

32

individually submitted, 12,636 used one of three form letters; the remaining 12,740 were
unique comments. A majority of these commenters raised specific, detailed objections to
the agency's proposal and the premise upon which the regulation is based, whereas
several hundred of the unique comments were limited to a few sentences opposing the
regulation without further detail. For example, these types of comments simply declared,
in essence, (I) no ban, or a ban is unnecessary; (2) individuals' Second Amendment
rights should not be infringed; or (3) I oppose any additional gun regulations.
Department Response
The Department acknowledges the commenters' objections to the proposed rule
but disagrees with assertions that the rule infringes on the constitutional right to keep and
bear arms and punishes law-abiding gun owners. The Department believes that bumpstock-type devices satisfy the definition of"machinegun" under the NFA and GCA and
that this final rule reflects the public safety goals of the NFA and GCA. The Department
thoroughly considered the various issues raised in opposition to the rule, which are
discussed below.
D. Spec/fie Issues Raised in Opposition to the Rule

1. Constitutional and Statutory Arguments
a. Violates the Second Amendment
Comments Received
A total of 16,051 of the commenters opposed the rule on the ground that it
violates the Second Amendment. Of these, 11,753 used a form letter stating that the
"regulations dismiss Second Amendment protections, by appealing to the Heller court
decision. But the Constitution trumps the Supreme Court -- so when the Second

33

Amendment says the right to keep and bear arms shall not be infringed, any limitation of
the right for law-abiding citizens should be treated as unconstitutional[.]" Many
commenters, including those identifying as former or active law enforcement or military
members, echoed these sentiments by declaring that the proposed rule infringes on the
rights oflaw-abiding gun owners, and that the phrasing of the Second Amendment"shall not be infringed"-strictly limits or negates the ability of Government to impose
any regulations on firearms. One commenter, for instance, argued that the Second
Amendment's reference to a "well-regulated Militia" includes unorganized militia, which

•
the commenter interpreted to mean any person who owns a gun. Because the military has
automatic weapons, the commenter reasoned that the people-as the unorganized
militia-are likewise constitutionally entitled to access such weapons.
Numerous commenters cited the Supreme Court's decision in Heller, 554 U.S.
570, which declared that the Second Amendment protects an individual right to bear
arms. Commenters also referred to the Supreme Court's decision in Caetano v.
Massachusetts, 136 S. Ct. 1027 (2016) (per curiam), stating that this decision makes clear

that weapons in "common use" cannot be banned. One commenter pointed out that if
bump-stock-type devices are now machineguns, then there are an additional 519,927
machineguns that are currently owned typically by law-abiding citizens for lawful
purposes. This amount, the commenter argued, surpasses the 200,000 stun guns found to
trigger a "common use" analysis in Caetano, meaning that such items cannot be banned
unless they are both dangerous and unusual. Further, commenters said that Caetano
stands for the proposition that any advancement in weaponry is still protected under the
Second Amendment. They argued that the Court declared "the Second Amendment

34

extends, prima facie, to all instruments that constitute bearable arms, even those that were
not in existence at the time of the founding" and that its protection is not limited to only
those weapons useful in warfare. Id. at I 027 (internal quotation marks omitted).
Department Response
The Department does not believe that the proposed regulation violates the Second
Amendment. The Supreme Court has indicated, and several lower courts have squarely
held, that the Second Amendment does not protect a right to possess a machinegun.
Because bump-stock-type devices are machinegun conversion devices that qualify as
"machineguns" under Federal law, see supra Part III.E., prohibiting them does not violate
the Second Amendment.
"Like most rights, the right secured by the Second Amendment is not unlimited."
Heller, 554 U.S. at 626; accord McDonald v. City of Chi., 561 U.S. 742, 786 (2010). In
Heller, for example, the Supreme Court recognized an "important limitation on the right
to keep and carry arms": "the historical tradition of prohibiting the carrying of'dangerous
and unusual weapons."' 554 U.S. at 627. More specifically, and importantly for
purposes of this rulemaking, the Court explicitly described machine guns as the kind of
dangerous and unusual weapons not protected by the Second Amendment. In the course
of explaining the Court's holding in United States v. Miller, 307 U.S. 174 (1939)
(upholding Federal prohibition of short-barreled shotguns), the Court noted that a portion
of Miller could be "(r]ead in isolation" to "mean that only those weapons useful in
warfare are protected" by the Second Amendment. Heller, 554 U.S. at 624. But "[t]hat
would be a startling reading of the opinion," the Court continued, "since it would mean
that the National Firearms Act's restrictions on machineguns ... might be

35

unconstitutional, machineguns being useful in warfare in 1939." Id Heller thus made
clear that machineguns, like short-barreled shotguns, are "weapons not typically
possessed by law-abiding citizens for lawful purposes," and thus fall outside the scope of
the Second Amendment as historically understood. Id at 625; see also id at 627
(accepting that M-16 rifles are dangerous and unusual weapons that may be banned).
In the decade since Heller was decided, lower courts have consistently upheld
prohibitions ofmachineguns. Hollis v. Lynch, 827 F.3d 436,451 (5th Cir. 2016)
(upholding Federal statute banning possession ofmachineguns because they are
"dangerous and unusual and therefore not in common use"); United States ,v. Henry, 688
F.3d 637,640 (9th Cir. 2012); Hamblen v. United States, 591 F.3d 471,472,474 (6th Cir.
2009); United States v. Fincher, 538 F.3d 868, 874 (8th Cir. 2008); see also Heller v.
Dist. o_[Columbia (Heller JI), 670 F.3d 1244, 1270 (D.C. Cir.2011) (Kavanaugh, J.,

dissenting) ("fully automatic weapons, also known as machine guns, have traditionally
been banned and may continue to be banned after Heller"); United States v. Marzzarella,
614 F.3d 85, 94-95 (3d Cir. 2010) ("the Supreme Court has made clear the Second
Amendment does not protect" machineguns and short-barreled shotguns).
This body of precedent, in addition to Heller, strongly supports the Department's
view that a bump-stock-type device, as a machinegun conversion device qualifying as a
"machinegun" under Federal law, is not protected by the Second Amendment. What
makes a machinegun a "dangerous and unusual weapon" unprotected by the Second
Amendment is its capacity to fire automatically, see, e.g., Henry, 688 F.3d at 640, which
"puts the machine gun on a different plane" than other firearms, United States v. Kirk,
105 F.3d 997, 1002 (5th Cir. 1997) (en bane) (opinion of Higginbotham, J.). Bump-

36

stock-type devices qualify as machineguns, as discussed above, because they enable an
otherwise semiautomatic firearm to fire automatically. Since they bear the same key
characteristic that makes traditional machineguns "dangerous and unusual," bump-stocktype devices are unprotected by the Second Amendment for the same reason.
This conclusion is fully consistent with Caetano v. Massachusetts, 136 S. Ct.
1027. In Caetano, the Supreme Judicial Court of Massachusetts had upheld a State
prohibition of stun guns on the grounds that stun guns were not in common use when the
Second Amendment was ratified and are not useful in military operations. See id at
1027-28. The Supreme Court summarily vacated this ruling because neither of the State
court's premises was valid: Heller made a "clear statement that the Second Amendment
'extends ... to ... arms ... that were not in existence at the time of the founding,"' and
"rejected the proposition 'that only those weapons useful in warfare are protected."' Id
at 1028 (quoting Heller, 554 U.S. at 582, 624-25). The Department's conclusion in this
rulemaking that the Second Amendment does not protect bump-stock-type devices rests
on neither of the propositions rejected by Caetano. As discussed above, the Department
believes that this rule comports with the Second Amendment because bump-stock-type
devices qualify as machineguns, which are not constitutionally protected-not because
bump-stock-type devices did not exist in 1791 or are not useful in warfare. Moreover,
although the Supreme Judicial Court of Massachusetts ultimately held that stun guns are
protected under the Second Amendment in Ramirez v. Commonwealth, 94 N.E.3d 809
(2018), the court did not suggest that more dangerous weapons, like machineguns and
machinegun conversion devices, are also protected. The court acknowledged that a stun

37

gun is even "less lethal than a handgun," id at 817, the weapon that the Supreme Court
expressly held to be protected in Heller, 554 U.S. at 635.
b. Violates the Fifth Amendment
i. Violates Due Process Clause - Entrapment

Comments Received
At least one commenter, a gun-rights nonprofit organization, argued that ATF's
change of position constitutes unconstitutional entrapment. It maintained that ATF's past
classification letters, which informed the public that certain bump-stock-type devices
were not subject to the NFA or GCA, invited the public to rely on its consistent decisions
and acquire such items. With the sudden change of position, the organization asserted,
ATF seeks to entrap citizens who have simply purchased a federally approved firearm
accessory. Citing Sherman v. United States, 356 U.S. 367, 376 (1958), the organization
argued that it is "unconstitutional for the Government to beguile an individual 'into
committing crimes which he otherwise would not have attempted."' Further, it argued
that at least some 520,000 law-abiding citizens could be criminals who could face up to
ten years' imprisonment "without even receiving individual notice of ATF's reversal of
position."
Department Response
The Department disagrees that the final rule amounts to entrapment. Entrapment
is a complete defense to a criminal charge on the theory that "Government agents may
not originate a criminal design, implant in an innocent person's mind the disposition to
commit a criminal act, and then induce commission of the crime so that the Government
may prosecute." Jacobson v. United States, 503 U.S. 540, 548 (1992). A valid

38

entrapment defense has two related elements: (I) government inducement of the crime,
and (2) the defendant's lack of predisposition to engage in the criminal conduct.

Mathews v. United States, 485 U.S. 58, 63 (1988).
As described above, ATF has now concluded that it misclassified some bumpstock-type devices and therefore initiated this rulemaking pursuant to the requirements of
the APA. An agency is entitled to correct its mistakes. See Williams Gas Processing-

Gulf Coast Co. v. FERC, 475 F.3d 319,326 (D.C. Cir. 2006) ("[I]t is well understood that
[a]n agency is free to discard precedents or practices it no longer believes correct. Indeed
we expect that an[ ] agency may well change its past practices with advances in
knowledge in its given field or as its relevant experience and expertise expands. If an
agency decides to change course, however, we require it to supply a reasoned analysis
indicating that prior policies and standards are being deliberately changed, not casually
ignored."). This rulemaking procedure is specifically designed to notify the public about
changes in ATF's interpretation of the NFA and GCA and to help the public avoid the
unlawful possession of a machinegun. It is important to note that at no time did A TF
induce any member of the public to commit a crime. The ANPRM, NPRM, and this final
rule have followed the statutory process for ensuring that the public is aware of the
correct classification of bump-stock-type devices under the law, and that continued
possession of such devices is prohibited. Anyone currently in possession of a bumpstock-type device is not acting unlawfully unless they fail to relinquish or destroy their
device after the effective date of this regulation.

39

ii. Violates Takings Clause and Due Process Clause
Comments Received
Over 1,200 commenters objected that the rule will violate the Takings Clause of
the Fifth Amendment, which provides "private property [shall not] be taken for public
use, without just compensation." Some commenters said that the Takings Clause requires
the Government to compensate manufacturers for their present and future loss of
revenues. Many other commenters further indicated that the Government would owe
compensation to owners of bump-stock-type devices because the Government would
effectively be taking personal property for public safety, which is a form of public use.
They cited Horne v. Department ofAgriculture, 135 S. Ct. 2419, 2428 (2015), for the
proposition that mandating relinquishment of property constitutes a physical taking and
requires compensation. One commenter contrasted this rule with the regulation at issue
in Andrus v. Allard, 444 U.S. 51 (1979), which prohibited the commercial sale of eagle
body parts gathered before 1940. The commenter observed that the Supreme Court held
the eagle-part regulation was not a regulatory taking because it did not compel the
surrender of the body parts and imposed no physical invasion or restraint upon them. Id
at 65-66. By contrast, the commenter noted, owners of bump-stock-type devices under
the regulation would be compelled to surrender their devices or face criminal penalties.
Several commenters also stated that "for this regulation to be Constitutional each
and every owner of a bump stock, or other devices captured in this regulation not yet
named, must be given their day in court to present evidence and an argument as to why
their property shouldn't be taken without compensation at a minimum."

40

Many commenters separately opined that the Department did not include the cost
of compensation in its cost-benefit analysis and several proposed estimated costs of such
compensation. Those comments are addressed in Part IV.I.I.
Department Response
The Department does not agree that classifying bump-stock-type devices as
machineguns results in the unlawful taking of property "for public use, without just
compensation." U.S. Const. amend. V. It is well established that "the nature of the
[government's] action is critical in takings analysis." Keystone Bituminous Coal Ass'n v.

DeBenedictis, 480 U.S. 470,488 (1987); accord Penn Cent. Transp. Co. v. City ofNew
York, 438 U.S. I 04, 124 (1978) ("character of the government action" has "particular
significance"). The Department's action here, classifying bump-stock-type devices as
machineguns subject to the NFA and GCA, does not have the nature of a taking.
A restriction on "contraband or noxious goods" and dangerous articles by the
government to protect public safety and welfare "has not been regarded as a taking for
public use for which compensation must be paid." Acadia Tech., Inc. v. United States,
458 F.3d 1327, 1332 (Fed. Cir. 2006); see also United States v. $7,990.00 in US.

Currency, 170 F.3d 843, 845 (8th Cir. 1999) ("forfeiture of contraband is an exercise of
the government's police power" and does not qualify as a taking). 7 The Takings Clause
was "not intended as a limitation of the exercise of those police powers which are
necessary to the tranquility of every well-ordered community, nor of that general power

7

In the takings context, the use of the term "police power" in connection with Federal regulation does not
posit the existence of a "plenary police power" at the Federal level. Cf United States v. Lopez, 514 U.S.
549, 566 (1995). Rather, it refers to "the power of the federal government to engage," pursuant to one or
more of its enumerated powers, "in activities not unlike those engaged in by the states under their inherent
sovereign powers" to protect the public welfare. Fla. Rock Indus., Inc. v. United States, 18 F.3d !560,
1568 n.17 (Fed. Cir. 1994).

41

over private property which is necessary for the orderly existence of all governments. It
has always been held that the legislature may make police regulations, although they may
interfere with the full enjoyment of private property, and though no compensation is
given." Chi., Burlington & Quincy Ry. Co. v. Illinois, 200 U.S. 561,594 (1906) (internal
quotation marks omitted); see, e.g., Holliday Amusement Co. of Charleston v. South
Carolina, 493 F.3d 404, 409-1 I (4th Cir. 2007) (upholding State prohibition of video

gaming machines without compensation).
In Mug/er v. Kansas, 123 U.S. 623, 668-69 (1887), for example, the Supreme
Court rejected a distiller's argument that a State constitutional amendment prohibiting the
manufacture and sale of intoxicating liquors was an unconstitutional taking. The Court
explained that the government's power to prohibit the "use by individuals of their
property, as will be prejudicial to the health, the morals, or the safety of the public, is not,
and, consistently with the existence and safety of organized society, cannot be, burdened
with the condition that the state must compensate such individual owners for pecuniary
losses they may sustain, by reason of their not being permitted, by a noxious use of their
property, to inflict injury upon the community." Id at 669. Similarly, the Supreme Court
held in Miller v. Schoene, 276 U.S. 272, 280 (I 928), that Virginia was not required to
compensate owners of red cedar trees for the value of trees that the State had ordered
destroyed to prevent the spread of a disease that threatened local apple orchards.
"[W]here the public interest is involved," the Court observed, "preferment of that interest
over the property interest of the individual, to the extent even of its destruction, is one of
the distinguishing characteristics of every exercise of the police power which affects
property." Id at 279-80. Lower courts have likewise deemed the Takings Clause

42

inapplicable to governmental regulation of dangerous personal property for public-safety
reasons. See, e.g., Garcia v. Vil!. of Tijeras, 767 P.2d 355 (N.M. Ct. App. 1988) (village
ordinance banning possession of pit bulls was "a proper exercise of the Village's police
power" and not a taking).
Consistent with these cases, courts have rejected arguments that restrictions on the
possession of dangerous firearms, like machineguns, are takings requiring just
compensation. In Akins v. United States, 82 Fed. Cl. 619 (2008), for example, the Court
of Federal Claims held that ATF's ultimate classification of the Akins Accelerator as a
machinegun, see supra Part III, was not a taking. The court reasoned that ATF had acted
"pursuant to the police power conferred on it by Congress" rather than by exercising
eminent domain, and that the plaintiff lacked a sufficient property interest because he had
"voluntarily entered an area subject to pervasive federal regulation-the manufacture and
sale of firearms." Id. at 623-24; see also Bennis v. Michigan, 516 U.S. 442,452 (1996)
("The government may not be required to compensate an owner for property which it has
already lawfully acquired under the exercise of governmental authority other than the
power of eminent domain."). Similar reasoning led the District of Columbia Court of
Appeals lo hold that a D.C. law prohibiting machineguns and requiring their disposal or
removal was not a taking. Fesjian v. Jefferson, 399 A.2d 861, 865-66 (1979). These
precedents support the Department's conclusion that the prohibition of bump-stock-type
devices as machineguns does not have the character of a compensable taking within the
meaning of the Fifth Amendment.
The Department acknowledges that a panel of the U.S. Court of Appeals for the
Ninth Circuit recently upheld a preliminary injunction against the Attorney General of

43

California that relied in part on the Takings Clause in prohibiting the State from
implementing restrictions on firearm magazines that hold more than 10 rounds. Duncan
v. Becerra, No. 17-56081, 2018 WL 3433828 (9th Cir. July 17, 2018). The Ninth
Circuit's order essentially adopted the district court's analysis of the Takings Clause
question. See id. at *3. The district court's reasoning on the takings question was closely
intertwined with the Second Amendment inquiry, and rested on the conclusion that it was
"dubious" for California to deem large-capacity magazines a public nuisance given the
Supreme Court's observation that "[g]uns in general are not deleterious devices or
products or obnoxious waste materials." Duncan v. Becerra, 265 F. Supp. 3d 1106, 1137
(S.D. Cal. 2017) (internal quotation marks omitted) (quoting Staples v. United States, 511
U.S. 600,610 (1994)). But regulation of bump-stock-type devices is fundamentally
distinguishable from California's prohibition on possessing such magazines. As
discussed, and as Heller indicates, dangerous and unusual weapons are not entitled to
Second Amendment protection, and may indeed qualify as deleterious devices or
contraband. Other district courts have followed the reasoning of cases like Akins and
Fesjian and rejected takings challenges to California firearm restrictions. See Rupp v.
Becerra, 2018 WL 2138452, at *8-9 (C.D. Cal. May 9, 2018) (restrictions on "assault
weapons"); Wiese v. Becerra, 263 F. Supp. 3d 986, 995 (E.D. Cal. 2017) (prohibition of
large-capacity gun magazines).
Finally, the Department does not agree that each owner of a bump-stock-type
device has a due-process right to a hearing in connection with the promulgation of this
rule. The rule clarifies the scope of the NFA and GCA, general legislative enactments,
with respect to bump-stock-type devices. "Official action that is legislative in nature is

44

not subject to the notice and hearing requirements of the due process clause." Interport
Pilots Agency, Inc. v. Sammis, 14 F.3d 133, 142 (2d Cir. 1994); see also, e.g., Bi-Metallic
Inv. Co. v. State Bd. of Equalization, 239 U.S. 441,445 (1915) ("General statutes within
the state power are passed that affect the person or property of individuals, sometimes to
the point of ruin, without giving them a chance to be heard."). Furthermore, the
Department's conclusion that bump-stock-type devices are machineguns under the NFA
and GCA means that owners lack a cognizable property interest in these devices for dueprocess purposes. As the Fifth Circuit held in Cooper v. City of Greenwood, firearms
covered by the NFA are "contraband per se," and "[c]ourts will not entertain a claim
contesting the confiscation of contraband per se because one cannot have a property right
in that which is not subject to legal possession." 904 F.2d 302, 305 (1990).
c. Violates Ex Post Facto Clause and Bill of Attainder Clause
Comments Received
Numerous commenters asserted that the proposed rule would violate article I,
section 9, clause 3 of the Constitution, which states, "No Bill of Attainder or ex post facto
Law shall be passed." One gun-rights nonprofit organization, quoting United States v.
0 'Neal, 180 F.3d 115, 122 (4th Cir. 1999), stated that even though this is a regulatory

action, the "sanction or disability it imposes is 'so punitive in fact' that the law 'may not
legitimately be viewed as civil in nature."'
Another commenter, the Maryland Shall Issue organization, argued that ATF's
reliance on 18 U.S.C. 922(0) creates an impermissible ex post facto law because current
owners and manufacturers of bump-stock-type devices "became felons as of the date and
time they took possession of a bump stock, even though such possession and manufacture

45

was then expressly permitted by prior ATF interpretations." The commenter cited Calder
v. Bull, 3 U.S. (3 Dall.) 386,390 (1798), and Peugh v. United States, 569 U.S. 530
(2013), to support its arguments. It argued that the ex post facto issue can be avoided by
holding that the exemption in 18 U.S.C. 922(o)(2)(A) applies where bump-stock-type
devices are possessed under "the authority" of prior ATF rulings. Furthermore, the
commenter, citing Bowen v. Georgetown University Hospital, 488 U.S. 204,208 (1988),
stated that the Supreme Court has held that an agency cannot engage in retroactive
rulemaking without specific congressional authorization. Relying on Fernandez-Vargas
v. Gonzales, 548 U.S. 30, 36 (2006), the commenter stated there is no question that the
proposed rule has a retroactive effect because the rule would "affect" existing rights and
impose new liabilities on the past and continued possession of bump-stock-type devices.
At least one commenter argued the rule is an unconstitutional bill of attainder
because the rule restricts particular brands of stocks, per the Department's definition,
while not at the same time restricting all brands of stocks. Similarly, another commenter
stated the regulation appears punitive in nature, and abusively narrow in targeting Slide
Fire, a seller of bump-stock-type devices that has already announced the close of its
business.
Department Response
The Department disagrees that the proposed rule violates the Ex Post Facto or Bill
of Attainder Clauses. The rule would criminalize only future conduct, not past
possession of bump-stock-type devices that ceases by the effective date of this rule. In
Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), the Supreme Court set out four types oflaws
that violate the Ex Post Facto Clause:

46

1st. Every law that makes an action, done before the passing of the law,
and which was innocent when done, criminal; and punishes such action.
2nd. Every law that aggravates a crime, or makes it greater than it was,
when committed. 3rd. Every law that changes the punishment, and inflicts
a greater punishment, than the Jaw annexed to the crime, when committed.
4th. Every Jaw that alters the legal rules of evidence, and receives Jess, or
different, testimony, than the law required at the time of the commission
of the offence, in order to convict the offender.
Id. at 390. Citing Calder, the Supreme Court has explained that "[t]o fall within the ex
post facto prohibition, a law must be retrospective-that is, it must apply to events
occurring before its enactment-·and it must disadvantage the offender affected by it by

altering the definition of criminal conduct or increasing the punishment for the crime."
Lynce v. Mathis, 519 U.S. 433,441 (1997) (emphasis added; citations and internal

quotation marks omitted). The Federal courts have thus been careful to distinguish
statutes and regulations that violate the Ex Post Facto Clause from those that criminalize
only future conduct and are therefore not "retrospective," including in the firearms
possession context. For example, following passage of the Lautenberg Amendment (18
U.S.C. 922(g)(9)), which made it unlawful for persons convicted of a misdemeanor crime
of domestic violence to possess a firearm, several defendants argued that the law violated
the Ex Post Facto Clause. One defendant argued that he had a prior conviction for a
misdemeanor crime of domestic violence, but lawfully possessed a firearm before 18
U.S.C. 922(g)(9) became law. United States v. Mitchell, 209 F.3d 319 (4th Cir. 2000).
The defendant argued that, as applied to him, the statute violated the Ex Post Facto
Clause because the new law penalized him for his previous domestic violence conviction.
However, the Fourth Circuit disagreed, noting that "[i]t is immaterial that Mitchell's
firearm purchase and domestic violence conviction occurred prior to § 922(g)(9)'s
enactment because the conduct prohibited by § 922(g)(9) is the possession of a firearm."
47

Id at 322; see also United States v. Pfeifer, 371 F.3d 430, 436-37 (8th Cir. 2004); United
States v. Meade, 986 F. Supp. 66, 69 (D. Mass. 1997), qff'd, I 75 F.2d 215 (1st Cir. I 999);
United States v. Brady, 26 F.3d 282, 290-91 (2d Cir. 1994); United States v. Gillies, 851
F.2d 492, 495-96 (1st Cir. 1988) (Breyer, J.); United States v. D'Angelo, 819 F.2d 1062,
1065-66 (I I th Cir. 1987).
This rule brings clarity to the meaning of"machinegun," and makes clear that
individuals are subject to criminal liability only for possessing bump-stock-type devices

qfier the effective date of regulation, not for possession before that date. No action taken
before the effective date of the regulation is affected under the rule. Although regulating
past possession of a firearm may implicate the Ex Post Facto Clause, regulating the
continued or future possession of a firearm that is already possessed does not. See

Benedetto v. Sessions, No. CCB-17-0058; 2017 WL 4310089, at *5 (D. Md. Sept. 27,
2017) ("Whether a gun was purchased before the challenged law was enacted ... is
immaterial to whether the challenged law regulates conduct that occurred before or after
its enactment."); see also Samuels v. McCurdy, 267 U.S. 188, 193 (1925) (rejecting Ex
Post Facto Clause challenge to statute that prohibited the post-enactment possession of
intoxicating liquor, even when the liquor was lawfully acquired before the statute's
enactment). For this reason, the Department disagrees with commenters' assertions that
the rule violates the Ex Post Facto Clause.
Relatedly, the Department also disagrees with the view that 18 U.S.C.
922(o)(2)(A) provides the authority to permit continued possession of bump-stock-type
devices "under the authority" of prior ATF rulings. Section 922( o)(2)(A) is inapplicable
because, among other reasons, ATF's letter rulings regarding bump-stock-type devices

48

did not purpo1t to authorize the possession of devices qualifying as machineguns under
section 922(0)(!); instead, ATF advised individuals that certain devices did not qualify as
machineguns in the first place, a position that ATF has now reconsidered. Furthermore,
section 922(o )(2)(A) does not empower ATF to freely grant exemptions from section
922's general prohibition ofmachineguns.
The Department also disagrees that the proposed rule c6nstitutes a bill of
attainder. The Supreme Court has highlighted the fact that the Bill of Attainder Clause
applies only to Congress, noting that "[t]he distinguishing feature of a bill of attainder is
the substitution of a legislative for a judicial determination of guilt." De Veau v.
Braisted, 363 U.S. 144, 160 (1960) (emphasis added). The Court has also described a bill
of attainder as "a Jaw that legislatively determines guilt and inflicts punishment upon an
identifiable individual without provision of the protections of a judicial trial." Nixon v.
Adm 'r of Gen. Servs., 433 U.S. 425, 468 (1977) (emphasis added). Accordingly, the Bill
of Attainder Clause does not apply "to regulations promulgated by an executive agency."
Paradissiotis v. Rubin, 171 F.3d 983, 988-89 (5th Cir. 1999) (citing Walmer v. US. Dep't
of D~fense, 52 F.3d 851, 855 (I 0th Cir. 1995) ("The bulk of authority suggests that the
conslilulional prohibition against bills of attainder applies to legislative acts, not to
regulatory actions of administrative agencies.")); see also Korte v. Office of Personnel
Mgmt, 797 F.2d 967,972 (Fed. Cir. 1986); Marshall v. Sawyer, 365 F.2d 105, 111 (9th
Cir. 1966). Even if the proposed rule were subject to the Bill of Attainder Clause, it
would pass constitutional muster. The fact that Slide Fire announced the close of its
business does not make this rule a bill of attainder; that company is not being singled out,
as the proposed rule applies to all similar devices. Further, the regulation of all

49

I

.

I

machineguns of this type is not a "punishment" as is required for an enactment to be
unlawful bill of attainder. See Nixon, 433 U.S. at 473.
d. Violates Fourth Amendment
Comments Received
Many commenters also raised objections on grounds that the proposed rule
violates the Fourth Amendment's guarantee against unreasonable searches and seizures.
Commenters believed that because bump-stock-type devices essentially would become
contraband under the rule, "mandating [their] surrender to authorities would violate the
4th Amendment protection from seizure without due process."
Department Response
Although commenters cite the Fourth Amendment, it is unclear how a "search" or
"seizure" would result from this rule. The Department is unaware of any precedent
supporting the view that a general regulatory prohibition of possession of certain
contraband can violate the Fourth Amendment. A seizure in "[v ]iolation of the Fourth
Amendment requires an intentional acquisition of physical control," Brower v. Cty. of

Inyo, 489 U.S. 593, 596 (1989), and the final rule makes clear that current possessors of
bump-stock-type devices are not required to smrnnder the devices to the authorities.
Instead, current possessors may lawfully dispose of their devices in other ways, as
discussed below in Part IV.D.7.
e. Violates Ninth and Tenth Amendments
Comments Received
Various commenters opposed to the rule stated that it would violate the Ninth and
Tenth Amendments of the Constitution. The Ninth Amendment provides: "The

50

enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." The Tenth Amendment provides: "The powers
not delegated to the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people." One commenter said, "The
BATF is another agency whose existence violates the 10th Amendment." Another
commenter argued, "as an accessory, the federal government cannot ban [bump-stocktype devices], because only the states can ban them." A handful of other commenters .
stated that the rule violates States' rights under the Tenth Amendment because it violates
the "right to keep and bear arms" provisions of 44 State constitutions.
Department Response
The Department disagrees that the proposed rule violates the commenters' rights
under the Ninth Amendment. The Ninth Amendment "does not confer substantive rights
in addition to those conferred by other portions of our governing law. The Ninth
Amendment 'was added to the Bill of Rights to ensure that the maxim expressio unius est
exclusio alterius would not be used at a later time to deny fundamental rights merely
because they were not specifically enumerated in the Constitution."' Gibson v.
Matthews, 926 F.2d 532,537 (6th Cir. 1991) (citing Charles v. Brown, 495 F. Supp. 862,
863-64 (N.D. Ala. 1980)). Federal "circuit courts across the country have consistently
held that the Ninth Amendment does not impinge upon Congress's authority to restrict
firearm ownership." United States v. Finnell, 256 F. Supp. 2d 493,498 (E.D. Va. 2003).
The Department also disagrees that the rule violates the Tenth Amendment.
Commenters seemingly argued that the powers exercised by the Department in issuing
the rule were "powers not delegated to the United States by the Constitution, nor

51

prohibited by it to the States." However, Federal courts have long held that the NFA,
GCA, and implementing regulations do not violate the Tenth Amendment. The NFA
does not "usurp[] police power reserved to the States." United States v. Miller, 307 U.S.
174, 176 (1939). Further, "[b ]ecause § 922(0) was a proper exercise of Congress's
enumerated authority under the Commerce Clause, and because it does not compel, let
alone commandeer, the states to do anything, the statute does not violate the Tenth
Amendment." United States v. Kenney, 91 F.3d 884, 891 (7th Cir. 1996).
f. Lack of Statutory Authority
Comments Received
A total of 47,863 commenters, most of whom sent form submissions opposed to
the proposed rule, argued that ATF lacks statutory authority to regulate bump-stock-type
devices. Many commenters said that ATF, by its own admission, repeatedly stated it
could not regulate such devices. Commenters generally expressed the view that because
bump-stock-type devices are not firearms, ATF has no authority under the NFA or GCA
to regulate them. Some commenters contended that 6 U.S.C. 531 gives ATF only narrow
statutory authority and does not provide ATF general authority to regulate the safety of
firearms, accessories, or parts.
In addition, numerous commenters argued that, as the term "machinegun" is
already clearly defined in the NFA, only Congress can make changes to the definition
and regulate bump-stock-type devices. Furthermore, commenters stated that the agency's
interpretation of the term "machinegun" would not be entitled to deference under

Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

52

Department Response
The Attorney General is responsible for enforcing the NFA, as amended, and the
GCA, as amended. This includes the authority to promulgate regulations necessary to
enforce the provisions of these statutes. See 18 U.S.C. 926(a); 26 U.S.C. 7801(a)(2)(A),
7805(a). The statutory provision cited by some commenters, 6 U.S.C. 531, is the
provision of the Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, that
transferred the powers the Secretary of the Treasury had with respect to ATF to the
Attorney General when ATF was transferred to the Department of Justice. Accordingly,
the Attorney General is now responsible for enforcing the NFA and GCA, and he has
delegated the responsibility for administering and enforcing the NFA and GCA to the
Director of ATF, subject to the direction of the Attorney General and the Deputy
Attorney General. See 28 CFR 0.130(a)(l)-(2).
"Because § 926 authorizes the [Attorney General] to promulgate those regulations
which are 'necessary,' it almost inevitably confers some measure of discretion to
determine what regulations are in fact 'necessary."' Nat'! Rifle Ass'n v. Brady, 914 F.2d
475,479 (4th Cir. 1990). In the original GCA implementing regulations, ATF provided
regulatory definitions of the terms that Congress did not define in the statute. 33 FR
18555 (Dec. 14, 1968). Since 1968, ATF has occasionally added definitions to the
implementing regulations. See, e.g., 63 FR 35520 (June 30, 1998). Similarly, 26 U.S.C.
7805(a) states that "the [Attorney General] shall prescribe all needful rules and
regulations for the enforcement of this title." As is the case with the GCA, ATF has
provided regulatory definitions for terms in the NF A that Congress did not define, such
as "frame or receiver" and "manual reloading." See, e.g., 81 FR 2658 (Jan. 15, 2016).

53

These definitions were necessary to explain and implement the statute, and do not
contradict the statute. Federal courts have recognized ATF's authority to classify devices
as "firearms" under Federal law. See, e.g., Demko v. United States, 44 Fed. Cl. 83, 93
(1999) (destructive device); Akins v. United States, 312 F. App'x 197 (11th Cir. 2009)
(per curiam) (machinegun).
This rule is based upon this authority. Further, A TF has provided technical and
legal reasons why bump-stock-type devices enable automatic fire by a single function of
the trigger, and thus qualify as machinegun conversion devices, not mere "accessories."
ATF has regularly classified items as machinegun "conversion devices" or "combinations
of parts," including auto sears (ATF Ruling 81-4) and the Akins Accelerator (ATF Ruling
2006-2).
The Department agrees that regulatory agencies may not promulgate rules that
conflict with statutes. However, the Department disagrees that the rule conflicts with the
statutes or is in contravention of administrative-law principles. The rule merely defines
terms used in the definition of "machinegun" that Congress did not-the terms
"automatically" and "single function of the trigger"-as part of implementing the
provisions of the NF A and GCA.
When a court is called upon to review an agency's construction of the statute it
administers, the court looks to the framework set forth in Chevron US.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). The first step of the
Chevron review is to ask "whether Congress has directly spoken to the precise question at
issue." Id at 842. "If the intent of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the unambiguously expressed intent of

54

Congress. If, however, the court determines Congress has not directly addressed the
precise question at issue .... the question for the court is whether the agency's answer is
based on a permissible construction of the statute." Id at 842-43 (footnote omitted).
The Department believes that this rule's interpretations of"automatically" and "single
function of the trigger" in the statutory definition of"machinegun" accord with the plain
meaning of those terms. Moreover, even if those terms are ambiguous, this rule rests on
a reasonable construction of them. Although Congress defined "machinegun" in the
NFA, 26 U.S.C. 5845(b), it did not further define the components of that definition. See,

e.g., United States v. One TRW, Model Ml4, 7.62 Caliber Rifle, 441 F.3d 416,419 (6th
Cir. 2006) (noting that the NFA does not define the phrases "designed to shoot" or "can
be readily restored" in the definition of "machinegun"). Congress thus implicitly left it to
the Department to define "automatically" and "single function of the trigger" in the event
those terms are ambiguous. See Chevron, 467 U.S. at 844. Courts have appropriately
recognized that the Department has the authority to interpret elements of the definition of
"machinegun" like "automatically" and "single function of the trigger." See York v.

Sec'y of Treasury, 774 F.2d 417, 419-20 (10th Cir. 1985); United States v. Dodson, 519
F. App'x 344, 348049 & n.4 (6th Cir. 2013); cf, e.g., Firearms Import/Export Roundtable

Trade Grp. v. Jones, 854 F. Supp. 2d 1, 18 (D.D.C. 2012) (upholding ATF's
interpretation of 18 U.S.C. § 925(d) to ban importation of certain firearm parts under

Chevron "step one"); Modern Muzzleloading, Inc. v. Magaw, 18 F. Supp. 2d 29, 35-36
(D.D.C. l 998) ("since the ATF's classification of[a firearm as not antique] 'amounts to
or involves its interpretation' of the GCA, a statute administered by the ATF, we review
that interpretation under the deferential standard announced in Chevron").

55

Second, the Department's construction of those terms is reasonable under
Chevron. As explained in more detail in Part III, the Department is clarifying its
regulatory definition of "automatically" to conform to how that word was understood and
used when the NFA was enacted in 1934. See Olofson, 563 F.3d at 658. And the
Department is reaffirming that a single pull of the trigger is a single function of the
trigger, consistent with the NFA's legislative history, ATF's previons determinations, and
judicial precedent. See, e.g., Akins, 312 F. App'x at 200. This rule is therefore lawful
under the NFA and GCA even if the operative statutory terms are ambiguous.
g. Violation of the Americans with Disabilities Act
Comments Received
A few commenters indicated that bump-stock-type devices are assistive devices
for people with nerve damage or a physical disability. A few comm enters further stated
that the regulation could be a violation of the Americans with Disabilities Act (ADA), 42
U.S.C. ch. 126. In particular, one commenter claimed that under the ADA, an individual
can establish coverage under the law by "showing that he or she has been subjected to an
action prohibited under the Act because of an actual or perceived physical [condition]
that is not transitory and minor." The commenter asserted that this regulation constitutes
such "an action" and would violate the civil rights of a diverse group of persons with
disabilities, including homeowners, veterans, target shooters, and hunters.
Department Response
The Department disagrees with commenters that the final rule would violate the
ADA. While the ADA applies to State and local governments, it does not apply to the
Executive Branch of the Federal Government. See 42 U.S.C. 12131(1) (defining "public

56

entity" as any State or local government; any department, agency, special purpose
district, or other instrumentality of a State or States or local government; and the National
Railroad Passenger Corporation, and any commuter authority). Accordingly, because
ATF is a Federal agency that is not subject to the ADA, the commenters' assertion that
ATF's regulation would violate the ADA is incorrect.
While not mentioned by commenters, ATF is covered by section 504 of the
Rehabilitation Act of 1973, which prohibits discrimination, solely by reason of disability,
in Federally conducted programs and activities. 29 U.S.C. 794(a) (stating that "[n]o
otherwise qualified individual with a disability ... shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of, or be subjected
to discrimination under ... any program or activity conducted by any Executive
agency"). As detailed above, the sole purpose of this rulemaking is to clarify that bumpstock-type devices satisfy the statutory definition of"machinegun," as defined by
Congress in the NFA and GCA. While a few commenters made general assertions that
bump-stock-type devices can be used as assistive devices for people with disabilities,
none submitted any specific information to suggest that this rule would cause qualified
individuals with disabilities, solely by reason of their disability, to be excluded from the
participation in, subjected to discrimination under, or denied the benefits of any program
or activity of ATF. Accordingly, there is nothing in the record to suggest that this rule
would raise concerns under the Rehabilitation Act.

57

2. Politically Motivated and Emotional Response
Comments Received
At least 41,954 commenters opposed to the rule, including the 40,806 comments
submitted through the NAGR petition, asserted that the proposed rule is a political or
knee-jerk response to a tragic incident. Many commenters suggested that the proposed
rule reflected political pressure and would be a hasty response that would not achieve real
benefits and could lead to confiscating all guns. A handful of commenters even asserted
they would support the elimination of A TF. Petitions submitted through NAGR portray
the rule as a response to "the anti-gun left ... so they can turn millions of commonly
owned firearms into 'illegal guns' with the stroke ofa pen." They cautioned that this rule
unfairly capitalizes on the misfortunes of others to push political agendas and that facts
should not be thrown aside. Another commenter said that this rule will be tainted
because from the beginning the President made clear he had no intention of instructing
the Department to abide by the public comments, having declared that bump-stock-type
devices "will soon be out" after the "mandated comment period" notwithstanding
possible congressional action.
Department Response
While the Las Vegas tragedy brought attention to bump-stock-type devices and
requests from Congress and nongovernmental organizations prompted ATF to review its
classification of bump-stock-type devices, the Department disagrees that this rulemaking
is an unreasoned reaction to recent events. As discussed in the NPRM, see Part III above,
ATF recognized that its prior classifications determining only some bump-stock-type
devices to be machineguns did not include extensive legal analysis of certain terms that

58

are significant to defining "machinegun" under the NFA and were not always consistent.
This final rule defines the terms "automatically" and "single function of the trigger" to
clarify the meaning ofmachinegun and to make clear that bump-stock-type devices are
machineguns under the meaning of the statute. The Department further notes that the
President specifically directed it to clarify the legal status of bump-stock-type devices
through the administrative "procedures the law prescribes," including notice and
comment. 83 FR 7949 (Feb. 23, 2018).
3. Not Used in Criminal Activity
Comments Received
Numerous commenters expressed that besides the shooting in Las Vegas, there is
no evidence that bump-stock-type devices have been used in the commission of crimes.
Several commenters stated that, pursuant to a Freedom oflnformation Act request, they
asked ATF and the Federal Bureau of Investigation (FBI) for any records on whether
bump-stock-type devices have been used in crimes and that they received no
confirmation affirming the existence of any such records. Moreover, some commenters
stated that ATF provided no evidence or justification that bump-stock-type devices will
be used more frequently in future crimes. They argued that if the agency cannot show
what materials it relied on to regulate bump-stock-type devices for purposes of public
safety, then the rulemaking is arbitrary and capricious under the APA. Commenters cited
judicial decisions such as Motor Vehicle Manufacturers Ass 'n v. State Farm Mutual
Automobile Insurance Co., 463 U.S. 29, 52 (1983), in which the Supreme Court held that

when an agency rescinds or changes its stance on a regulation, it must explain the

59

evidence underlying its decision and offer a rational connection between the facts found
and the choice made.
Many commenters also noted that there is still no confirmation or documentation,
despite requests, from Federal agencies confirming that bump-stock-type devices were
actually used in the Las Vegas incident, and that ATF has not issued a "Report of
Technical Examination" (A TF Form 3311.2) for any of the firearms used in the incident.
With questions remaining about the Las Vegas criminal investigation and doubts as to
whether bump-stock-type devices were actually used, commenters argued that A TF has
no basis to promulgate a regulation that, as A TF declared in the NPRM, "would affect the
criminal use of bump-stock-type devices in mass shootings, such as the Las Vegas
shooting incident." 83 FR at 13454.
These arguments were frequently raised alongside concerns that the cost-benefit
analysis did not address the fact that there would be few benefits to the rule given that
bump-stock-type devices have supposedly been used in only one crime. These concerns
are addressed in Part IV .I.5.
Department Response
The Department disagrees that ATF seeks to regulate bump-stock-type devices
merely because they were, or have the potential to be, used in crime. The NPRM stated
that the Las Vegas shooting made "individuals aware that these devices existpotentially including persons with criminal or terrorist intentions-and made their
potential to threaten public safety obvious." 83 FR at 13447. But the NRPM also
provided a detailed analysis explaining that bump-stock-type devices must be regulated

60

---------------------------·-·--·-~~---~--·-··

because they satisfy the statutory definition of"machinegun" as it is defined in the NFA
and GCA. Id at 13447-48.
Comm enters conflate the legal basis for ATF' s regulation of bump-stock-type
devices with the background information that was provided as context for the reason ATF
revisited its previous classifications. In the NPRM, ATF explained that the tragedy in
Las Vegas gave rise to requests from Congress and nongovernmental organizations that
ATF examine its past classifications and determine whether bump-stock-type devices
currently on the market constitute machineguns under the statutory definition. Id. at
13446. While part of the Department's mission is to enhance public safety, the impetus
for the change in classification was not, as commenters argued, that the device may
potentially pose a public safety threat but because, upon review, ATF believes that it
satisfies the statutory definition of"machinegun." This rule reflects the public safety
objectives of the NFA and GCA, but the materials and evidence of public safety
implications that commenters seek have no bearing on whether these devices are
appropriately considered machineguns based on the statutory definition.
In Motor Vehicle Manufacturers Ass 'n v. State Farm Mutual Automobile

Insurance Co., 463 U.S. 29 (1983), the Supreme Court wrote that an "agency must
examine the relevant data and articulate a satisfactory explanation for its action including
a 'rational connection between the facts found and the choice made."' Id. at 43 (quoting

Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, I 68 (1962)). However, that
case involved a Federal agency that rescinded a final rule-based on data and policy
choices-sho1tly after publication, arguing that that rule was no longer necessary for a
multitude of reasons, including that the costs outweighed the safety benefits. See id. at

61

38-39. The Supreme Cou1i recognized that any change requires a reasoned basis, noting
that "[i]f Congress established a presumption from which judicial review should start,
that presumption-contrary to petitioners' views-is not against safety regulation, but

against changes in current policy that are not justified by the rulemaking record." Id at
42. However, the revocation in that case involved a discretionary policy decision, and
did not depend solely upon statutory construction. The bump-stock-type device rule is
not a discretionary policy decision based upon a myriad of factors that the agency must
weigh, but is instead based only upon the functioning of the device and the application of
the relevant statutory definition. Therefore, the Department does not believe that this rule
conflicts with State Farm.
4. Will Not Enhance Public Safety
Comments Received
More than 1,100 commenters indicated that a regulation on bump-stock-type
devices would have no measurable effect on the current rate of crime or enhance public
safety. One commenter argued that the use of bump-stock-type devices by mass shooters
might actually save lives based on his experience that using the device can result in a rifle
jamming, misfee<ling, or misfiring, which would be the best time to disrupt a shooter.
Other commenters noted that bump-stock-type devices actually impede a shooter's ability
to fire accurately. Commenters stated that there is currently no empirical evidence that
further firearms regulations would reduce crime or safeguard people more effectively.
One commenter, for example, estimated that out of the tens of thousands of gun deaths
per year, most of which he stated are suicides, the proposed rule would only impact a
minute percentage, while another commenter opined that crime rate data from the FBI

62

show that areas with more firearms restrictions have more crime. A handful of
commenters pointed to Chicago as having some of the most stringent gun restrictions yet
continuing to have high rates of homicide and gun-related deaths that "surpass[] war
zones."

Many commenters opposed to the regulation maintained that neither this rule nor
any new gun laws will prevent criminals or people with malicious intent from proceeding
to commit crimes. Several voiced the opinion that people determined to kill many people
will find other means, such as cars, knives, toxic substances, homemade explosives, or
any other object. The problem, they argued, is not the object, but the person who controls
it-and that criminals will do whatever they can to accomplish unlawful ends. One
commenter, identifying as a law enforcement officer, wrote that he frequently encounters
prohibited possessors who still somehow obtain a firearm and do not care about the
consequences. Another commenter stated that the fact that the shooter in Las Vegas was
well aware that murder is unlawful but chose to ignore the law only serves as proof that
laws do not stop evildoers.
Additionally, several hundred commenters stated that ATF should focus its time
and energy on enforcing existing gun laws and regulations rather than issuing a new one.
One commenter, a former corrections officer from Baltimore, suggested that time would
be better spent prosecuting criminals for crimes on the books. Similarly, another
commenter noted that "[w]hen the courtrooms are revolving doors that push gang
members right back out," the problem is not the lack oflaws but rather a lack of tools and
resources devoted to enforcing the existing laws. Some commenters remarked that had
there been better policing, certain mass shootings could have been avoided.

63

Department Response
The Department agrees with the commenters that the existing Jaws should be
enforced, and the Department is committed to addressing significant violent crime
problems facing our communities. No Jaw or regulation entirely prevents particular
crimes, but the Las Vegas shooting illustrated the particularly destructive capacity of
bump-stock-type devices when used in mass shooting incidents. In any event, the
impetus for this rule is the Department's belief, after a detailed review, that bump-stocktype devices satisfy the statutory definition of"machinegun." Through the NFA and
GCA, Congress took steps to regulate machineguns because it determined that
machineguns were a public safety threat. ATF must therefore classify devices that satisfy
the statutory definition of"machinegun" as machineguns. The proposed rule is thus
lawful and necessary to provide public guidance on the law.
5. Punishes Law-Abiding Citizens
Comments Received
At least 2, I 03 commenters opposed the rule on the ground that it would punish
law-abiding citizens and would turn them instantly into potential felons. They asserted
that hundreds of thousands of Jaw-abiding citizens are being punished for the acts of one
evil person and that the overwhelming majority use bump-stock-type devices lawfully
and for fun. Many commenters, some of whom do not own a bump-stock-type device,
objected that owners of these devices would become felons overnight just for owning a
piece of plastic that is not needed to achieve bump firing. They further pointed out that
because there is no grandfathering provision, Jaw-abiding gun owners would have to
surrender any bump-stock-type devices after having spent money to buy them. Many

64

raised these objections in connection with concerns that the rule is unconstitutional under
the Ex Post Facto Clause and the Takings Clause of the Constitution, as already discussed
in this preamble. Moreover, some commenters, concerned that the rule's proposed
language could later apply to other trigger assemblies, stated that thousands of lawabiding citizens may eventually become criminals overnight for simply owning a nonfactory trigger.
Department Response
The Department disagrees that law-abiding citizens would instantly become
felons under this rule. This final rule provides specific information about acceptable
methods of disposal, as well as the timeframe under which disposal must be
accomplished to avoid violating 18 U.S.C. 922(0). Current possessors ofbump-stocktype devices who properly destroy or abandon their devices will avoid criminal liability.
As described in Part IV.D. l .b, this is not a compensable "taking" of property under the
Constitution.
6. Other Priorities and Efficiencies
Comments Received
Hundreds of commenters who oppose the rule suggested that the focus should not
be on any new gun regulation but rather on an array of other issues, including addressing
mental health, drug addiction, education, civility, and the decline of parenting and
morals. Many argued that more resources should be devoted to treating the mentally ill
or to the opioid epidemic, including ensuring that law enforcement and mental health
agencies have the power to incarcerate and institutionalize people who are a danger to
themselves or others. Several others suggested that resources should be devoted to

65

securing public spaces, observing that the U.S. Capitol and all Federal buildings have
armed security but many schools and workplaces do not. Numerous commenters noted
that other improvements are needed before any new gun restriction is pursued, such as
improving records in the National Instant Criminal Background Check System (NICS),
properly charging persons with crimes that would bar them from owning firearms, or
addressing bullying and teaching morals and the Bible in schools. One commenter
suggested the Government investigate the social changes that are turning men into killers,
while another said that to make a difference, one needs to go after the videogame industry
and Hollywood movies that glorify carnage, body counts, murder, and violence.
Commenters argued that only once these issues are tackled can discussion of new gun
regulations begin.
Department Response
The Department acknowledges comments regarding treatment of mental health
and drug addiction, securing schools a11d workplaces, improving records in the NICS
system, and various social issues. The Department agrees that these are important issues,
but they are outside the scope of this rulemaking. Several of these matters were raised as
alternatives for the Department to consider. See Parl IV .F for further discussion of
alternatives.
· 7. Enforcement and Compliance
Comments Received
Some commenters questioned how ATF will enforce this regulation, and a few
stated that they or people they know of will not comply with this rule should it go into
effect. Several questioned whether the agency would send armed agents to visit homes

66

and confiscate bump-stock-type devices, while others pointed out that because bumpstock-type devices have not been tracked in any way, confiscation will depend on
volunteers. Commenters highlighted the lack of success that certain States, such as
Massachusetts, have had in collecting bump-stock-type devices after passing laws
restricting their possession. Many commenters suggested it would be a waste of A TF
employees' time and public funds for ATF to implement the rule. Several others
remarked that confiscation or enforcement would be easily circumvented because new
technology like 3D printing and CNC (Computer Numeric Control) equipment
(computerized milling machines), or even traditional manufacturing methods, will
facilitate a black market in homemade bump-stock-type devices. One commenter
submitted to ATF "a fully functional" bump-stock equivalent that was created "using
super glue, 2-part epoxy, an AR-15 A2 pistol grip, threaded steel rods, and small ABS
plastic bricks [i.e., Legos]."
Department Response
The Department acknowledges comments on enforcement of and compliance with
the rule. As stated in the NPRM, current possessors of bump-stock-type devices will be
obligated to dispose of these devices. Acceptable methods of destruction include
completely melting, shredding, or crushing the device. If the device is made of metal, an
alternative acceptable method of destruction is using an oxy/acetylene torch to make
three angled cuts that completely severs design features critical to the functionality of the
bump-stock-type device. Each cut should remove at least¼ inch of metal per cut. Any
method of destruction must render the device so that it is not readily restorable to a firing
condition or is otherwise reduced to scrap. However, as the majority of bump-stock-type

67

devices are made of plastic material, individuals may use a hammer to break them apart
so that the device is not readily restorable to a firing condition or is otherwise reduced to
scrap, and throw the pieces away.
Current possessors are encouraged to undertake destruction of the devices.
However, current possessors also have the option to abandon bump-stock-type devices at
the nearest ATF office.
Current possessors of bump-stock-type devices will have until the effective date
of the rule (90 days from the date of publication in the Federal Register)to comply.
Additional information on the destruction of bump-stock-type devices will be available at
www.atf.gov.
8. Lack of Consistency
Comments Received
Hundreds of commenters indicated that ATF's reversal of position from its earlier
determinations and insistence that a bump-stock-type device now qualifies as a
machinegun under the NFA "hurts [the agency's] credibility." As one commenter
remarked, the perpetual state of inconsistencies, whereby products are approved and then
later ruled to be illegal by ATF, "creates an air of fear and distrust in the gunowning
public," and moreover, "calls into question the validity and competence of the very
agency charged with making these determinations." Several commenters argued that
ATF's lack of consistency only serves to increase distrust of the agency, the Government,
and the legal process.

68

Department Response
The Department acknowledges comments regarding the inconsistency in ATF's
previous classifications of some bump-stock-type devices as machineguns and others as
non-machineguns. As described in Part III, upon review, ATF recognized that the
decisions issued between 2008 and 2017 did not provide consistent or extensive legal
analysis regarding the term "automatically" as that term applies to bump-stock-type
devices. Consistent with its authority to reconsider and rectify its past classifications, the
Department accordingly clarifies that the definition of"machinegun" in the NFA and
GCA includes bump-stock-type devices because they convert an otherwise
semiautomatic firearm into a machinegun by functioning as a self-acting or selfregulating mechanism that harnesses the recoil energy of the semiautomatic firearm in a
manner that allows the trigger to reset and continue firing without additional physical
manipulation of the trigger by the shooter. The Supreme Court has made clear that this
sort ofregulatory correction is permissible. An agency may change its course as long as
it "suppl[ies] a reasoned analysis for the change," which the Department has done at
length in the NPRM and this final rule. Motor Vehicle Mfrs. Ass 'n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 42 (1983). And the agency bears no heightened burden in

prescribing regulations that displace inconsistent previous regulatory actions. FCC v.
Fox Television Stations, Inc., 556 U.S. 502, 514-15 (2009).

9. Earlier Determinations Correct
Comments Received
Over 1,500 commenters opposed to the rule maintained that ATF's earlier
classifications determining certain bump-stock-type devices not to be subject to the NFA

69

or GCA were correct and should not be reversed. These commenters stated that reversing
this position is unnecessary and unlawful. To make the point that ATF is bound by its
prior determinations, many commenters submitted ATF's own classification letters and
highlighted the Department's arguments made in litigation as evidence that the rule on
bump-stock-type devices is an arbitrary decision. In particular, commenters cited the
Department's arguments made in litigation with Freedom Ordnance Manufacturing, Inc.
("Freedom Ordnance"), No. 3:16-cv-243 (S.D. Ind. filed Dec. 13, 2016). There, the
Department defended its decision to classify Freedom Ordnance's Electronic Reset
Assistant Device (ERAD) as a machinegun. In responding to Freedom Ordnance's
argument that the ERAD was a bump-stock-type device and not subject to regulation, the
Department stated such stocks were not machineguns because "(b ]ump firing requires the
shooter to manually and simultaneously pull and push the firearm in order for it to
continue firing." Brief for ATF in Support of Motion for Summary Judgment and in
Opposition to Plaintiffs Motion for Summary Judgment, ECF No. 28, at 21 (July 27,
2017). These prior decisions and admissions, commenters argued, preclude the
Department from suddenly reversing its decision.
Department Response
The Department acknowledges that ATF previously determined that certain
bump-stock-type devices were not "machineguns" under the law. The Department notes,
however, that a great deal of its analysis in the Freedom Ordnance litigation was fully
consistent with its position in this rule. For example, the Department adhered to its view
that a single pull is a "single function" of the trigger, see id at 13-14, and it argued that a
device that relieves the shooter from having to "pull and release the trigger for each

70

individual, subsequent shot" converts the firearm into a machinegun, id at 22. While the

Department accepted the previous classification of some bump-stock-type devices as
non-machineguns, it relied on the mistaken premise that the need for "shooter input" (i.e.,
maintenance of pressure) for firing with bump-stock-type devices means that such
devices do not enable "automatic" firing, see id. at 21--even though Freedom
Ordnance's ERAD also required maintenance of pressure by the shooter, see id. at 20.
In any event, as explained in the NPRM, the Department believes that ATF
clearly has authority to "reconsider and rectify" its classification errors. Akins, 312 F.
App'x at 200; see also Fox, 556 U.S. at 514-15; Hollis v. Lynch, 121 F. Supp. 3d 617,
642 (N.D. Tex. 2015) (no due process violation in A TF's revocation of mistaken
approval to manufacture a machinegun). In the NPRM, the Department noted that "ATF
has reviewed its original classification determinations for bump-stock-type devices from
2008 to 2017 in light of its interpretation of the relevant statutory language, namely the
definition of'machinegun."' 83 FR at 13446. The NPRM explained that "ATF's
classifications of bump-stock-type devices between 2008 and 2017 did not include
extensive legal analysis of these terms in concluding that the bump-stock-type devices at
issue were not 'machineguns. "' Id. Specifically, some of these rulings concluded that
such devices were not machine guns because they did not '" initiate[] an automatic firing
cycle that continues until either the finger is released or the ammunition supply is
exhausted,"' but did not provide a definition or explanation of the term "automatically."
Id. at 13445. This is precisely the purpose of this rule. As explained in more detail in

Part III, the Department has determined that bump-stock-type devices enable a shooter to
initiate an automatic firing sequence with a single pull of the trigger, making the devices

71

machineguns under the NFA and GCA. Consistent with the AP A, this rule is the
appropriate means for A TF to set forth its analysis for its changed assessment. See Motor
Vehicle Mfi·s. Ass 'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 57 (1983).
10. Bump Firing and Bump-Stock-Type Device Operation
a. Bump-Stock-Type Device Operation
Comments Received
More than 17,000 commenters argued that ATF cannot proceed because its
description of how bump-stock-type devices operate is inaccurate and that the proposed
rule is based on a false premise. Commenters emphatically argued that bump-stock-type
devices do not make a semiautomatic firearm shoot automatically by a single function of
the trigger. They stated: (I) no part of the bump-stock-type device touches the trigger
itself, but rather touches only the shooter's trigger finger, and (2) if bump-stock-type
devices made semiautomatic rifles fully automatic, then holding the gun with only the
trigger finger hand while depressing the trigger should cause the gun to repeatedly fire,
which does not happen when a rifle is affixed with a bump-stock-type device. One
commenter said that should ATF be asked to demonstrate the firing of a rifle equipped
with a bump-stock-type device with the shooter only using his trigger hand, and no
coordinated input from the other hand, it could not be done, as it requires two hands,
skill, and coordination. Similarly, another commenter asserted that while various manual
bump-firing techniques ''.vary in difficulty and are arguably more difficult to master than
the use of a bump-stock-type device, the fact is that they use exactly the same principle as
a bump-stock-type device without the use of such a device, and thus the device itself
cannot be the 'primary impetus for a firing sequence' as described."

72

Several commenters raised specific objections to ATF's description in the NPRM
that a bump-stock-type device "harnesses the recoil energy [ofa firearm] to slide the
firearm back and forth so that the trigger automatically re-engages by 'bwnping' the
shooter's stationary trigger finger without additional physical manipulation of the trigger
by the shooter" and that the device is "a self-acting and self-regulating force that channels
the firearm's recoil energy in a continuous back-and-forth cycle that allows the shooter to
attain continuous firing after a single pull of the trigger so long as the trigger finger
remains stationary on the device's extension ledge (as designed)." 83 FR at 13443.
These commenters disputed these descriptions, stating that a bump-stock-type device
does not harness any recoil energy and there is nothing that makes it an energy sink (such
as a spring) that stores recoil energy to move the firearm forward. Further, they argued
that further physical manipulation is required to operate a firearm equipped with a bumpstock-type device-specifically, the shooter must physically manipulate the trigger after
every shot fired by pushing the firearm forward to re-engage the trigger.
The bump-stock firing sequence is not automatic, commenters argued, because
trigger reset is not caused by a mechanical device, part, or combination of parts
associated with pulling the trigger. Reset occurs, they said, only if continuous forward
motion and pressure is applied by the non-trigger hand or arm of the shooter, not the
device. As described by some commenters, "[t]he trigger of a semiautomatic firearm in a
bump-stock type device is being repeatedly actuated, functioned, pulled (take your pick)
by the non trigger hand of the shooter pushing the firearm forward. That actuation,
function, [or] pull can and often does occur entirely independent of recoil. Recoil is
incidental to the firing sequence of a bump-stock type device equipped semiautomatic

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firearm, not intrinsic." In challenging ATF' s proposed rule and description of how these
devices operate, one commenter asked ATF to provide the history of the machinegun and
semiautomatic firearms, along with a discussion of the differences between the
mechanical and legal definitions.
In sum, comm enters argued that because ATF' s premise of how bump-stock-type
devices operate is inaccurate, there is no basis for ATF to regulate them as machineguns.
Department Response
The Department disagrees that ATF's description of how bump-stock-type
devices operate is inaccurate. ATF explained that bump-stock-type devices "are
generally designed to operate with the shooter shouldering the stock of the device (in
essentially the same manner a shooter would use an unmodified semiautomatic shoulder
stock), maintaining constant forward pressure with the non-trigger hand on the barrelshroud or fore-grip of the rifle, and maintaining the trigger finger on the device's
extension ledge with constant rearward pressure." 83 FR at 13443. The Department
believes that this accurately describes the operation of these devices. Further, ATF
explained that bump-stock-type devices "are designed to allow the shooter to maintain a
continuous firing cycle after a single pull of the trigger by directing the recoil energy of
the discharged rounds into the space created by the sliding stock (approximately 1.5
inches) in constrained linear rearward and forward paths." Id This is a distinctive
feature of bump-stock-type devices and enables the unique functioning and operation of
these devices. The bump-stock-type device captures and harnesses the firearm's recoil to
maintain a continuous firing sequence, and thus is properly described as "a self-acting or
self-regulating mechanism." The very purpose of a bump-stock-type device is to

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eliminate the need for the shooter to manually capture, harness, or otherwise utilize this
energy to fire additional rounds, as one would have to do to "bump fire" without a bumpstock-type device. Further, this mechanism "allows the firing of multiple rounds through
a single function of the trigger" because, as explained in the NPRM, ATF's interpretation
that the phrase "single function of the trigger" includes a "single pull of the trigger" "is
consonant with the statute and its legislative history." Akins v. United States, 312 F.
App'x 197, 200 (I Ith Cir. 2009) (per curiam).
The Department agrees with the commenters that "[n]o part of the bump stock
touches the trigger, only the shooter[']s trigger finger." However, this is neither legally
nor teclmically determinative. The fact that a bump-stock-type device does not touch the
trigger does not mean that the device has not acted automatically (by directing and
utilizing recoil energy) or that anything other than a single pull of the trigger occurred.
That is, the bump-stock-type device remains "a self-acting or self-regulating mechanism"
for the reasons described in this section. The fact that bump-stock-type devices do not
touch the trigger does not mean that they do not qualify as machineguns within the
meaning of the NF A and GCA. ATF has provided a thorough explanation of their
functioning, showing that a semiautomatic firearm utilizing a bump-stock-type device
"shoots automatically more than one shot, without manual reloading, by a single function
of the trigger." 26 U.S.C. 5845(b).
Additionally, the Department disagrees that to be classified as a "machinegun"
under the NFA, a firearm must fire "repeatedly" when a shooter holds and fires the gun
with only the trigger-finger hand. Any such argument misconstrues the meaning of
"automatically." As explained above, bump-stock-type devices operate automatically

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because their design eliminates the requirement that a shooter manually capture and
direct recoil energy to fire additional rounds. In this way, semiautomatic firearms shoot
"automatically" when equipped with bump-stock-type devices in that their recoil energy
is channeled through these "self-acting or self-regulating mechanisms." The
commenters' positions reflect previous analysis that ATF is now correcting. ATF
explained above that "[p]rior ATF rulings concerning bump-stock-type devices have not
provided substantial legal analysis regarding the meaning of the term 'automatically' as it
is used in the GCA and NFA." 83 FR at 13445.
The Department disagrees that a shooter repeatedly actuates, functions, or pulls
the trigger of a semiautomatic firearm using a bump-stock-type device with the nontrigger hand by "pushing the firearm forward." In fact, the shooter "pulls" the trigger
once and allows the firearm and attached bump-stock-type device to operate until the
shooter releases the trigger finger or the constant forward pressure with the non-trigger
hand. The non-trigger hand never comes in contact with the trigger and does not actuate,
function, or pull it. By maintaining constant forward pressure, a shooter relies on the
device to capture and direct recoil energy for each subsequent round and requires no
further manipulation of the trigger itself.
In this way, the Department also disagrees that "[r]ecoil is incidental to the firing
sequence of a bump-stock type device equipped semiautomatic firearm, not intrinsic."
Without recoil and the capture and directing of that recoil energy, a bump-stock-type
device would be no different from a traditional shoulder stock. As numerous commenters
acknowledged, bump-stock-type devices allow shooters to fire semiautomatic firearms at
a faster rate and in a different manner than they could with traditional shoulder stocks.

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Bump-stock-type devices do this by capturing and directing recoil mechanically, enabling
continuous fire without repeated manual manipulation of the trigger by a shooter.
b. Bump-Stock-Type Device Firing Technique
Comments Received
Thousands of commenters objected to the proposed rule on grounds that bumpstock-type devices are novelty items that assist with bump firing, which is a technique
that any shooter can perform with training or with everyday items such as a rubber band
or belt loop. Many commenters stated that all semiautomatic firearms can be bump fired
by a shooter simply holding the trigger finger stationary and pushing the weapon forward
until the trigger is depressed against it to the point of firing, and that use ofbump-stocktype devices makes using the bump-fire shooting technique safer for the shooter and
those around the shooter. Some commenters also gave examples of extremely skilled and
fast shooters who do not need any assistive device or item to fire a semiautomatic firearm
at a rapid rate. Commenters therefore argued that if the Department proceeds to prohibit
possession of bump-stock-type devices they must also ban rubber bands, belt loops,
string, or even people's fingers.
Department Response
The Depaiiment disagrees with commenters' assessments and believes that bumpstock-type devices are objectively different from items such as belt loops that are
designed for a different primary purpose but can serve an incidental function of assisting
with bump firing. To bump fire a firearm using a belt loop or a similar method without a
bump-stock-type device, a shooter must put his thumb against the trigger and loop that
thumb through a belt loop. With the non-trigger hand, the shooter then pushes the

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firearm forward until the thumb engages the trigger and the firearm fires. The recoil
pushes the firearm backwards as the shooter controls the distance of the recoil, and the
trigger resets. The constant forward pressure with the non-trigger hand pushes the
firearm forward, again pulling the firearm forward, engaging the trigger, and firing a
second round.
This rule defines the term "automatically" to mean "functioning as the result of a
self-acting or self-regulating mechanism." Bump-stock-type devices enable
semiautomatic firearms to operate "automatically" because they serve as a self-acting or
self-regulating mechanism. An item like a belt loop is not a "self-acting or selfregulating mechanism." When such items are used for bump firing, no device is present
to capture and direct the recoil energy; rather, the shooter must do so. Conversely, bumpstock-type devices are specifically designed to capture the recoil energy, a force that
initiates a firing sequence that ultimately produces more than one shot. That firing
sequence is "automatic" because the device harnesses the firearm's recoil energy as part
of a continuous back-and-forth cycle that allows the shooter to attain continuous firing
after a single pull of the trigger.
Bump firing utilizing a belt loop or similar method of maintaining tension on the
firearm is thus more difficult than using a bump-stock-type device. In fact, the belt-loop
method provides a stabilizing point for the trigger finger but relies on the shooter-not a
device-to harness the recoil energy so that the trigger automatically re-engages by
"bumping" the shooter's stationary trigger finger. Unlike a bump-stock-type device, the
belt loop or a similar manual method requires the shooter to control the distance that the
firearm recoils and the movement along the plane on which the firearm recoils.

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ATF's previous bump-stock-type device classifications determined that these
devices enable continuous firing by a single function of the trigger. Other firing
techniques may do the same because they rely on a single "pull." However, as ATF has
made clear, a determining factor is whether the device operates or functions
automatically. The proposed and final rules make clear that if a device incorporates a
self-acting or self-regulating component for the firing cycle, the firearm equipped with
the device operates automatically. Again, this differs from traditional semiautomatic
firearms because the trigger must be repeatedly manipulated by the shooter to fire
additional rounds, whereas a bump-stock-type device allows for a single pull, and the
self-acting or self-regulating device automatically re-engages the trigger finger.
Further, while skilled shooters may be able to fire more rapidly than a shooter
employing a bump-stock-type device on a semiautomatic firearm, they do so by pulling
and releasing the trigger for each shot fired. This is a fundamental distinction between
skilled shooters and those employing bump-stock-type devices. Bump-stock-type
devices require that a shooter pull the trigger to fire the first round and merely maintain
the requisite pressure to fire subsequent rounds. This is the purpose of a bump-stock-type
device-to make rapid firing easier without the need to pull and release the trigger
repeatedly. This shows that skilled shooters would be unaffected by the proposed rule
and counters commenters' arguments that the rule is "arbitrary and capricious" on these
grounds.

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11. Proposed Definitions
a. Vagueness - Rate of Fire
Comments Received
Many commenters focused on the increased rate of fire associated with bumpstock-type devices and objected to the proposed regulation being "based, at least in part,
on the idea that bump stocks are machineguns because they 'allow[] "rapid fire" of the
semiautomatic firearm,' 'increase the rate of fire of semiautomatic firearms,' and 'mimic
automatic fire"' (quoting 83 FR at 13443-44). Commenters objected to classifying
bump-stock-type devices as machineguns because "a high rate of fire alone does not
transform a semi-automatic into an automatic weapon under the NFA."
Additionally, other commenters objected to classifying other "rate-increasing
devices" as machineguns because doing so would require a standard rate of fire to be
defined, which some said is impossible, or would capture certain semiautomatic firearms
and firearms accessories. A few commenters pointed out that "[t]rue machine guns do
not require freedom to oscillate fore and aft to increase their rate of fire. The rate of fire
ofa machine gun is intrinsic to the weapon and completely independent of the shooter's
manual dexterity, the firing position, the number of hands holding the firearm, and any
degree of freedom of motion .... Bump stocks do not increase the rate of fire when the
semiautomatic firearm is operated with only one hand - even when shouldered. The
human element is indispensable to any firing rate increase achieved with a bump stock."
Department Response
The Depaiiment has neither proposed the rate of fire as a factor in classifying
machineguns, nor utilized this as the applicable standard in the proposed rule. The

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_ _j

Department disagrees with any assertion that the rule is based upon the increased rate of
fire. While bump-stock-type devices are intended to increase the rate at which a shooter
may fire a semiautomatic firearm, this rule classifies these devices based upon the
functioning of these devices under the statutory definition. The Department believes that
bump-stock-type devices satisfy the statutory definition of"machinegun" because bumpstock-type devices utilize the recoil energy of the firearm to create an automatic firing
sequence with a single pull of the trigger. The rate of fire is not relevant to this
determination.
The Department also agrees with commenters that the standard rate of fire of a
semiautomatic firearm or machinegun is a characteristic that is not dependent upon the
individual shooter. Any reference to the "increased" rate of fire attributable to bumpstock-type devices refers only to the increased rate of fire that a particular shooter may
achieve. Further, the Department agrees that there is no rate of fire that can identify or
differentiate a machinegun from a semiautomatic firearm. This is because the statutory
definition alone determines whether a firearm is a machinegun. The Department believes
that the final rule makes clear that a bump-stock-device will be classified as a
machinegun based only upon whether the device satisfies the statutory definition.
b. Vagueness - Impact on Semiautomatic Firearms and Other Firearm Accessories
Comments Received
More than 56,000 commenters, including those submitting through the three main
form letters opposing the rule and the NAGR submission, indicated that the proposed rule
would set a dangerous precedent because a future "anti-gun Administration" will use it to

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confiscate millions of legally owned semiautomatic firearms as well as firearm
components and accessories.
Commenters opposed to the rule broadly argued that by classifying bump-stocktype devices as machineguns, AR-15s and other semiautomatic firearms also may be
classified as machineguns. In particular, commenters stated that under the GCA, rifles
and shotguns are defined using a "single pull of the trigger" standard, in contrast to
machine guns, which are defined by a "single function of the trigger" standard under the
NFA. Commenters argued that by defining "single function of the trigger" to mean
"single pull of the trigger," the rule will bring all semiautomatic rifles and shotguns
currently regulated under the GCA under the purview of the NFA. Commenters also
argued that the proposed regulatory text encompasses a number of commercially
available items, such as Gatling guns, competition triggers, binary triggers, Hellfire
trigger mechanisms, or even drop-in replacement triggers. One commenter pointed out
that the language "firing without additional physical manipulation of the trigger by
shooter" would apply, for instance, to Model 37 pump shotguns made by Ithaca.
Several commenters said that the proposed rule should be more narrowly tailored
so that it applies to bump-stock-type devices only. For instance, one commenter
proposed that the following be added to the definition of bump-stock-type device: "A
single accessory capable of performing the roles of both a pistol grip and a shoulder
stock." Another commenter suggested that, at most, one sentence could be added at the
end of the definition of"machinegun":
For purposes of this definition, the term "automatically" as it modifies "shoots, is
designed to shoot, or can be readily restored to shoot," means a device that-(!)
attaches to a semiautomatic rifle (as defined in section 92l(a)(28) of title 18,
United States Code); (2) is designed and intended to repeatedly activate the
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trigger without the deliberate and volitional act of the user pulling the trigger each
time the firearm is fired; and (3) functions by continuous forward pressure applied
to the rifle's fore end in conjunction with a linear forward and backward sliding
motion of the mechanism utilizing the recoil energy when the rifle is discharged.
One commenter suggested that, instead of trying to define a bump-stock-type device, it
would be better to issue a rule stating that one cannot modify or replace the current style
of stock with one that contains other features, with exceptions for adjusting the length of
the stock or having a cheek rest.
Department Response
The Department disagrees that other firearms or devices, such as rifles, shotguns,
and binary triggers, will be reclassified as machineguns under this rule. Although rifles
and shotguns are defined using the term "single pull of the trigger," 18 U.S.C. 921(a)(5),
(7), the statutory definition of "machinegun" also requires that the firearm "shoots
automatically more than one shot, without manual reloading," by a single function of the
trigger, 26 U.S.C. 5845(b). While semiautomatic firearms may shoot one round when the
trigger is pulled, the shooter must release the trigger before another round is fired. Even
if this release results in a second shot being fired, it is as the result of a separate function
of the trigger. This is also the reason that binary triggers cannot be classified as
"machineguns" under the rule--one function of the trigger results in the firing of only
one round. By contrast, a bump-stock-type device utilizes the recoil energy of the
firearm itself to create an automatic firing sequence with a single pull of the trigger. The
Department notes that ATF has already described a "single pull of the trigger" as a
"single function of the trigger." See ATF Ruling 2006-2.
Further, while the phrase "firing without additional physical manipulation of the
trigger by the shooter" would apply to firearms like the Model 37 pump shotguns made

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by Ithaca, that firearm could not be classified as a machinegun under the rule. The Model
37 permits a shooter to pull the trigger, hold it back, and pump the fore-end. The pumpaction ejects the spent shell and loads a new shell that fires as soon as it is loaded. While
this operates by a single function of the trigger, it does not shoot "automatically," and
cettainly does not shoot "without manual reloading." 26 U.S.C. 5845(b). In fact, the
pump-action design requires that the shooter take action to manually load the firearm for
each shot fired.
The Department disagrees that "automatically" should be defined using the more
extensive definition quoted above. Whereas analysis as to what constitutes a "single
function of the trigger" is separate from whether a firearm shoots automatically, the
commenter's proposed definition merges the two issues. The Department believes that
this may lead to confusion, further complicate the issue, and result in further questions
that require clarification.
c. Concerns Raised by Equating "Function" and "Pull"
Comments Received '
One commenter said drafters of the NFA chose the term "function" intentionally
and that by proposing to equate "function" with "pull," a whole new fully automatic non. machinegun market will be opened because "fire initiated by voice command, electronic
switch, swipe on a touchscreen or pad, or any conceivable number of interfaces [does]
not requir[ e] a pull." The commenter suggested that "single function of a trigger" be
defined to include but not be limited to a pull, as that would include bump-stock-type
devices without opening a "can of worms."

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Department Response
The proposed addition to the regulatory definition of machinegun includes this
statement: "For purposes of this definition, the term 'single function of the trigger' means
a 'single pull of the trigger.'" The Department believes that the commenter is correctthis proposed definition may lead to confusion. The proposed definition suggests that

only a single pull of the trigger will qualify as a single function. However, it is clear that
a push or other method of initiating the firing cycle must also be considered a "single
function of the trigger." Machineguns such as the M134 Minigun utilize a button or an
electric switch as the trigger. See 83 FR at 1344 7 n.8 (explaining that other methods of
trigger activation are analogous to pulling a trigger).
Therefore, the Department concurs with the commenters and has modified the
proposed definition so that in this final rule the regulatory text will state that "single
function of the trigger" means a "single pull of the trigger" and analogous motions rather
than a "single pull of the trigger." Although the case law establishes that a "single pull"
is a "single function," those cases were addressing devices that relied on a single pull of
the trigger, as opposed to some other single motion to activate the trigger. The term
"single function" is reasonably interpreted to also include other analogous methods of
trigger activation.

E. ATF Suggested Alternatives

I. General Adequacy of ATF Alternatives
Comments Received
One commenter opposed to the rule suggested that the alternatives discussed in
the NPRM were not in compliance with Office of Management and Budget (0MB)

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Circular A-4 guidance, and that ATF failed to consider available alternatives and the
impact on innovation. In addition, the commenter stated that ATF failed to show a need
for the rule and argued that A TF did not make a good-faith attempt to meet its statutory
mandate to identify, analyze, and rule out feasible alternatives. One commenter
suggested that the analysis of alternatives should include alternatives provided under
0MB Circular A-4, which include tort liability, criminal statutes, and punishments for
violating statutes.
Department Response
0MB Circular A-4 requires the consideration of"possible alternatives" to
regulation. 8 ATF considered possible alternatives that it could legally employ under the
NFA, as many of the suggested alternatives from commenters--e.g., grandfathering and
reimbursement policies-are not possible given the legal constraints of existing ATF
authority. 0MB Circular A-4 stipulates, "The number and choice of alternatives selected
for detailed analysis is a matter of judgment. There must be some balance between
thoroughness and the practical limits on [the agency's] analytical capacity." 9 Circular A4 adds that "analyzing all possible combinations is not practical when there are many
options (including possible interaction effects)." 10 In these cases, the agency is to use its
judgment to choose reasonable alternatives for careful consideration. During formulation
of the NPRM, ATF considered various alternatives, including examples provided under
0MB Circular A-4, and deemed them inappropriate. ATF believes that bump-stock-type

8

0MB Circular A-4, Regulatory Analysis, at 2 (Sept. 17, 2003),
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
9
Id. at 7.
'° Id. at 11.

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devices satisfy the definition of "machinegun" under the NFA, so regulatory action is
necessary to implement the NFA and GCA.
2. First ATF Alternative - No Regulatory Action
Comments Received
Commenters opposed to the regulation implicitly agreed with the first alternative
listed by ATF, which is for the Department not to take any action. They argued that
attention should be devoted to improving the background check system, that A TF should
concentrate on enforcing the existing gun laws, or that if there is to be change, that
change should be made by Congress or the States. One commenter argued ATF failed to
properly analyze this alternative.
Department Response
As explained above, Part IV.D.4, the Department has concluded that the NFA and
GCA require regulation of bump-stock-type devices as machineguns, and that taking no
regulatory action is therefore not a viable alternative to this rule.
3. Second ATF Alternative - Shooting Ranges
Comments Received
Commenters who suggested that bump-stock-type devices be used in a controlled
setting, or be available only at shooting ranges, were largely in support of the rule rather
than viewing it as a complete alternative to taking no regulatory action.
Department Response
The Department acknowledges comments on the potential use of bump-stock-type
devices in a controlled setting, such as a shooting range. As stated above, the Department
believes that such items satisfy the statutory definition of "machinegun," and therefore it

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is promulgating this rule to clarify the definition. ATF has previously held that the onpremises rental of NF A firearms is permitted. However, whereas machineguns that are
currently available for rental at shooting ranges are lawfully registered in the NFRTR if
they may be lawfully possessed under 18 U.S.C. 922(o)(2)(B), bump-stock-type devices
cannot be registered because none were in existence when section 922( o) was enacted in
1986.
4. Third ATF Alternative- Use Other Means
Comments Received
Many commenters opposed to the rulemaking pointed out that bump firing can be
accomplished by using other everyday items such as belt loops or rubber bands. See Part
IV. I 0.b. No commenter said that solely using rubber bands or other items would be a
satisfactory alternative if the proposed rule went into effect. Rather, these commenters
made the point that if bump firing is possible with or without bump-stock-type devices,
then the Department would be obliged to also prohibit possession of rubber bands and
belt loops under the NFA.
Department Response
The Department has detailed in the NPRM and this rule the distinction between
bump firing with a bump-stock-type device and using belt loops or rubber bands. See
Part IV.10.b. Although a shooter using a belt loop, string, or other manual method
utilizes recoil energy to bump fire, the shooter is responsible for constraining the firearm,
maintaining the correct finger pressure, and regulating the force necessary to fire
continuously. This is clearly distinguishable from a bump-stock-type device, as ATF has
explained that such a device functions "as a self-acting and self-regulating force that

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channels the firearm's recoil energy in a continuous back-and-forth cycle that allows the
shooter to attain continuous firing after a single pull of the trigger so long as the trigger
finger remains stationary on the device's extension ledge." 83 FR at 13443. Based on
the clear differences between bump-stock-type devices and manual means of bump firing,
the Department disagrees with the commenters that manual means of bump firing are
factually or technically equivalent to bump-stock-type devices.
F. Other Alternatives

I. Allow Registration or Grandfathering of Bump-Stock-Type Devices Under NFA
Comments Received
Several hundred commenters argued that A TF should announce an amnesty
period, allowing time for current owners of bump-stock-type devices to register them as
NFA firearms in the NFRTR. These commenters argued that pursuant to section 207(d)
of the GCA, the Attorney General has power to establish amnesty periods for up to 90
days. Further, they argued there is precedent for an amnesty period, pointing to the
seven-year amnesty/registration period that was allowed for the Striker-12/Streetsweeper
and USAS-12 shotguns. See ATF Rulings 94-1, 94-2. Doing so, they argued, would
save the Government from having to compensate current owners of bump-stock-type
devices and also even generate money for the Government, as individuals would be
required to pay a $200 tax on the devices. See 26 U.S.C. 5821.
Department Response
The Department disagrees that an amnesty period is possible in this scenario.
While in 1968 Congress left open the possibility of future amnesty registration of
firearms subject to the NFA, ATF has long held that it eliminated any possible amnesty

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.

I

for machineguns in 1986. Following passage of 18 U.S.C. 922(0), ATF advised the
industry and the public that amnesty registration of machineguns was not legally
permissible. For example, in 1996 and 1997, ATF advised an industry member that
18 U.S.C. § 922(0) would preclude the registration ofmachineguns during
an amnesty period. Section 922(0) prohibits possession ofmachineguns
which were not lawfully possessed prior to its effective date of May 19,
1986 .... Since 922(0) [was enacted after the amnesty provision of the
NFA], its provisions would prevail over any earlier enactment in conflict.
This means that any future amnesty period could not permit the lawful
possession and registration of machineguns prohibited by section 922(o ).
Letter for C. Michael Shyne from ATF's National Firearms Act Branch Chief(March 10,
1997). Section 922( o) does not ban the private possession and transfer of all
machineguns because it specifically excludes "any lawful transfer or lawful possession of
a machinegun that was lawfully possessed before the date [section 922(0)] takes effect."
18 U.S.C. 922(o)(2)(B). The intent of the statute was to limit transactions in post-1986
machineguns. See United States v. Ferguson, 788 F. Supp. 580,581 (D.D.C. 1992)
("Under section 922(o)(2)(B), certain machineguns, namely, those that were lawfully
possessed before enactment of the statute in 1986, may be legally possessed and
transferred even today."); see also United States v. O'Mara, 827 F. Supp. 1468, 1470 n.4
(C.D. Cal. 1993) (citing Ferguson). Congress's goal was to ban the transfer and
possession of such weapons outright. United States v. Hunter, 843 F. Supp. 235, 247-48
(E.D. Mich. 1994). The legislative history supports this proposition. When asked
whether an amnesty period could "be administratively declared by the Secretary of the
Treasury by the enactment of this bill," Senator Kennedy responded that "[t]here is
nothing in the bill that gives such an authority, and there is clearly no valid law
enforcement goal to be achieved by such open-ended amnesty." See id at 248.

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Some commenters pointed to ATF Rulings 94-1 and 94-2 as precedent for an
amnesty period; however, section 922( o) applies only to machineguns, and there was no
similar restriction on the destructive devices at issue in ATF Rulings 94-1 and 94-2.
Therefore, these rulings cannot serve as precedent in the present case.
2. Licensing and Background Checks
Comments Received
Numerous commenters suggested other methods for how bump-stock-type
devices should be regulated, including methods involving background checks. Some
commenters broadly suggested that these devices should be sold like firearms under the
GCA, meaning that the purchaser would undergo a background check when acquiring
one from a retailer. One commenter suggested a new "2.5 firearms class" that would
cover "grey area" guns and accessories, like bump-stock-type devices. Possessors of
items falling under the "2.5 firearms class" would undergo background checks and, as
with State-issued concealed-carry permits, local law enforcement would be able to cancel
privileges if necessary. Other commenters suggested that bump-stock-type devices
should not be available to the public unless the possessor is licensed, passes a background
check, or provides a valid reason for needing a bump-stock-type device. Another
commenter suggested bump-stock-type devices should be regulated like "any other
weapon" under the NFA, 26 U.S.C. 5845(e), so that current owners could register them
by paying a $5 fee, allowing a waiting period to elapse, and establishing a paper trail of
ownership.

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Department Response
The Department acknowledges these suggested alternatives but does not have the
authority to add a new class of firearms to the statutory scheme or impose licensing
requirements to acquire a firearm. Such changes would require legislation. Further, the
definition of"any other weapon" in the NFA does not apply to bump-stock-type devices.
Because bump-stock-type devices are properly classified as "machineguns" under the
NFA and GCA, the Department believes that ATF must regulate them as such, and that
the recommended.alternatives are not possible unless Congress amends the NFA and
GCA.
3. Remuneration
Comments Received
Over 1,000 commenters opposed to the rule argued that compensation should be
provided to owners of bump-stock-type devices. Several supporters of the rule also
suggested there should be a buy-back program in order to reduce the number ofbumpstock-type devices. One commenter more specifically stated that manufacturers or
retailers should be required to buy back all such devices and make full refunds to all
purchasers. Another supporter suggested a one-lime tax credit to owners who surrender
their bump-stock-type devices or provide proof of destruction.
Department Response
The Department acknowledges comments on compensation for current owners of
bump-stock-type devices. While ATF has the authority to implement the NFA and GCA,
the Department does not have the necessary Federal appropriations to implement a buy-

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back program or offer monetary compensation. To implement a buy-back program or
provide a tax credit would require congressional action.
4. Medical Exemption
Comments Received
Some commenters suggested that Department amend the proposed rule so it
would provide an exemption for "medical necessity," thereby allowing certain
individuals, such as those with nerve damage or one functional arm, to possess bumpstock-type devices. Similarly, commenters suggested bump-stock-type devices should
only be available for people who are physically unable to pull a trigger for hunting or
target practice.
Department Response
The Department does not have authority to create a medical exemption for the
possession of machineguns. Pursuant to the NFA and GCA, for private possession of
machineguns to be lawful, they must have been lawfully possessed before the effective
date of 18 U.S.C. 922(0).
5. Allow Removal of Trigger Ledge
Comments Received
One commenter suggested that "ATF could find that bump-stock-type devices
with the ledge/rest removed are not affected by any additional regulation." The
commenter argued that this would make the proposed rule "logically consistent with the
notion that operators may 'bump fire' with or without a bump-stock-type device, as long
as they do not utilize a device allowing a fixed trigger finger."

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Department Response
The Department does not believe that removing the trigger ledge is sufficient to
affect a bump-stock-type device's classification as a machinegun. While the trigger
ledge makes it easier to utilize the device, removing the ledge does nothing to prevent the
directing of the "recoil energy of the discharged rounds into the space created by the
sliding stock (approximately 1.5 inches) in constrained linear rearward and forward
paths." 83 FR at 13443. Therefore, even without the trigger ledge, the bump-stock-type
device will operate as designed if the shooter simply holds his or her finger in place. As
such the bump-stock-type device remains a "machinegun" under the NF A and GCA.
6. Miscellaneous Alternatives to Regulate Bump-Stock-Type Devices
Comments Received
Other miscellaneous comments included suggesting a ban only on future
production and commercial sale of such items; enacting a quota on the number of devices
that can be produced or possessed; enacting a Pigouvian tax, which is a tax imposed on a
good that is calculated to reduce market quantity (and increase market price) in order to
achieve the socially optimal level of the good; deferring action until Congress takes
action; leaving the matter for State legislative action; improving security at mass-attended
events; and improving law enforcement capabilities.
Department Response
The Department acknowledges comments on alternative suggestions for the
regulation of bump-stock-type devices, but it does not have authority to implement many
of the suggested alternatives. The Department does not have the authority to restrict only
the future manufacture or sale of bump-stock-type devices, nor does it have the authority

94

to remove the general prohibition on the transfer and possession of machineguns that
were not lawfully possessed on the effective date of 18. U.S.C. 922(0). In addition, the
Department lacks the authority to enact an excise tax on bump-stock-type devices.
As mentioned above, the Department does not agree with commenters that any
change needs to be enacted by Congress or should be left to State legislatures. Congress
passed both the NF A and GCA, delegating enforcement authority to the Attorney
General. Accordingly, the Attorney General has the authority to promulgate regulations
necessary to enforce the provisions of the NF A and GCA, and the Department
determined that notice-and-comment rulemaking was the appropriate avenue to clarify
the definition of "machinegun." In the interest of public safety and in light of the
statutory definition of "machinegun," the Department has determined that Federal
regulation of bump-stock-type devices is necessary. However, this action does not
prevent Congress from taking action on bump-stock-type devices in the future.
The Department acknowledges comments on improving security at mass-attended
events and agrees that it is important to improve law enforcement capabilities. The
Department actively works with State and local law enforcement agencies to provide
security at mass-attended events, as well as training and equipment for their departments.
G. Proposed Rule 's Statutory and Executive Order Review

Comments Received
A few commenters suggested that ATF failed to comply with Executive Orders
12866, 13563, and 13771, including failing to identify and repeal two regulations for
every new regulation issued. Commenters argued that ATF did not quantify the benefits
of the rule, and it did not explain why those benefits were unquantifiable as required by

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0MB Circular A-4. Commenters stated that ATP did not identify the need for the
proposed rule, in that ATP cited no evidence to support that the Las Vegas shooter used a
bump-stock-type device. One commenter asked that ATP demonstrate how the costbenefit analysis shows that the proposed rule is in the interests of gun owners, business
owners, and the Federal Government. The commenter further suggested that ATP did not
provide any citations or peer-reviewed research as evidence of the need for Federal
regulatory action. Lastly, some commenters questioned how ATP determined the
negative externalities that were presented in the NPRM.
Department Response
Executive Order 12866 and 0MB Circular A-4 acknowledge that regulatory
agencies should comply with them wherever possible or feasible. The Department
interprets and adheres to the existing Executive Orders and 0MB Circular A-4 to the
extent that it is possible, using the best available information, and to the extent quantified
information was available. Alternatively, wherever quantifiable means were not
available, the Department considered qualitative costs, benefits, concerns, and
justifications.
This rule is a significant regulatory action that clarifies the statutory definition of
machinegun. By clarifying that bump-stock-type devices are machineguns subject to the
restrictions of the NF A and GCA, the rule in effect removes those devices from the
civilian marketplace. This final rule is an Executive Order 13 771 regulatory action. See
0MB, Guidance Implementing Executive Order 13771, Titled "Reducing Regulation and

Controlling Regulato,y Costs" (Apr. 5, 2017).

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As for the need for Federal regulation, agencies are allowed to consider public
safety as a compelling need for a Federal rulemaking. Executive Order 12866 expressly
recognizes as appropriate exercises of agency rulemaking authority that "are made
necessary by compelling public need, such as material failures of private markets to
protect or improve the health and safety of the public, the environment, or the well-being
of the American people." 58 FR 51735 (Oct. 4, 1993). As explained in the NPRM, the
purpose of this rule is to amend ATF regulations to clarify that bump-stock-type devices
are "machineguns" as defined by the NF A and GCA, with a desired outcome of
increasing public safety. In accordance with 0MB Circular A-4, the Department has
provided information wherever possible regarding the costs, benefits, ~nd justification of
this rule.
As further requested by one commenter, this rule not only considers the
implications of this rule on gun owners in the United States, business owners, and the
Federal Government, but also considers the risk of criminal use of bump-stock-type
devices and the general safety of the public to justify the issuance of this final rule.

H Affected Population
Comments Received
There were a number of commenters who stated this rule will affect between
200,000 and 500,000 owners. Some commenters suggested that the estimated number of
bump-stock-type devices should be higher, potentially over a million, than the estimated
amount stated in the NPRM. Some commenters indicated that this would incorporate
homemade devices, 3D-printed devices, or other devices made by personal means.

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Department Response
In the NPRM, ATF did not estimate the number of owners. 83 FR at 13449. The
280,000-520,000 range in the Executive Order 12866 section of the NPRM is the
estimated number of bump-stock-type devices in circulation, not the number of owners.
While the Department does not know the total number of bump-stock-type devices
currently extant, nor the number of owners, the Department's high estimate of 520,000 is
still the primary estimate only for devices sold on the market. While it may be possible
to make homemade devices, the Department cannot calculate the number of such devices
or the likelihood of these devices circulating among the public. The Department is using
the best available information, and there is no known information that would allow A TF
to estimate such a number, much.less achieve the level of accuracy that the public is
requesting. Therefore, the estimates provided continue to be based upon the best
available information.

I Costs and Benefits
1. Costs to Purchasers
Comments Received
One commenter stated that some models of bump-stock-type devices never sold
for less than $425 plus taxes. Another commenter stated that the Department's regulatory
analysis did not account for the individual cost in purchasing bump-stock-type devices,
only manufacturers' and retailers' expenses. Other commenters suggested that the
analysis did not account for taxes. One commenter suggested that the costs should
incorporate the cost of purchasing a pre-1986 machinegun. One commenter suggested

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that many owners have bump-stock-type devices as the only stocks that they own and that
purchasing a standard stock will need to be incorporated into the analysis.
Some commenters stated that the cost analysis does not include compensation for
bump-stock-type devices and that the cost could be more than $50 trillion. Other
commenters indicated that the rule did not account for lost lives, treatment costs,
decreased tourism, and costs of criminal investigations. Other commenters argued that
ATF failed to consider other costs, such as loss of faith in ATF by the regulated industry
and resentment for not being reimbursed for bump-stock-type devices.
Department Response
The Department concurs that certain models sold at the $425.95 rate (a rate also
included in ATF' s range of costs published in the NPRM), representing the high end of
the range of rates. 83 FR at 13451. However, bump-stock-type devices also sold for as
low as $100. Id In order to account for the full range of prices, the Department used the
average of the full range of prices; therefore, the average price of $301 was used in the
NPRM to account for the full range of market prices for these bump-stock-type devices.

Id As for the payment of taxes, the Department concurs that an unknown number of
bump-stock-type-devices were sold, and individuals paid local taxes on them at time of
purchase. For the purposes of this final rule, the Department maintains the average price
used in the NPRM but incorporates the average cost of combined State and local taxes.
For the purposes of this final rule, the Department estimates that the national average of
taxes is 6.47% and attributed this tax rate to the price of all bump-stock-type devices that
were sold on the market. 11

11

See Jared Walczak & Scott Drenkard, State and Local Tax Rates in 2017, Tax Found. (Jan. 31, 2017),
https://taxfoundation.org/state-and-local-sales-tax-rates-in-2017 /.

99

The Department disagrees that the regulatory analysis did not account for the
individual cost in purchasing bump-stock-type devices. The market price of bump-stocktype devices sold to the public represents the public price of these devices, which also
accounts for the manufacturer and retail prices and does not double-count costs. While it
may be possible for the public to purchase a pre-1986 machinegun, these amounts are not
used to purchase bump-stock-type devices, so the market prices for these pre-1986
machineguns are not considered for purposes of this rule.
The Department reached out to the commenter who discussed the population of
gun owners who will need to replace their bump-stock-type devices with standard stocks.
The commenter was unable to provide a source establishing the existence of such gun
owners and only speculated that this was a possibility. Having determined that this was
speculation, the Department declined to incorporate this information into the analysis.
The Department does not propose compensation for bump-stock-type devices, so
these costs were not included in the rule. See Part IV.D.l.b for a discussion of the Fifth
Amendment's Takings Clause. Further, costs associated with victims, criminal
investigations, loss of tourism, loss of faith in ATF by the regulated industry, and
resentment for not being reimbursed for bump-stock-type devices are all indirect or
unquantifiable costs of the rule and are not considered in the cost-benefit analysis.
2. Costs to Manufacturers, Employees, and Communities
Comments Received
Commenters suggested that this rule will cost manufacturers, employees, and
families of manufacturers their livelihood. In particular, one commenter suggested that
three additional manufacturers would have entered or re-entered the market after the

100

lapse of the patent for the main manufacturer of bump-stock-type devices. Additionally,
public comments suggested that the Department overlooked the capital expenses required
to start a company.
Department Response
The Department has considered the effect that this rule will have on these
manufacturers, employees, and families and acknowledges that they will no longer be
able to manufacture bump-stock-type devices. The Department acknowledges that there
will be a potential loss of wages from employees losing jobs from loss of manufacturing;
however, the extent to which they are unable to find replacement jobs is speculative. The
Department considered the capital expenses for manufacturers, including patents and
equipment to start production. However, in light of the Las Vegas shooting and the
estimated time it would have taken for the patents to expire, the Department has
determined that there could be potential crowding of additional manufacturers and
saturation of the market for bump-stock-type devices. Therefore, the viability of these
businesses is speculative and the capital expenses that they incurred are a sunk cost for
those who put in the expense. While the Department does not include capital expenses
for manufacturing in the economic analysis, the Department had already considered the
overall potential for return on investment for any manufacturers who would have
remained in the market from the existing estimate of foregone production. Accounting
for capital expenses would be double counting of expenditures. Therefore, the economic
analysis for this portion remains the same.

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3. Costs of Litigation
Comments Received
Commenters suggested that the Department did not account for the cost of
litigation regarding the rule.
Department Response
Litigation costs are not a direct cost of the rule because such costs do not result
from compliance with the rule. Additionally, any estimate of litigation expenses would
be highly speculative and would not inform the Department's decision regarding the
implementation of this final rule. However, the Department acknowledges that to the
extent parties choose to enter into litigation regarding this final rule, there are indirect
costs associated with that litigation.
4. Government Costs
Comments Received
Commenters suggested that this rule would cost the Government approximately
$297 million, including the disposal cost of the bump-stock-type devices. Other
commenters indicated that confiscation costs were not included in the cost of the rule.
One commenter provided estimates on the cost to house bump-stock-type device owners

.

in prison as felons, particularly if a large number of owners opt not to destroy such
devices. Lastly, one commenter suggested that A TF consider foregone sales taxes
associated with ammunition used to fire bump-stock-type devices.
Department Response

In the NPRM, the Department estimated that the total cost of the rule for the
general public (e.g., owners and manufacturers of bump-stock-type devices) would be

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about $326.2 million over a 10-year period, not that the rule would cost the Federal
Government that amount. 83 FR at 13454. The Department's estimate that Government
costs are de minimis still stands for this final rule because the costs identified by these
commenters are not Government expenditures. Further, costs associated with
administering the option of current possessors of bump-stock-type devices abandoning
their devices at their local ATF offices will be de minimis. The Department also
disagrees that this rule will turn owners of bump-stock-type devices into felons. This
final rule provides an effective date that allows ample time for current owners to destroy
or abandon such devices. To the extent that owners timely destroy or abandon these
bump-stock-type devices, they will not be in violation of the law or incarcerated as a
result. However, if prohibited bump-stock-type devices are possessed after the effective
date of the final rule, the person in possession of the bump-stock-type device will be in
violation of Federal law.
While the usage of bump-stock-type devices may boost ammunition sales, the
Department did not consider the loss of tax revenue collected from additional
ammunition sales because they are speculative and are not a direct cost of the rule.
Additionally, any estimate of tax revenue generated would not inform the Department's
decision regarding the implementation of this final rule.
5. Benefits
Comments Received
Commenters stated that there are no quantifiable benefits to justify the costs of
this rule, nor will it prevent criminal use of firearms. One commenter also stated that
ATF did not explain why the benefits were unquantifiable as required by 0MB Circular

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A-4. Some commenters suggested that ATP is required "by law" to quantify and
monetize benefits. Commenters stated that the benefits do not outweigh the costs and
ATP failed to conduct any analysis of the benefits of the rule and did not quantify the
benefits. Further, commenters argued that ATP did not substantiate its assertion that
bump-stock-type devices will be used more frequently in future crimes if this rule is not
promulgated.
One commenter argued that the Department needed to separate the effects of
using a bump-stock-type device from other factors that might have incremental effects on
criminal activity, such as crowd density and angle of fire. The commenter stated that
benefits must be reduced accordingly and must take into account a reduction in violence
instead of elimination of the threat of violence from bump-stock-type devices. Many
commenters argued that ATF cannot rely on the Las Vegas shooting as the measure of
benefits for this rule.
Commenters discussed means of monetizing shooting incidents or comparing the
death rates related to other items like motor vehicles, opiates, knives, and rocks. Other
comm enters in support of the rule suggested that ATP incorporate the financial and
societal benefits of this rule.
Department Response
The Depaiiment declines to quantify benefits because 0MB Circular A-4 requires
quantifying and monetizing benefits only "if possible." 0MB Circular A-4 at 45. One
commenter provided descriptions on how to determine quantitative benefits of this rule
and specifics on using a break-even analysis; however, due to limitations on data, the
Department has considered the qualitative benefits for this rulemaking.

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The Department did not account for the cost of deaths and injuries unrelated to
bump-stock-type devices, as these are unrelated to this rule. This rule does not prohibit
the use of firearms that could be used in shootings, or other items or devices.
Furthermore, it is unclear how risk associated with other devices such as motor vehicles
should influence ATF's decision-making. ATF has provided a cost-benefit analysis in
both the NPRM and this final rule that fulfills the requirements of Executive Order
12866, 0MB Circular A-4, the Regulatory Flexibility Act (RF A), and the Unfunded
Mandates Reform Act.
J. Regulatory Flexibility Act

Comments Received
Some commenters suggested that the RF A requires examination of the future
impact of the rule on innovation and of making a lawful product into an unlawful one.
Department Response
The Department disagrees that the RFA requires an examination of those specific
factors. The RF A "requires agencies to consider the impact of their regulatory proposals
on small entities, analyze effective alternatives that minimize small entity impacts, and
make their analyses available for public comment." 12 The RFA "does not seek
preferential treatment for small entities, nor does it require agencies to adopt regulations
that impose the least burden on them, or mandate exemptions for them. Rather, it
requires agencies to examine public policy issues using an analytical process that

12

U.S. Small Business Administration, Office of Advocacy, A Guide for Government Agencies: How to
Comply with the Regulatory Flexibility Act, at I (Aug. 2017),
https://www .sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf.

105

identifies barriers to small business competitiveness and seeks a level playing field for
small entities, not an unfair advantage." 13
The Department found that this rule significantly impacts small businesses related
to bump-stock-type devices. The Department interprets the RF A to mean that small
businesses should not be prevented from using innovations to compete with other
businesses, and to account for small businesses when determining alternative approaches
with respect to small businesses in the field. 14 At this time, there are only small
businesses that manufacture bump-stock-type devices; therefore, no regulatory alternative
was considered to alleviate the regulatory burden on small businesses with respect to
competition with businesses that are not small.
K. Miscellaneous Comments

Commenters both in support of and in opposition to the proposed rule raised
additional miscellaneous issues. These are discussed below.
1. Improve Background Checks
Comments Received
Separate from the suggested alternative, discussed above, that bump-stock-type
devices be sold like firearms, many commenters voiced their general support for various
enhancements to the existing Federal background check requirement. Commenters said
the "gun show loophole" should be closed, and many called for universal background
checks. At least one commenter suggested there should be psychiatric evaluations for
firearms purchasers. Commenters making these points were largely supporters of the
proposed rule, but at least a few commenters opposed to the rule also supported

13
14

Id.
Id.

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background checks. One opposed commenter said better communication between the
relevant government agencies and tighter background checks were needed. A few
opposed commenters suggested it would be more effective to have a more in-depth
background check along with a minimum age of 21 or 25 and a five-day waiting period
because they observed that young, alienated people have frequently been the perpetrators
of mass shootings.
Department Response
The Department acknowledges comments on enhanced or expanded background
checks, an increase in minimum age requirements, and waiting periods. The Department
is aware of the importance of having accurate and complete information available to the
NICS, which is managed by the FBI; further, the Department works with Federal and
State agencies to ensure that necessary information is submitted to the system. The
Department does not, however, have the authority to increase the minimum-age
requirement or enact a mandatory waiting period to purchase a firearm.
2. Increase Criminal Penalties
Comments Received
Commenters on both sides of the issue suggested that there be more stringent
criminal penalties for firearms offenses. Some commenters in support of the rule said
there should be severe penalties for possessing a bump-stock-type device, or for
manufacturing one through digital printing, or simply for anyone who manufactures or
distributes bump-stock-type devices. Another commenter supporting the rule said that
bump-stock-type devices should be prohibited from all public spaces where there is the
potential for mass murder, but did not object to persons who wanted to use bump-stock-

107

type devices on their own property or on hunting or shooting grounds. Some commenters
opined that generally there should be more severe penalties for anyone using guns
illegally or irresponsibly. A few commenters opposed to the rule suggested that in lieu of
a rule prohibiting possession, a more effective deterrent would be severe penalties for the
manufacture and sale of bump-stock-type devices, and that there should instead be swift
and severe punishment, such as the death penalty for persons who commit or attempt to
commit a mass shooting, or, more generally, that the law should be written to include
mandated, nondiscretionary sentences.
Department Response
The Department does not have the authority to increase criminal penalties. Only
Congress can increase, amend, or add new criminal penalties for Federal crimes.
3. Repeal the NF A and Hughes Amendment, and Remove Silencers
Comments Received
Numerous commenters opposed to the regulation viewed the proposed rule as an
infringement on their rights. As part of their opposition to the proposed rule, some
commented that the NF A itself is inherently unconstitutional and declared that it should
be repealed. Commenters similarly questioned the constitutionality of the Hughes
Amendment (18 U.S.C. 922(0)), which was enacted as a part of the Firearms Owners'
Protection Act in 1986 and prohibits possession by individuals of any post-1986
machinegun. These commenters declared it should be repealed. A majority of these
commenters simply objected to any further firearms restrictions and insisted th~se laws
be repealed in order to restore freedoms they believe to have been steadily eroded by the
Government. Some commenters noted that bump-stock-type devices evolved as a

108

workaround to the NF A and Hughes Amendment restrictions so that shooters could have
an affordable alternative to shoot in a manner that is close to a machinegun. Some
opined that that a rule prohibiting bump-stock-type devices would be acceptable so long
as these other restrictions are lifted to give individuals affordable access to machineguns.
A few commenters also added that silencers should be removed from the NF A's coverage
or be made available like any other firearm device, with at least one commenter stating
that the Hearing Protection Act or Sportsmen's Heritage and Recreational Enhancement
(SHARE) Act should be passed.
Department Response
The Department does not have the authority to repeal or amend provisions of the
NF A, such as by removing silencers from the NF A. The NF A is a statute, which only
Congress may repeal or alter. ATF does not have the authority to remove the general
prohibition on the transfer and possession of machineguns that were not lawfully
possessed before the date 18 U.S.C. 922(0) became effective, nor does it have the
authority to permit nongovernmental entities to possess machineguns or other NF A
firearms that are not lawfully registered in the NFRTR. Only Congress can alter these
provisions. However, as stated, ATF does have the authority to implement the existing
statute and has utilized the rulemaking process to do so.
4. Focus on Mental Health and Other Gun Control Measures
Comments Received
Supporters argued that in addition to finalizing the rule, more attention needs to
be paid to improving mental health care. Generally, these commenters suggested there
should be more spending on the mental health system so as to increase access.

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Numerous commenters in support of the rule also listed several other proposals
pertaining to gun safety or gun control measures that should be implemented. Almost
5,000 commenters expressed that "other conversion devices" along with bump-stock-type
devices should be banned. And more than 1,500 commenters also called for a ban on
"assault weapons" or firearms altogether, while several others specifically stated that
there should be restrictions on high-capacity magazines. Some commenters provided
many other suggestions, including a higher age limit to acquire a firearm, written tests for
firearm access, mandatory gun safety classes, proper storage inspections, a nationwide
gun registry, licensure and gun ownership insurance requirements, ammunition limits,
and protocols for removing firearms from domestic abusers and the mentally ill through
protective orders.
Department Response
The Department acknowledges the importance of improving mental health care.
However, mental health treatment does not fall under the Department's authority.
Although this rulemaking specifically addresses bump-stock-type devices, any
item that meets the definition of a "machinegun" will be regulated as such and cannot be
possessed unless legally registered. But only Congress can add additional requirements
that must be met in order to purchase a firearm.
The Department does not have the authority to remove firearms from persons who
are not prohibited from receiving or possessing them under Federal law. Only Congress
can amend or add new categories of prohibited persons.
L. Comments on the Rulemaking Process

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1. Availability of Supporting Documentation
Comments Received
A handful of commenters argued that the procedures of the AP A were not
properly followed, in part because ATF did not include any supporting documentation on
how it formulated its decision to regulate bump-stock-type devices. In particular,
commenters stated that although they submitted Freedom of Information Act requests,
A TF did not make available its own prior letter determinations that classified various
bump-stock-type devices as firearm parts not subject to the NF A or GCA, nor did ATF
make available any evidence suggesting that there have been other instances of criminal
use of a bump-stock-type device. This kind of documentation, they argued, would
provide the basis upon which the agency justified its proposed rule and therefore should
be made public in order to allow for meaningful comment under the AP A.
Department Response
Contrary to the commenters' arguments, the Department believes that it provided
all of the background information necessary to allow meaningful public participation.
The APA, 5 U.S.C. 553(b), provides that "[g]eneral notice of proposed rule making shall
be published in the Federal Register," and that this notice shall include, inter alia, "either
the terms or substance of the proposed rule or a description of the subjects and issues
involved." Federal courts have recognized that they must determine whether regulations
are consistent with statutes, and "whether the process used in arriving at those regulations
afforded those affected ... their procedural due. More specifically, in the informal
rulemaking context ... , this inquiry asks whether the agency gave 'interested persons an
opportunity to participate in the rule making through submission of written (or other)

111

data' and whether it 'incorporate(d) in the rule adopted a concise general statement of
their basis and purpose."' Weyerhaeuser Co. v. Castle, 590 F.2d 1011, 1024 (D.C. Cir.
1978) (quoting 5 U.S.C. 553). A "notice of proposed rulemaking must provide sufficient
factual detail and rationale for the rule to permit interested parties to comment
meaningfully." Honeywell Int'!, Inc. v. EPA, 372 F.3d 441,445 (D.C. Cir. 2004)
(internal quotation marks omitted).
The Department agrees with commenters that interested parties will not be able to
make meaningful comments upon an agency's proposed regulation if the notice "fails to
provide an accurate picture" of the agency's reasoning. Conn. Light & Power Co. v.
NRC, 673 F.2d 525,528 (D.C. Cir. 1982). Commenters fail, however, to recognize that

the text of the NPRM set out the facts necessary to "provide an accurate picture" of the
Department's reasoning. In the NPRM, the Department articulated the reasons for its
proposed change in the classification of bump-stock-type devices, provided detailed
descriptions and explanations of its prior classifications, and offered thorough
explanations of its past and current analysis. Accordingly, the Department believes that it
provided notice to the public, in sufficient factual detail, to permit interested parties to
comment meaningfully on the proposed rule.
2. Previous "Lack of Candor"
Comments Received
One commenter also included an extensive description of ATF's "prior lack of
candor," including instances where ATF purportedly (1) committed "institutional
perjury" before the courts in the context of criminal prosecutions and supporting
probable-cause showings for search warrants; (2) committed deception and delayed

112

responding with respect to congressional inquiries regarding NFRTR inaccuracies as well
the "Fast and Furious" investigation; and (3) misled the public about the accuracy of the
NFRTR. According to the commenter, these episodes highlight a pattern of procedural
irregularities that should draw further scrutiny of this rulemaking.
Department Response
These comments are beyond the scope of this rulemaking, but the Department
notes that ATF has committed available resources to develop the NPRM and respond to
comments as part of the rulemaking process. In developing this rulemaking and
responding to comments, ATF has followed all established procedures and complied with
all relevant policies and requirements.
3. 90-Day Public Comment Period
Comments Received
One commenter asserted that the agency failed to provide the statutorily mandated
90-day public comment period. The commenter relied on an online article that
"detail[ed] the trials and tribulations of trying to find the appropriate docket," given that
some commenters indicated that they encountered a "Comment Period Closed"
notification on the FederalRegister.gov website when the NPRM was published on March
29, 2018. The author of the online article said that he submitted an inquiry to ATF
asking why the comment period appeared closed when it should have been open through
June 27, 2018, and why the website, at various times, depicted different numbers for the
amount of comments ATF received. The author's description of events concluded by
noting that he received a response from ATF with a specified weblink to Regulations.gov
where he could submit a comment but that none of his comments submitted were visible

113

on the website. Relying primarily on this online account, the commenter asserts that ATF
did not disclose this weblink to the public and that numerous people believed that the
comment period was closed from the very beginning of the comment period and were
therefore precluded from submitting comments. The commenter therefore believes that
the comment period should be extended because A TF did not permit the statutorily
mandated 90-day comment period.
Department Response
The Department acknowledges that upon publication of the NPRM on March 29,
2018, there was some confusion within the first 24 to 48 hours about submitting
comments through the Federal eRulemaking Portal (www.Regulations.gov), which is
managed and maintained by a third-party host. ATF was in touch with the managers of
the Federal eRulemaking portal, and relayed an explanation of these technical issues to
the author of the online article in two subsequent emails dated April 2 and April 3, 2018.
However, there is no evidence that the proposed rule was not available for public
comment for the 90-day comment period. On the contrary, ATF received numerous
comments from the very beginning of the comment period.
ATF explained to the author of the article that on March 29, 2018, when the
comment period opened for the NPRM, the link for submitting comments to the NPRM
had been inadvertently connected to the Regulations.gov Docket ID number 2018-00010001, which had been used by the Regulations.gov website for the ANPRM comment
period, December 26, 2017, through January 25, 2018. On March 29, 2018, the same day
the proposed rule was published in the Federal Register, individuals were able to and did
submit comments for the NPRM even though it was linked to the Docket ID used for the

114

ANPRM. Realizing that the link for the NPRM should not have been listed under the
ANPRM Docket ID, a new Docket ID number (2018-0002-0001) was created for the
NPRM. These Docket ID numbers are created by the third-party managers of
Regulations.gov for purposes of the website. ATF uses its own docket number, 2017R22, as seen in the text of the ANPRM and NPRM.
Once the third-party managers of Regulations.gov created a new Docket ID
number for the NPRM with a "Comment Now" feature, they eliminated the ability to
submit NPRM comments under the old ANPRM Docket ID. The Department
acknowledges that there was some confusion because there was a brief period on March
29, 2018, during which the ANPRM link (2018-0001-0001) was prominently situated on
the homepage of the Regulations.gov website even though that link was no longer able to
accept comments for the NPRM. Despite the brief prominence of the old ANPRM
Docket ID on the Regulations.gov website, the public had the ability to submit comments
through the Federal eRulemaking Portal for the NPRM at all times, as a simple search for
"bump stock" in the main search bar on Regulations.gov during this time would have
displayed the link for the new NPRM Docket ID, which was active and accepting
comments. Moreover, some individuals confused about how to comment on
Regulations.gov called ATF's Office of Regulatory Affairs, which was able to assist
them.
A TF also responded to the author's inquiry regarding the discrepancy in the
numbers showing the amount of comments received. Over the weekend of March 31,
2018, the third-party managers of Regulations.gov transferred all comments submitted for
the NPRM through the ANPRM Docket ID to the new NPRM Docket ID. ATF was

115

informed that the number of comments displayed on Regulations.gov updated only once
a day and therefore would harmonize over the next few days as ongoing system
maintenance occurred. Ultimately, the website depicting the amount of comments
received reflects all comments received since March 29, 2018, the beginning of the
comment period.
To answer the author's inquiry as to why his comments submitted were not
visible on Regulations.gov, ATF reminded the online author that Part VII.C of the
NPRM, which described the three methods for submitting public comments, informed the
public that comments submitted through Regulations.gov "will be posted within a few
days of being submitted. However, if large volumes of comments are being processed
simultaneously, ... comment[s] may not be viewable for up to several weeks." Since the
beginning of the comment period, ATF received a high volume of comments and, as
forewarned, there was a delay between the time comments were submitted and when they
became viewable on the website, assuming the comment met the posting guidelines
stated in Part VII.A of the NPRM. By April 3, 2018, two of the online author's
comments were visible on Regulations.gov, and the agency provided him with direct
weblinks to his comments.
Accordingly, the Department disagrees that the agency failed to provide the
statutorily mandated 90-day public comment period. Moreover, the Department notes
that the Federal eRulemaking Portal is one of the three methods available for the public
to submit comments during the 90-day comment period. Therefore, the public also had
the ability to submit comments via mail or facsimile during the entire 90-day period.

116

The Department believes the numerous examples provided by the commenter of
cases in which Federal agencies extended comment periods are inapplicable to this
rulemaking. The specific scenarios the commenter listed were apparently all the result of
the lapse in government funding that occurred in October 2013. At that time, agencies
were largely unstaffed, and insufficient personnel were available to process the
comments. This rulemaking has not involved similar difficulties.
4. Request for Public Hearing
Comments Received
A few commenters requested a hearing pursuant to the NPRM because they want
the opportunity to be heard before ATF prescribes any rule. One commenter stated that
18 U.S.C. 926(b) requires ATF to hold a public hearing when such is requested because
the statute provides that the Attorney General "shall afford interested parties opportunity
for hearing, before prescribing ... rules and regulations [under 18 U.S.C. ch. 44]."
Department Response
The Department is not persuaded that a public hearing is necessary or appropriate
in connection with this rulemaking. The Department believes that a comprehensive
public record has already been established through the comment process, which
generated over 186,000 comments, some of which included substantial discussions of the
rulemaking. The Department does not believe that a public hearing would meaningfully
add data or information germane to the examination of the merits of the proposal or
would provide substantive factual information that would assist the Department in
improving the rule in material ways. Furthermore, the Department believes that it has
made changes to this rule and included clarifications in the preamble that address the

117

important issues raised by parties who requested a hearing. In light of all the
circumstances, a public hearing is unnecessary.
The Supreme Court has held that it is not necessary for an agency to hold a public
hearing on a rulemaking simply because it receives a request for one. In both United

States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742 (1972), and United States v.
Florida East Coast Railway, 410 U.S. 224 (1973), the Court established the rule that it is
necessary to examine the particular statute involved when determining whether noticeand-comment procedures under 5 U.S.C. 553 are available or, alternatively, whether there
is a right to a formal hearing. In general, unless a statute specifically provides for rules to
be made on the record after a hearing, the Federal courts have held that the informal
rulemaking procedure is applicable. Thus, even statutory language such as "due notice
and opportunity for a public hearing," and "opportunity for hearing," have been held to
mandate only informal procedures under 5 U.S.C. 553. See 3 Administrative Law 16.03
(2018).
One Federal court specifically addressed the language in 18 U.S.C. 926(b), on
which one commenter relied, and rejected the commenter's position. In that case, the
plaintiff contended "that all of the regulations must be invalidated because the Secretary
failed to follow the procedures mandated in FOPA by refusing to afford interested parties
an opportunity for an oral hearing." However, the court held that the agency provided an
"opportunity" for a hearing even though it decided against an oral hearing. The court
wrote:
FOPA contains no provision guaranteeing interested parties the right to an oral
hearing .... It is well-settled that the requirement of a hearing does not necessitate
that the hearing be oral. Here, the Secretary, pursuant to regulation, reserved for
himself the right to determine whether an oral hearing should be held. He
118

ultimately determined that an oral hearing was unwarranted, but did provide
interested parties with the opportunity to submit written comments. This is all the
hearing requirement in § 926(b) demands.

Nat'! Rifle Ass'n v. Brady, 914 F.2d 475,485 (4th Cir. 1990) (citations omitted). Here,
the Department has made the same determination that an oral hearing is unnecessary.

V. Final Rule
This final rule adopts, with minor changes, the proposed amendments to the
definition of"machine gun" in 27 CFR 447.11, 478.11, and 479.11, which include
clarification of the meaning of "automatically" and "single function of the trigger" and
clarification that bump-stock-type devices are machineguns. The Department accordingly
determined that persons in possession of bump-stock-type devices must destroy or
abandon the devices.
In response to comments received and discussed in Part IV, the Department added
employees of maimfacturers and one additional manufacturer to the populations
potentially affected by this rule, and incorporated sales tax of $19.00 per bump-stocktype device as part of the economic analysis. Also, the Department considered additional
alternatives and inserted an 0MB Circular A-4 Accounting Statement for clarity.

VI. Statutory and Executive Order Review

A. Executive Orders 12866, 13563, and 13771
Executive Orders 13563 (Improving Regulation and Regulatory Review) and
12866 (Regulatory Planning and Review) direct agencies to assess the costs and benefits
of available regulatory alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic, environmental,
public health, and safety effects, distributive impacts, and equity). Executive Order

119

13563 emphasizes the importance of quantifying both costs and benefits, reducing costs,
harmonizing rules, and promoting flexibility. Executive Order 13771 (Reducing
Regulation and Controlling Regulatory Costs) directs agencies to reduce regulation and
control regulatory costs. This final rule is expected to have an impact of over $100
million in the first year of this regulatory action. Details on the estimated costs of this
final rule can be found in the rule's economic analysis below.
The Attorney General has determined this rule is a "significant regulatory action"
that is economically significant under section 3(f)(l) of Executive Order 12866 because,
as discussed, the rule will have an annual effect on the economy of $100 million or more.
Accordingly, the rule has been reviewed by the Office of Management and Budget. This
rule is a significant regulatory action that clarifies the meaning of the statutory definition
of machinegun and reflects the public safety goals of the NFA and GCA. Further, this
rule is a regulatory action subject to Executive Order 13771. See 0MB, Guidance

Implementing Executive Order 13771, Titled "Reducing Regulation and Controlling
Regulatory Costs" (Apr. 5, 2017).
This final rule is intended to interpret the definition of "machinegun" within the
NFA and GCA such that it includes a bump-stock-type device, i.e., a device that allows a
semiautomatic firearm to shoot more than one shot with a single pull of the trigger by
harnessing the recoil energy of the semiautomatic firearm to which it is affixed so that the
trigger resets and continues firing without additional physical manipulation of the trigger
by the shooter.

120

Accounting Statement
Table 1 provides the annualized and unquantified costs and benefits to this final
rule. These costs are annualized and discounted at 3% and 7%.
Table 1. 0MB Circular A-4 Accounting Statement

Category

Primary
Estimate

Minimum
Estimate

Midrange
Estimate

Source

Benefits
Annualized monetized
benefits (discount rate in
parentheses)

Annualized monetized
costs (discount rate in
parentheses)

NIA

(7%)

NIA

(7%)

NIA

(3%)

Unquantified Benefits

(7%)

NIA

(3%)

NIA

(3%)

NIA

• Limit 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
Costs

(3%)

Qualitative costs
(unquantified)

(7%)

$35.0
mil
$32.8
mil

(7%)

$28.9
mil

(3%)

$27.6
mil

Final
Rule

Final
Rule

(7%)

$32.0
mil

Final
Rule

(3%)

$31.2
mil

Final
Rule

• Potential loss of wages for employees of bumpstock-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-stocktype devices
Transfers

Final
Rule

Annualized monetized
transfers: "on budget"

0

0

0

Final
Rule

From whom to whom?

NIA

NIA

NIA

None

121

Annualized monetized
transfers: "off-budget"

0

0

0

Final
Rule

From whom to whom?

NIA

NIA

NIA

None

Miscellaneous Analysis/
Effects

Category

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
Agencies take regulatory action for various reasons. One of the reasons is to
carry out Congress's policy decisions, as expressed in statutes. Here, this rulemaking
aims to apply Congress's policy decision to prohibit machineguns. Another reason
underpinning regulatory action is the failure of the market to compensate for negative
externalities caused by commercial activity. A negative externality can be the byproduct
of a transaction between two parties that is not accounted for in the transaction. This
final rule is addressing a negative externality. The negative externality of the commercial
sale of bump-stock-type devices is that they could be used for criminal purposes. This
poses a public safety issue that the Department is trying to address.

Summary of Affected Population, Costs, and Benefits
Table 2 provides a summary of the affected population and anticipated costs and
benefits to promulgating this rule.

122

Table 2. Summary of Affected Population, Costs, and Benefits
Category
Applicability

Affected Population

Total Quantified Costs
to Industry, Public, and
Government (7%
Discount Rate)
Unquantified Costs

Affected Populations, Costs, and Benefits
• 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
• 1 manufacturer of bump-stock-type devices
• 2,281 retailers of bump-stock-type devices
• Owners and future consumers of bump-stock-type
devices
$245.5 million present value over 10 years
•
• $35.0 million annualized

•
•
•

Unquantified Benefits

•
•

•
•

Potential loss of wages for employees of bump-stocktype 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
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

123

Difference

Description of
Changes

Employees of
bump-stock-type
device
manufacturers

NIA

Applicability
Cost of BumpStock-Type
Devices
Destruction

Future Sales
Government Cost
Amnesty or
"grandfathering"
Licensing and
background
checks
Remuneration

Medical
exemption
Future production
and sales

2 manufacturers

$301
$5.4 million

1 manufacturer

Adding
employees
of bumpstock-type
device
manufacturers

Subtracted
1

$320 $19
$3.9
million
$9.4 million

$14.1
$198.9 million million
$1.3
$1.3 million million
$0
Alternatives
This alternative was rejected because since the
passage of 18 U.S.C. 922(0), amnesty registration
of machineguns is not legally permissible.
This alternative was rejected because only
Congress can add a new class of firearm and
impose licensing or acquisition requirements on
them.
$213.0 million

This alternative was rejected because only
Congress has the authority to offer monetary
compensation.
This alternative was rejected because neither the
NF A nor the GCA provides for medical
exemptions to acquire a firearm. Only Congress
can add medical exemptions.
This alternative was rejected because ATF does
not have the authority to restrict only the future
manufacture or sale of bump-stock-type devices.

124

Per public
comment, ATF
included
employees of
manufacturers
qualitatively
Based on
publicly
available
information
Per public
comment, ATF
included State
and local taxes
Change in
policy
Change from 2
large retailers
selling bumpstock-type
devices to 1
Change in
policy

Per public
comment

Per public
comment
Per public
comment

Per public
comment
Per public
comment

This alternative was rejected because ATP lacks
authority to implement it, as all devices
Quota
determined to be machineguns are prohibited
across the board.
This alternative was rejected because excise tax is
Instituting a tax
regulated by statute and only Congress can
determine the amount of excise tax on an item.
This alternative was rejected because improved
Improved security security must be paired with reasonable
at mass events
regulations to increase public safety and reduce
violent crime.
This alternative was rejected because ATP has
been delegated authority to issue rules to
Congressional
implement the NPA and GCA. This action will
legislation
not prevent Congress from taking action on
bump-stock-type devices.
This alternative was rejected because ATP
Leave to States to prioritizes public safety and preventing crime.
regulate
This action will not prevent States from taking
action on bump-stock-type devices.
This alternative was rejected because training and
Improved law
equipment must be paired with reasonable
regulatory efforts to increase public safety and
enforcement
reduce violent crime.

Per public
comment
Per public
comment

Per public
comment

Per public
comment

Per public
comment

Per public
comment

Affected Population
The populations affected by this rule are manufacturers of bump-stock-type
devices, employees of bump-stock-type device manufacturers, retailers who sell them
either in brick-and-mortar stores or online, and individuals who have purchased or would
have wanted to purchase bump-stock-type devices. The number of entities and
individuals affected are as follows:
•
•

1 manufacturer
2,281 retailers

125

•
•

An uncertain number of individuals who have purchased bump-stock-type devices
or would have purchased them in the future 15
An estimated 22 employees who were employed by one manufacturer, based on
public comments 16
Because many bump-stock-type devices-including those ATF addressed in

classification letters between 2008 and 2017-have not been subject to regulation under
the GCA, ATF does not keep track of manufacturers or retailers of bump-stock-type
devices, nor does ATF keep track or maintain a database of individuals who have
purchased bump-stock-type devices. Therefore, the affected population of manufacturers
and retailers is an estimate and based on publicly available information and, with respect
to retailers who are also Federal firearms licensees (FFLs), is also based on ATF's
records in the Federal Firearms Licensing System.
Based on publicly available information and comments on the NPRM, ATF
estimates that since 2010, as many as seven domestic bump-stock-type device
manufacturers have been in the marketplace, but due to patent infringement litigation,
only three remained in the market. However, it appears two have ceased manufacturing
bump-stock-type devices since publication of the NPRM due their inability to obtain
liability insurance. For the estimate of the number of retailers, ATF filtered all FFLs for
a list of potential sellers. While there are approximately 80,000 FFLs currently licensed,
only certain types of FFLs sell firearms to the public. ATF first removed FFLs that do
not sell firearms to the public. Next, since not all FFLs sell firearm accessories, ATF
needed to estimate the number that do sell accessories. ATF assumed that FFLs that are

15

Note that many commenters assumed that each person who owns a bump-stock-type device owns one
device. This overestimates the number of owners because owners of such devices may own more than one,
as evidenced by the Las Vegas shooter, who allegedly owned at least 12.
16
Regulations.gov, Docket ID: ATF-2018-0002-16668, available at
https://www.regulations.gov/document?D=ATF-2018-0002-16668 (last visited Nov. 16, 2018).

126

likely to sell bump-stock-type devices also have websites. ATF ran a query on the FFL
database and found that of those that sell firearms to the public, 2,270 have websites.
Because sellers of firearm accessories do not necessarily sell firearms, ATF also
performed an online search and found an additional 11 retailers who sell firearm
accessories, but not firearms. Adding these two totals together, ATF estimates that there
are 2,281 retailers of bump-stock-type devices.
Because there are no records of individuals who have purchased firearm
accessories, ATF does not have an estimated number of individuals who will be affected
by this final rule. Although ATF lacks data on the number of individuals who have
purchased bump-stock-type devices, ATF has some information from one manufacturer
and four retailers on the volume of sales of such devices. Based on these reported
amounts, ATF estimates that the number of bump-stock-type devices that were purchased
during the 8-year period beginning in 2010 ranges from 35,000 per year as a low estimate
to 75,000 per year as the high and primary estimate. ATF used a public commenter's
estimate of 400,000 total devices in circulation as a third estimate. For further
information on the methodology of these estimates, please review the analysis regarding
"Costs" below.
Costs
There are four primary sources of costs from this rule. First, for owners of bumpstock-type devices, there will be a lost value from no longer being able to possess or use
the devices. Second, there will be a lost value from future sales of the devices. Third,
there is a disposal cost associated with the need to destroy the devices or abandon them at
the nearest ATF office. Finally, there will be a potential loss of wages from employees

127

losing jobs from loss of manufacturing; however, the extent to which they will be unable
to find replacement jobs is speculative.
Manufacturing and startup cost
Commenters suggested that ATF overlooked the capital expenses to start up a
company to manufacture bump-stock-type devices. The Department considered the
capital expenses for manufacturers. However, in light of the Las Vegas shooting and
potential crowding of additional manufacturers, the Department determined that the
potential for manufacturers to continue business in a potentially saturated market was
doubtful. Furthermore, the Department has already calculated the foregone return on
investment when the Department considered foregone production, so accounting for
capital expenses would be double counting of expenditures. Therefore, the viability that
these businesses will be successful is speculative and the capital expenses that they
incurred are a sunk cost for those who put in the expense.
Cost to the public for loss of property
One reason individuals purchase bump-stock-type devices is so that they can
simulate automatic firing on a semiautomatic firearm. Commenters noted a variety of
purposes for which bump-stock-type devices have been advertised and used, including
for recreation and fun, assisting persons with mobility issues in firing quickly, selfdefense, killing invasive pig species, and target practice (although, as some commenters
observed, bump-stock-type devices impede firing accuracy). After implementation of
this final rule, bump-stock-type devices that meet the definition of "machinegun" under
the NF A and GCA cannot be lawfully possessed because the pertinent provision of the
GCA, 18 U.S.C. 922(o), prohibits persons from possessing a machinegun unless it was

128

lawfully possessed before the effective date of section 922(0). Bump-stock-type devices
currently possessed by individuals will have to be destroyed or abandoned prior to the
effective date of this regulation.
The lost value from no longer being able to use or purchase bump-stock-type
devices will depend on the volume of sales in the market and the value that consumers
place on the devices. ATF has limited information about the market for bump-stock-type
devices. ATF first developed an estimate of the number of bump-stock-type devices in
the marketplace based on information on retail sales provided in response to the ANPRM.
One ANPRM commenter estimated that more than 400,000 bump-stock-type devices
may have been sold. Based on publicly available information, A TF estimates that in the
first two years that bump-stock-type devices were in the market, approximately 35,000
were sold per year. 17 However, after 2011, other manufacturers entered the market and
there is no available information regarding the total number of bump-stock-type devices
manufactured. ATF is using publicly available information on manufacturing and
combining it with the information on retail sales to estimate a range of the number of
bump-stock-type devices in the marketplace.
One retailer stated that it sold an average of 4,000 to 5,000 bump-stock-type
devices per year. 18 One commenter indicated that one retailer sold 3,800 bump-stocktype devices annually, one sold 60 per year, and one sold approximately 5-10 per year. 19

17

Donnie A. Lucas, Firing Up Some Simple Solutions, Albany News (Dec. 22,201 I),
http://www.thealbanynews.net/archives/2443.
18
Based on an internal survey of large retailers.
19
Regulations.gov, Docket ID: ATF-2018-0001-2 7509, https://www.regulations.gov/document?D=ATF2018-0001-27509 (last visited on Nov. 16, 2018); Regulations.gov, Docket ID: ATF-2018-0001-0433,
https://www.regulations.gov/document?D=A TF-2018-0001-0433 (last visited on Nov. I 6, 2018);
Regulations.gov, Docket ID: ATF-2018-0001-0128, https://www.regulations.gov/document?D=ATF-20180001-0128 (last visited on Nov. 16, 2018).

129

For the purposes of this regulatory analysis (RA), ATF assumes that a large retailer has

°

sold 4,400, a midrange retailer has sold 60, and a small retailer has sold 8. 2 For the
purposes of this analysis, ATF assumes the number ofretailers by size are as follows:
•
•
•

4 large * 4,400 annual sales
755 midrange * 60 annual sales
1,511 small * 8 annual sales

The number of large retailers is a known number. As stated in the Affected
Population section above, based on ATF' s internal database and online research, the
remaining number ofretailers is 2,270. For the purposes of this RA, ATF estimated that
one-third of the remaining retailer population are midrange retailers, and the remaining
1,511 are small retailers. Using these estimated numbers of retailers and annual sales by
size ofretailer, ATF estimated annual sales of about 75,000 [( 4

* 4,400) + (755 * 60) +

(1,511 * 8)].
ATF next developed an estimate of the number of bump-stock-type devices in the
United States based on information about the number of bump-stock-type devices
manufactured. Based on publicly available information, ATF estimates that
approximately 35,000 bump-stock-type devices were sold in 2010. 21 Only in 2012 did
other manufacturers enter the marketplace. For the purposes of this RA, ATF assumes
that in the first two years of production, the one manufacturer produced the same 35,000
in years 2010 and 2011. ATF has two sets of production estimates. Because no
information is otherwise known about the production of bump-stock-type devices, ATF
assumes that the low estimate of annual bump-stock-type device production is a constant

°

2

For a large retailer the average sales were 4,400 = (3,800 + 5,000) I 2. For a small retailer, the average
sales were 8 = (5 + 10) / 2.
21
Lucas, supra note 17.

130

35,000, based on the one data point. As stated earlier, a public commenter provided an
estimate of 400,000 bump-stock-type devices currently in circulation. To account for
how these were purchased over the last 8 years, ATF also assumed the same 35,000
production in the first 2 years, but spread out the remaining 330,000 over the remaining 6
years, or about 55,000 per year. However, there were public comments that stated how
many bump-stock-type devices were sold by that retail.er. Using the retail sales
information, ATF developed a third, higher estimate reflecting that when the other
manufacturers entered the market, the number of bump-stock-type devices sold on the
market annually could have been 75,000.
The high estimate is ATF's primary estimate because ATF knows that there was
an increase in production starting in 2012. In 2012, there were other manufacturers who
entered the market, and the first manufacturer increased production at some point
thereafter. Furthermore, the primary estimate includes information provided by retailers
as a more comprehensive outlook on the overall production numbers. For the purposes of
this analysis, ATF assumes that both the increase in production and the market entry of
other manufacturers all occurred in 2012. Table 4 provides the breakdown of production
for the low estimate, public comment estimate, and primary estimate.
Table 4. Number of Bump-Stock-Type Devices Produced, Based on Manufacturer and
Retail Sales

Year

Public Comment
Primary Estimate
Low Estimate
Estimate
2010
35,000
35,000
35,000
2011
35,000
35,000
35,000
55,000
2012
75,000
35,000
2013
55,000
35,000
75,000
55,000
2014
75,000
35,000
131

2015
2016
2017
Total

35,000
35,000
35,000
280,000

55,000
55,000
55,000
400,000

75,000
75,000
75,000
520,000

In other words, the number of bump-stock-type devices held by the public could
range from about 280,000 to about 520,000.
A TF does not know the production cost of bump-stock-type devices, but for the
purposes of this RA, ATF uses the retail sales amounts as a proxy for the total value of
these devices. For devices that have already been sold, there are two countervailing
effects that affect the value of the devices. There may have been some depreciation of
the devices since they were originally purchased, resulting in a value somewhat reduced
from the retail price. On the other hand, some consumers may have been willing to pay
more than the retail price for a bump-stock-type device, and for these individuals the
devices would have a higher valuation than the retail price. Both of these effects are
difficult to estimate, and here ATF assumes that the retail sales price is a reasonable
proxy for the value of the devices.
The primary manufacturer of bump-stock-type devices sells them at a price of
$179.95 to $425.95. 22 For the purposes of this RA, ATF estimates that the average sale
price, including State and local taxes, for these bump-stock-type devices was $320.00
during the first two years they were sold. In 2012, at least one other manufacturer
entered the market and started selling its devices at the rate of $99. 99, making the overall

22

Slide Fire AR-15 Bump Fire Stocks (archived page on Jan. 28, 2017),
https://web.archive.org/web/20170128085532/http:/lwww .slidefire.com/products/ar-platform (last visited
Nov. 28, 2018).

132

prices for these devices lower. 23 For the purposes of this RA, ATF assumes that the
average sale price, including State and local taxes, for bump-stock-type devices from
2012 to 2017 was $213.00. Based on these costs, multiplied by the number ofbumpstock-type devices in the market, Table 5 provides the sales value that the public has
spent on these devices over the course of the last eight years.
Table 5. Amount Spent on Bump-Stock-Type Devices (Undiscounted)
Year
2011
2012
2013
2014
2015
2016
2017
Total

Low Estimate Midrange Estimate Primary
$11,214,896
$11,214,896 $11,214,896
$11,214,896
$11,214,896 $11,214,896
$7,470,511
$11,739,374 $16,008,237
$7,470,511
$11,739,374 $16,008,237
$7,470,511
$11,739,374 $16,008,237
$7,470,511
$11,739,374 $16,008,237
$7,470,511
$11,739,374 $16,008,237
$59,782,345
$81,126,661 $102,470,977

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

Year
2011
2012
2013

Undiscounted
$11,214,896
$11,214,896
$16,008,237

23

3%
$13,001,138
$12,622,464
$17,492,633

7%
$15,729,472
$14,700,441
$19,610,779

Bump Fire Systems (archived page on Feb. 21, 2015),
https://web.archive.org/web/20150221050223/http://bumpfiresystems.com/ (last visited Nov. 28, 2018).

133

2014
2015
2016
2017
Total
Annualized Cost

$16,008,237 $16,983,139 $18,327,831
$16,008,237 $16,488,484 $17,128,814
$16,008,237 $16,008,237 $16,008,237
$14,960,969
$16,008,237 $15,541,978
$102,470,977 $108,138,073 $116,466,542
$15,404,959 $19,504,391

Because these purchases occurred in the past, ATF's discount years start at -5 and
increase to Oto account for the Executive Order 13 771 standard that costs be presented in
2016 dollars. With these assumptions, ATF estimates that the annualized, discounted
amount spent on bump-stock-type devices was $15.4 million and $19.5 million at 3% and
7%, respectively.
Based on the same discounting formula, A TF estimates that the total undiscounted
cost for the low estimate is $59. 7 million, and the total discounted values are $64.1
million and $70.6 million at 3% and 7%, respectively. The annualized values for the low
estimates of the total number of bump-stock-type devices sold are $9.1 million and $11.8
million at 3% and 7%, respectively. For the 400,000-unit estimate provided by the public
commenter, the total undiscounted amount is $81.1 million, and the total discounted
values would be $86.1 million and $93.5 million at 3% and 7%, respectively. The
annualized values for the 400,000-unit sales estimate are $12.3 million and $15.7 million
at 3% and 7%, respectively.
Forgone future production and sales
ATF has estimated the lost production and lost sales that will occur in the 10
years after the implementation of this final rule. These estimates take into account lost
revenue from manufacturers and retailers. ATF does not parse out manufacturing and
retail sales, in order to limit double counting. In order to do this, A TF needed to predict
134

the number of devices that would have been sold in the future in the absence of a rule.
Such a prediction should take account of recent expected changes in the demand for and
supply of bump-stock-type devices. For example, based on a survey, three of the four
known, large former retailers of bump-stock-type devices no longer sell bump-stock-type
devices as a result of the Las Vegas shooting, nor do they intend to sell them in the
future. Moreover, while ATF has estimated the number of bump-stock-type devices
manufactured since 2010, ATF is without sufficient information to estimate the number
of individuals who were interested in acquiring bump-stock-type devices prior to the Las
Vegas shooting but would no longer want them due to the shooting.
Another recent change affecting individuals' future purchases of bump-stock-type
devices is that certain States have already banned such devices. These States are
California, Connecticut, Delaware, Florida, Hawaii, Maryland, Massachusetts, New
Jersey, Rhode Island, Vermont, and Washington. 24 The effect of States' bans on
individuals' future purchases of bump-stock-type devices should not be attributed to this
final rule since these reductions in purchases will happen with or without the rule.
However, ATF was unable to quantify the impact of States' bans and thus was unable to
account for the future effects of these bans in the estimate of the effects of the final rule.
Based on previously mentioned comments from large retailers, A TF expects that,
even in the absence of this rule, some retailers would not sell bump-stock-type devices in
the future. In order to estimate the expected future reduction in demand for bump-stock-

24

Cal. Penal Code §§ 16930, 32900 (2018); 2018 Conn. Acts 18-29 (Reg. Sess.); Del. Code Ann. tit. I 1,
§ 1444(a)(6) (2018); Fla. Stat.§ 790.222 (2018); Haw. Rev. Stat.§ 134-8.5 (2018); Md. Code. Ann., Crim.
Law§ 4-305.1 (2018); Mass. Gen. Laws ch. 140, §§ 121, 131 (2018); N.J. Stat. Ann.§§ 2C:39-3(l), 2C:3990); 11 R.I. Gen. Laws § 11-47-8(d) (2018); Vt. Stat. Ann. tit. 13, § 4022 (20 I 8); 2018 Wash. Sess. Laws
ch. 7, pp. 196-220.

135

type devices as a result of the Las Vegas shooting, ATF assumes that the reduction of
sales by large retailers that has already occurred would be a reasonable estimate of the
future reduction of sales overall that would occur in the absence of this rule. In the
NPRM, ATF estimated that two of the four large retailers would remain in the market to
sell bump-stock-type devices. 83 FR at 13452. Since then, one of these remaining
retailers merged with one of the large retailers that opted not to sell bump-stock-type
devices, resulting in only one large retailer remaining in the market. For the purposes of
this regulatory analysis, it is estimated that the one large retailer that would otherwise
intend to keep selling bump-stock-type devices sells 4,400 of such devices annually.
Removing the effects of these three large retailers from the future market reduces ATF's
primary estimate of 74,988 in past annual production to an estimate of 62,084 (= 75,284
- 13,200) in annual sales that would have occurred in the future in the absence of this
rule. Table 7 provides the estimated breakdown of lost production and sales forgone due
to this rule.
Table 7. Forgone Production and Sales of Future Bump-Stock-Type Devices

Year
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027

No. of BumpStock-Type
Devices
62,084
62,084
62,084

Undiscounted
$19,893,303

3%
$19,313,886.10

$19,893,303
$19,893,303

62,084
62,084
62,084

$19,893,303
$19,893,303
$19,893,303

62,084
62,084
62,084
62,084

$19,893,303
$19,893,303
$19,893,303
$19,893,303

$18,751,345.73
$18,205,190.03
$17,674,941.77
$17,160,137.64
$16,660,327.81
$16,175,075.54
$15,703,956.84
$15,246,560.04
$14,802,485.47

136

7%
$18,591,871.67
$17,375,581.00
$16,238,860.74
$15,176,505.37
$14,183,649.88
$13,255,747.55
$12,388,549.11
$11,578,083.28
$10,820,638.58
$10,112,746.34

Total
Annualized
Cost

$169,693,906.98

$139,722,233.51

$24,173,981.19

$198,933,027

$23,398,969.82

Based on these estimates, ATF estimates that the undiscounted value of forgone
future sales over 10 years is $198.9 million, undiscounted, or $24.2 million and $23.4
million, annualized and discounted at 3% and 7%.
Disposal
This final rule requires the destruction of existing bump-stock-type devices. The
cost of disposal has several components. For individuals who own bump-stock-type
devices, there is a cost for the time and effort to destroy the devices or ensure that they
are destroyed by another party. For retailers, wholesalers, and manufacturers, there is a
cost of the time and effort to destroy or ensure the destruction of any devices held in
inventory. In addition, this final rule incorporates the option of abandoning bump-stocktype devices at an ATF office. Based on the response from commenters, this cost is taken
into consideration under the foregone sales section.
Individuals who have purchased bump-stock-type devices prior to the
implementation of this rule must destroy the devices themselves prior to the effective
date of the rule or abandon them at their local ATF office. Options for destroying the
devices include melting, crushing, or shredding in a manner that renders the device
incapable ofready restoration. Since the majority of bump-stock-type devices are made
of plastic material, individuals can use a hammer to break apart the devices and throw the
pieces away. Other destruction options that ATF has historically accepted include torch
cutting or sawing the device in a manner that removes at least ¼ inch of material for each

137

cut and completely severs design features critical to the functionality of the device as a
bump-stock-type device.
Current possessors are encouraged to undertake destruction of the devices.
However, current possessors also have the option to abandon bump-stock-type devices at
the nearest ATF office. Current possessors of bump-stock-type devices will have until
the effective date of the rule (90 days from date of publication in the Federal Register) to
comply. Additional information on the destruction of bump-stock-type devices will be
available on www.atf.gov.
Based on comments received on the ANPRM, unsellable inventory could be
worth approximately $35,000 per large retailer. One commenter, assumed to be a large
retailer, stated that its gross sales were $140,000. Another commenter assumed to be a
midrange retailer had gross sales of $18,000. No known sales were reported for a small
retailer. Based on the proportion of sales among the large, midrange, and small retailers,
ATF estimates that the amounts in existing inventory for each type of retailer are as
follows:
•

large retailer: $35,000;

•

midrange retailer: $4,500; and

•

small retailer: $74. 25

There were no comments on the NPRM about these assumptions or the methodology
used based on the ANPRM comments. Therefore, the analysis used to determine the cost
of unsellable inventory remains the same for this final rule.

25

Midrange: $4,500 = ($18,000 / $140,000)

* $35,000.
138

Small: $74 = (8 / 3,800)

* $35,000.

The commenter assumed to be a large retailer also commented that the
opportunity cost oftime needed to destroy existing inventory will be approximately $700.
ATF's subject matter experts estimate that a retailer could use a maintenance crew to
destroy existing inventory. To determine the hourly time needed to destroy existing
inventory, ATF used the $700 reported amount, divided by the loaded wage rate of a
building cleaning worker. ATF subject matter experts also suggest that existing packers
would be used for a midrange retailer and the minimum wage would be used for a small
retailer. A multiplier of 1.43 was applied to unloaded wage rates to account for fringe
benefits. 26 Table 9 provides the wages used for this analysis.
Table 9. Wage Series to Destroy Existing Inventory

Wage Series

Individual
Minimum
Wage Rate
Packers,
Packagers, and
Handlers
Retail
Salespersons
Building
Cleaning
Workers, All
Other

Series
Code

Unloaded
Wage
Rate

$13.60
Min
Wage
537064
412031

372019

$7.25

Loaded
Wage
Rate

Source
https://www.transportation.gov/sites/
dot.gov/files/docs/2016%20Revised
%20Value%20of%20Travel%20Tim
$13.60 e%20Guidance. pdf
https://www.bls.gov/opub/reports/mi
$10.40 nimum-wage/2016/home.htm

$13.07

https://www.bls.gov/oes/2016/may/oe
$16.84 s537064.htm
https://www.bls.gov/oes/2016/may/oe
$18.75 s412031.htm

$14.88

https://www.bls.gov/oes/2016/may/oe
$21.34 s372019 .htm

$11.74

26

BLS Series ID CMU2010000000000D, CMU2010000000000P (Private Industry Compensation =
$32.35) I (Private Industry Wages and Salaries= $22.55) = 1.43. BLS average 2016. U.S. Bureau of
Labor Statistics, https://beta. bls.gov/dataQuery/find?fq=survey: [cm ]&s=popularity: D.

139

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

Population
Individual
Retailer (Large)
Retailer (Midrange)
Retailer (Small)

Incremental Cost Hourly Burden Opportunity Cost of Time
$3.40
0.25
$13.60
$699.95
$21.34
32.8
0.45
$7.58
$16.84
$4.88
$19.51
0.25

As stated earlier, ATF estimates that there are 520,000 bump-stock-type devices
already purchased by the public. For the purposes of this analysis, we estimate the
following calculations to destroy bump-stock-type devices:
•

Individual: $1.3 million= (1.8 million* 75%)

•

Retailer (Large): 3 retailers* $699.95 opportunity cost ohime + ($35,000
inventory* 75%)

•

Retailer (Midrange): 569 retailers* $7.58 opportunity cost of time+ ($4,500
inventory* 75%)

•

Retailer (Small): 1139 retailers* $4.88 opportunity cost of time+ ($74 inventory

* 75%)
Based on the opportunity cost of time per bump-stock-type device, and the
estimated opportunity cost of time per retailer, ATF provides the cost to destroy all
existing bump-stock-type devices in Table 11.

140

Table 11. Cost of Existing Inventory and Opportunity Cost of Time to Destroy Existing
Devices by Individual and Retailer Size

Original Cost
Individual
$1,768,000
Retailer (Large)
$142,800
Retailer (Midrange) $3,421,252
Retailer (Small)
$116,279
Total Disposal Cost $5,448,330

Reduced Cost
$1,326,000
$80,850
$1,924,687
$66,176
$3,397,713

Net Change
$442,000
$61,950
$1,496,565
$50,103
$2,050,618

For those abandoning bump-stock-type devices, we estimate that 130,000
individuals, 1 large retailer, 138 midrange retailers, and 139 small retailers will abandon
them at their nearest ATF office. Table 12 provides the cost of gas, travel time, and
mileage to abandon them.
Table 12. Cost of Gas, Travel Time, and Mileage
Cost Item
Source
Rate
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 abandoned during leisure hours, A TF uses the
leisure wage rate of $13.60. ATF estimates that the cost to travel to ATF offices will be
$24.98 per trip= (13.60 leisure wage* 1.556 hours of weekend travel time)+ ($0.545
gas consumption* 7 miles traveled). For the purposes of this analysis, we estimate the
following calculations to destroy bump-stock-type devices:
•

Individual: 520,000 bump-stock-type devices * 25% * $24.98

•

Retailer (Large): (1 retailer*" $24.98 travel cost)+ ($35,000 inventory* 25%)

141

•

Retailer (Midrange): (190 retailers *$24.98 travel cost)+ ($4,500 inventory*
25%)

•

Retailer (Small): (379 retailers* $24.98 travel cost)+ ($74 inventory* 75%)

Table 13 provides the additional cost of abandoning bump-stock-type devices at ATF
offices.
Table 13. Disposal Cost to Abandon Bump-Stock-Type Devices at ATF Offices
Individual
$3,247,400
Retailer (Large)
$8,775
Retailer (Midrange)
$1,375,025
Retailer (Small)
$1,373,974
Total Cost to Abandon $6,005,174

We treat all costs of disposal of existing devices owned by individuals or held in
inventory by retailers or manufacturers as if they occur in 2018. Therefore, the disposal
costs of the rule in 2018 would include the total undiscounted value of existing stock of
bump-stock-type devices and the total cost of disposal from Tables 11 and 13 for the total
disposal cost of $9 .4 million.
Government costs
Because ATF allows bump-stock-type device owners to abandon these devices at
ATF offices, A TF incorporates the government cost to dispose of these devices. A TF
estimates that an agent at a GS-13 level will dispose of the device in 0.25 hours at a
loaded wage rate of $41.07 per hour. 27 ATF anticipates that it will cost $1.3 million to
destroy these devices in-house.

27

Office of Personnel Management, Salary Table 2018-GS, https://www.opm.gov/policy-dataoversight/pay-Ieave/salaries-wages/salary-tables/pdf/2018/GS_h.pdf.

142

Overall, ATF estimates that the total cost of this final rule would be $312.1
million over a 10-year period of future analysis. This cost includes the first-year cost to
destroy all existing bump-stock-type devices, including unsellable inventory and
opportunity cost of time. Table 14 provides the 10-year cost of this final rule.
Table 14. 10-Year Cost of Final rule
Year

7%
Undiscounted
3%
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
14,183,650
2022
19,893,303
17,160,138
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
10,112,746
2027
19,893,303
14,802,485
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 million, and the annualized discounted costs
would be $32.8 million and $35.0 million annualized at 3% and 7% respectively.
Cost Savings

ATF did not calculate any cost savings for this final rule.
Benefits

As reported by commenters, the purpose of this rule is to amend A TF regulations
to clarify that bump-stock-type devices are "machineguns" as defined by the NF A and
GCA. Additionally, a desired outcome of this rule is increased public safety. While
there has been only one known shooting involving bump-stock-type devices, banning
such devices could result in reduced casualties as a consequence of reducing incidents of
143

shootings involving a weapon fitted with a bump-stock-type device. A ban also could
result in less danger to first responders when responding to incidents, because it prevents
shooters from using devices that allow them to shoot semiautomatic firearms
automatically.

Alternatives
Alternative 1-No change alternative. This alternative would leave the
regulations in place as they currently stand. Since there would be no changes to
regulations, there would be no cost, savings, or benefits to this alternative.
Alternative 2-Patronizing a shooting range. Individuals wishing to experience
shooting a "full-auto" firearm could go to a shooting range that provides access to
lawfully registered "pre-1986" machineguns to customers, where the firearm remains on
the premises and under the control of the shooting range. A TF does not have the
information to determine which, where, or how many gun ranges provide such a service
and is therefore not able to quantify this alternative.
Alternative 3-0pportunity alternatives. Based on public comments, individuals
wishing to replicate the effects of bump-stock-type devices could also use rubber bands,
belt loops, or otherwise train their trigger finger to fire more rapidly. To the extent that
individuals are capable of doing so, this would be their alternative to using bump-stocktype devices.
Public comments from the NPRM suggested other alternatives:
1. Provide amnesty or "grandfathering." This alternative was rejected because
since the passage of 18 U.S. C. 922(o ), amnesty registration of machine guns is

144

not legally permissible; all devices determined to be machineguns are
prohibited except as provided by exceptions established by statute.
2. Provide licensing and background checks. This alternative was rejected
because only Congress can add a new class of firearm to the GCA and impose
licensing or acquisition requirements.on it.
3. Provide compensation for the destruction of the devices. This alternative was
rejected because only Congress has the authority to offer monetary
compensation.
4. Provide a medical exemption. This alternative was rejected because neither
the NF A nor the GCA provides for medical exemptions to acquire an
otherwise prohibited firearm. Only Congress can add medical exemptions.
5. Prohibit only future manufacture and sales. This alternative was rejected
because ATF does not have the authority to restrict only the future
manufacture or sale of bump-stock-type devices.
6. Provide a quota. This alternative was rejected because ATF lacks authority to
implement it, as all devices determined to be machineguns are prohibited
across the board.
7. Institute a tax. This alternative was rejected because ATF lacks authority to
establish excise taxes.
8. Improve security at mass events. This alternative was rejected because
improved security must be paired with reasonable regulations to increase
public safety and reduce violent crime.

145

9. Congressional legislation. This alternative was rejected because issuance of
this rule will not prevent Congress from taking action on bump-stock-type
devices.
10. Leave the issue to the States. This alternative was rejected because ATF is
responsible for implementing the NF A and GCA, Federal laws designed to
maintain public safety. Issuance of this rule will not prevent States from
taking action on bump-stock-type devices.
11. Improved law enforcement capabilities. This alternative was rejected because
while training and equipment may assist law enforcement efforts, they are not
a substitute for the Department's exercise of its public safety responsibility of
interpreting the NF A and GCA appropriately.
B. Executive Order 1313 2
This regulation will not have substantial direct effects on the States, the
relationship between the Federal Government and the States, or the distribution of power
and responsibilities among the various levels of government. Therefore, in accordance
with section 6 of Executive Order 13132 (Federalism), the Attorney General has
determined that this regulation does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement.
C. Executive Order 12988

This regulation meets the applicable standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988 (Civil Justice Reform).
D. Regulatory Flexibility Act (RFA)

146

Summary of Findings
ATF performed a Final Regulatory Flexibility Analysis of the impacts on small
businesses and other entities from the final rule. Based on the information from this
analysis, A TF found:
•

It is estimated that the remaining manufacturer will go out of business;

•

There are 2,281 retailers, of which most are estimated to be small;

•

There are no relevant government entities.

Final Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RF A) establishes "as a principle of regulatory
issuance that agencies shall endeavor, consistent with the objectives of the rule and of
applicable statutes, to fit regulatory and informational requirements to the scale of the
businesses, organizations, and governmental jurisdictions subject to regulation. To
achieve this principle, agencies are required to solicit and consider flexible regulatory
proposals and to explain the rationale for their actions to assure that such proposals are
given serious consideration." Pub. L. 96-354, § 2(b), 94 Stat. 1164 (1980).
Under the RF A, the agency is required to consider if this rule will have a
significant economic impact on a substantial number of small entities. Agencies must
perform a review to determine whether a rule will have such an impact. If the agency
determines that it will, the agency must prepare a regulatory flexibility analysis as
described in the RF A.
Under the RFA (5 U.S.C. 604(a)), the final regulatory flexibility analysis must
contain:
•

A statement of the need for, and objectives of, the rule;

147

•

A statement of the significant issues raised by the public comments in response to
the initial regulatory flexibility analysis, a statement of the assessment of the
agency of such issues, and a statement of any changes made in the proposed rule
as a result of such comments;

•

The response of the agency to any comments filed by the Chief Counsel for
Advocacy of the Small Business Administration in response to the proposed rule,
and a detailed statement of any change made to the proposed rule in the final rule
as a result of the comments;

•

A description of and an estimate of the number of small entities to which the rule
will apply or an explanation of why no such estimate is available;

•

A description of the projected reporting, recordkeeping, and other compliance
requirements of the rule, including an estimate of the classes of small entities that
will be subject to the requirement and the type of professional skills necessary for
preparation of the report or record; and

•

A description of the steps the agency has taken to minimize the significant
economic impact on small entities consistent with the stated objectives of
applicable statutes, including a statement of the factual, policy, and legal reasons
for selecting the alternative adopted in the final rule and why each one of the
other significant alternatives to the rule considered by the agency that affect the
impact on small entities was rejected.
The RF A covers a wide range of small entities. The term "small entities"

comprises small businesses, not-for-profit organizations that are independently owned
and operated and are not dominant in their fields, and governmental jurisdictions with

148

populations ofless than 50,000. 5 U.S.C. 601(3)-(6). ATF determined that the rule
affects a variety of large and small businesses (see the section below titled "A description
of and an estimate of the number of small entities to which the rule will apply or an
explanation of why no such estimate is available"). Based on the requirements above,
ATF prepared the following regulatory flexibility analysis assessing the impact on small
entities from the rule.
A statement of the need for, and objectives of, the rule
Agencies take regulatory action for various reasons. One of the reasons is to
carry out Congress's policy decisions, as expressed in statutes. Here, this rulemaking
aims to apply Congress's policy decision to prohibit machineguns. Another reason
underpinning this regulatory action is the failure of the market to compensate for negative
externalities caused by commercial activity. A negative externality can be the byproduct
of a transaction between two parties that is not accounted for in the transaction. This
final rule is addressing a negative externality. The negative externality of the commercial
sale of bump-stock-type devices is that they could be used for criminal purposes. This
poses a public safety issue, which the Department is trying to address.
A statement of the significant issues raised by the public comments in response to
the initial regulatory flexibility analysis, a statement of the assessment of the agency
of such issues, and a statement of any changes made in the proposed rule as a result
of such comments
Several commenters suggested that this rule will devastate companies that
manufacture bump-stock-type devices and the local communities that they employ. The
Department concurs that this rule will prevent manufacturers of bump-stock-type devices

149

from producing and selling them. Based on publicly available information, the
Department estimates that there is only one manufacturer actively producing and selling
such devices. For the purposes of this rule, it is considered a small business. Due to the
requirements of the NF A, there are no alternatives that are scalable by business size for
this rule.
Some commenters suggested that the RF A requires agencies to consider the
innovative impacts that small businesses have on the firearms market. ATF interprets the
RF A's usage of "innovation" in terms of regulatory approaches that the agency could use
to allow for small businesses to compete against non-small businesses. As there are no
non-small businesses that manufacture bump-stock-type devices, ATF was unable to
determine any regulatory approaches that would allow small manufacturers to compete
with non-small businesses with respect to manufacturing bump-stock-type devices.

The response of the agency to any comments filed by the Chief Counsel for
Advocacy of the Small Business Administration in response to the proposed rule,
and a detailed statement of any change made to the proposed rule in the final rule as
a result of the comments
There were no comments filed by the Chief Counsel for Advocacy of the.Small
Business Administration in response to the proposed rule. Therefore, no changes were
made to the proposed rule in the final rule as a result of comments.

A description of and an estimate of the number of small entities to which the rule
will apply or an explanation of why no such estimate is available
This rule would affect primarily manufacturers of bump-stock-type devices, FFLs
that sell bump-stock-type devices, and other small retailers of firearm accessories that
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have invested in the bump-stock-type device industry. Based on publicly available
information, there is one manufacturer affected. Of the known retailers, the large
retailers do not intend to continue selling bump-stock-type devices. There may be some
small retailers that would have intended to continue selling these devices had this final
rule not been promulgated and would thus be affected by this final rule. Based on the
information from this analysis, ATF found:
•

There is 1 manufacturer who is likely to be a small entity;

•

There are 2,270 retailers who are likely to be small entities;

•

There are no government jurisdictions affected by this final rule; and

•

There are no nonprofits found in the data.

A description of the projected reporting, recordkeeping and other compliance
requirements of the rule, including an estimate of the classes of small entities which
will be subject to the requirement and the type of professional skills necessary for
preparation of the report or record
There are no reporting or recordkeeping requirements for this final rule. The only
relevant compliance requirement consists of disposing of all existing inventory of bumpstock-type devices for small entities that carry them. There would not be any
professional skills necessary to record or report in this final rulemaking.

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A description of the steps the agency has taken to minimize the significant economic
impact on small entities consistent with the stated objectives of applicable statutes,
including a statement of the factual, policy, and legal reasons for selecting the
alternative adopted in the final rule and why each one of the other significant
alternatives to the rule considered by the agency which affect the impact on small
entities was rejected

Alternatives were considered in this final rule. Alternatives include making no
regulatory changes. ATF rejected this alternative because it would not be consistent with
ATF' s interpretation of the statutory term "machinegun." There were no other regulatory
alternatives to this proposal that ATF has been able to identify that accomplish the
objective of this final rule.
E. Small Business Regulatory Enforcement Fairness Act of 1996

This rule is a major rule as defined by section 251 of the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule is likely to be
considered major as it is economically significant and is projected to have an effect of
over $100 million on the economy in at least the first year of the rule.
F. Congressional Review Act

This rule is a major rule as defined by the Congressional Review Act, 5 U.S.C.
804. This rule is likely to be considered major as it is economically significant and is
projected to have an effect of over $100 million on the economy in at least the first year
of the rule's existence.

G. Unfunded Mandates Reform Act of 1995

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This rule will not result in the expenditure by State, local, and tribal governments,
in the aggregate, or by the private sector, of $100 million or more in any one year, and it
will not significantly or uniquely affect small governments. Therefore, no actions were
deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995,
Pub. L. 104-4, 109 Stat. 48.

H Paperwork Reduction Act of 1995
This final rule does not impose any new reporting or recordkeeping requirements
under the Paperwork Reduction Act, 44 U.S.C. 3501-3521.

Disclosure
Copies of the final rule, proposed rule, and comments received in response to the
proposed rule will be available for public inspection through the Federal eRulemaking
portal, http://regulations.gov, or by appointment during normal business hours at: ATF
Reading Room, Room lE-062, 99 New York Ave. NE, Washington, DC 20226;
telephone: [phone].

List of Subjects

27 CFR Part 447
Administrative practice and procedure, Arms and munitions, Chemicals, Customs
duties and inspection, Imports, Penalties, Reporting and recordkeeping requirements,
Scientific equipment, Seizures and forfeitures.

27 CFR Part 478
Administrative practice and procedure, Arms and munitions, Customs duties and
inspection, Exports, Imports, Intergovernmental relations, Law enforcement officers,

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Military personnel, Penalties, Reporting and recordkeeping requirements, Research,
Seizures and forfeitures, Transportation.

27 CFR Part 479
Administrative practice and procedure, Arms and munitions, Excise taxes,
Exports, Imports, Military personnel, Penalties, Reporting and recordkeeping
requirements, Seizures and forfeitures, Transportation.

Authority and Issuance
Accordingly, for the reasons discussed in the preamble, 27 CPR parts 447,478,
and 4 79 are amended as follows:

PART 447--IMPORTATION OF ARMS, AMMUNITION AND IMPLEMENTS OF
WAR
1. The authority citation for 27 CPR part 44 7 continues to read as follows:

Authority: 22 U.S.C. 2778, E.O. 13637, 78 FR 16129 (Mar. 8, 2013).
2. In§ 447.11, revise the definition of"Machinegun" to read as follows:

§ 447.11 Meaning of terms.

*

*

*

*

*

Machinegun. A "machinegun", "machine pistol", "submachinegun", or "automatic
rifle" is a firearm which shoots, is designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by a single function of the
trigger. The term shall also include the frame or receiver of any such weapon, any part
designed and intended solely and exclusively, or combination of parts designed and
intended, for use in converting a weapon into a machinegun, and any combination of
parts from which a machinegun can be assembled if such parts are in the possession or

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under the control of a person. For purposes of this definition, the term "automatically" as
it modifies "shoots, is designed to shoot, or can be readily restored to shoot," means
functioning as the result of a self-acting or self-regulating mechanism that allows the
firing of multiple rounds through a single function of the trigger; and "single function of
the trigger" means a single pull of the trigger and analogous motions. The term
"machinegun" includes a bump-stock-type device, i.e., a device that allows a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by
harnessing the recoil energy of the semi-automatic firearm to which it is affixed so that
the trigger resets and continues firing without additional physical manipulation of the
trigger by the shooter.

*

*

*

*

*

PART 478--COMMERCE IN FIREARMS AND AMMUNITION
3. The authority citation for 27 CFR part 478 continues to read as follows:

Authority: 5 U.S.C. 552(a); 18 U.S.C. 921-931.
4. In§ 478.11, revise the definition of "Machine gun" by adding two sentences at
the end of the definition, to read as follows:
§ 478.11 Meaning of terms.

*

*

*

*

*

Machine gun.

***

For purposes of this definition, the term "automatically" as it modifies "shoots, is

designed to shoot, or can be readily restored to shoot," means functioning as the result of
a self-acting or self-regulating mechanism that allows the firing of multiple rounds
through a single function of the trigger; and "single function of the trigger" means a

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single pull of the trigger and analogous motions. The term "machine gun" includes a
bump-stock-type device, i.e., a device that allows a semi-automatic firearm to shoot more
than one shot with a single pull of the trigger by harnessing the recoil energy of the semiautomatic firearm to which it is affixed so that the trigger resets and continues firing
without additional physical manipulation of the trigger by the shooter.

*

*

*

*

*

PART 479--MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN
OTHER FIREARMS
5. The authority citation for 27 CFR part 479 continues to read as follows:
Authority: 26 U.S.C. 7805.
6. In § 4 79 .11, revise the definition of "Machine gun" by adding two sentences at
the end of the definition, to read as follows:
§ 479.11 Meaning of terms.

*

*

*

*

*

Machine gun.

* * * For purposes of this definition, the term "automatically" as it modifies "shoots, is
designed to shoot, or can be readily restored to shoot," means functioning as the result of
a self-acting or self-regulating mechanism that allows the firing of multiple rounds
through a single function of the trigger; and "single function of the trigger" means a
single pull of the trigger and analogous motions. The term "machine gun" includes a
bump-stock-type device, i.e., a device that allows a semi-automatic firearm to shoot more
than one shot with a single pull of the trigger by harnessing the recoil energy of the semi-

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automatic firearm to which it is affixed so that the trigger resets and continues firing
without additional physical manipulation of the trigger by the shooter.

*

*

*

*

*

Approved:

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Matthew G. Whitaker
Acting Attorney General

tz/4(t8

Date

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