According to Comms Wiley Law
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has recently changed the manner in which it interprets the statutory and regulatory definition of “handgun,” thereby further limiting the types of firearms eligible for importation. These determinations are not public, so it is difficult for the regulated community to assess and track shifting agency positions.
The Gun Control Act at 18 U.S.C. § 922(l) broadly prohibits the importation of all firearms into the United States. However, so long as a firearm is not military surplus nor subject to the National Firearms Act, section 925(d)(3) provides a limited exception for those firearms considered by ATF to be “generally recognized as particularly suitable for or readily adaptable to sporting purposes.” Over the past half century, ATF has issued several studies and criteria on how it evaluates whether shotguns, rifles, or handguns qualify as “sporting” under the law. The handgun factoring test is the most straightforward of these, with a point tally system that rewards larger and bulkier handguns. If a handgun receives 75 or more points, it is considered “sporting” and approved for importation. However, there is no ATF-issued “sporting purpose” test for a firearm that fails to fit within the definition of handgun, rifle, or shotgun. Accordingly, ATF has long held that such a firearm is not importable.
Despite ATF previously stating that there is no limit to how long or heavy a handgun should be to qualify as “sporting” under section 925(d)(3), ATF private classification letters issued within the past few months indicate that the agency has shifted course by reinterpreting what constitutes a “handgun.” In company-specific letters, ATF takes the position that if a submitted firearm is too long or too heavy, it fails to meet the definition of “handgun” under the Gun Control Act, as it is not “designed to be held and fired by the use of a single hand.” The Firearms and Ammunition Technology Division (FATD) of ATF—which conducts importability evaluations—says that it is taking a subjective approach to the statute by allowing individual examiners to determine if he or she can fire the weapon with one hand without difficulty.
This approach is resulting in inconsistent determinations, of which the regulated community should take note. Within the past few months, at least one HK91 pistol-style submission as light as 8 pounds, with a barrel length of 8-3/4 inches and an overall length of 21-3/4 inches, has been determined to fall outside the definition of “handgun.” This is a change from previous determinations where firearms weighing over 8 pounds, with 20-inch barrels, and an overall length of approximately 31-1/2 inches were held by FATD to be “handguns.” Since the letters are not publicly available, it is impossible for regulated companies to know the full range of FATD’s determinations. This has serious implications for regulated businesses.
In some of the new letters, ATF has begun listing the following “objective design features” when making its evaluations:
- Incorporation of rifle sights;
- Utilization of “rifle caliber ammunition” (both 5.56mm and 7.62mm have been considered as such);
- Incorporation of “rifle-length barrel;”1
- The “weapon’s heavy weight;”
- Ability to accept magazines that range in capacity from 20 rounds to 100 rounds, “which will contribute to the overall weight of the firearm”; and
- Overall length of the weapon which “creates a front-heavy imbalance when held in one hand.”
However, ATF also noted in the most recent private ruling that the above design features are “neither binding on future classifications nor is any factor individually determinative[.]” ATF explained without elaboration that “the statutory and regulatory definitions provide the appropriate standard in classifying the firearm.” ATF concluded that “a firearm that is too large, too heavy or . . . otherwise not designed to be held and fired in one hand (as demonstrated by the objective features) cannot be a handgun under the statutory definition and cannot be subject to importation criteria governing handguns.” In light of ATF’s subjective and inconsistent analysis of size and weight, it is difficult to predict how the agency will classify any given firearm under this standard.