Comment on ATF 2021R-05
May 25, 2021
Legion,
Uncle Joe’s new ghost gun rule has been published in the federal register, and so the 90 day comment period begins. DD has made a comment submission form available at Ghost Gunner, and will publish one on this site as well.
Though we as an organization will submit a larger, official comment by letter, we share here an outline that you may adapt to your own purposes. Please do take the time to record your comment in opposition of this rule.
With its definitions of “partially complete receiver” and “readily,” ATF 2021R-05 would codify arbitrary and capricious classification standards. The vague definition of “partially complete receiver” contains still more vague definitions, like “clearly identifiable”, “unfinished component part of a weapon”, “critical stage of manufacture”, “sufficiently complete to function”, and “primordial state.” The new definition of “readily” contains so many factors, and of such ambiguous weight and meaning, that the test can only be meant to confuse and intimidate non-FFL entities before ATF’s awesome authority. The multi-factor test for “readily” amounts to lawless Caesarism, and invests the ATF Director with more power than Congress has authorized. ATF would like to legitimize its wholly arbitrary sample submission process– one which is not derived from the GCA, and which ATF emphasizes does not even obligate them to respond. This is a farcical and irregular process that lacks any pretense of Fifth Amendment protection, and, by literal definition, gives the Director unlimited discretion.
Did ATF examine relevant data?
No. ATF admits in this rule’s Regulatory Impact Analysis, Chapter 3, that it did not attempt to collect the relevant data on “partially complete” receiver and kit sales. ATF has no idea how much commerce will be affected and instead tauntingly asks reps from Ghost Gunner, by name, to share their own analysis.
Did ATF rely on factors Congress did not intend the agency to consider?
Yes. Congress explicitly states in Sec. 101 of the GCA: “it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with the respect to the acquisition, possession, or use of firearms..” and “this title is not intended to discourage the private ownership or use of firearms by law-abiding citizens.” ATF makes no analysis of how the definitions, without tailoring, might contradict GCA or discourage the private ownership of firearms
Did ATF fail to consider important aspects of the problem?
Yes. ATF failed to include any Second Amendment analysis. Further, since ATF would award itself the power to determine when a component has become a firearm based on included “instructions” or a firm’s “marketing,” ATF failed to include a First Amendment analysis. Further still, ATF fails to offer a Fifth Amendment analysis of its purposefully opaque sample submission process.
Is ATF’s explanation counter to the evidence?
Yes. Press accounts from 2021 show groups like Everytown met with the White House to lobby for an ATF reinterpretation of the word “firearm”. We see ATF’s prior regulatory rationale on the “partially complete receiver” question in City of Syracuse, NY, v. ATF, 1:20-cv-06885 (SDNY) and State of California v. ATF, 3:20-cv-06761 (N.D. Cal.). But the rule has no treatment of this ATF record. We may reasonably conclude this rule is made at the direction of activist elements outside of the ordinary legal and administrative center of the agency.
Did ATF consider all regulatory alternatives?
No. The Wall Street Journal published a story recounting a 2021 meeting ATF leadership arranged with the wider firearms industry, where the “ghost gun” question and this rule were discussed. So rushed was this agency to publication that there is no mention of any one of the regulatory alternatives proposed by the industry.
Did ATF adequately explain its massive “flip flop” on 80% receivers?
No. ATF hides from its public record of decades of determination letters, produced in City of Syracuse, NY, v. ATF, 1:20-cv-06885 (SDNY) and State of California v. ATF, 3:20-cv-06761 (N.D. Cal.). The agency does not explain if it is judicially estopped from withdrawing these. ATF is so cowardly that in 100 pages it would rather imply the overturning of these letters and ask commenters if they believe a flip flop has even occurred. This is shameless and deserves chapters of explanation.
In these more than 100 pages we see a textbook demonstration of undisciplined, bureaucratic decision-making. The new definitions of “partially complete receiver” and “readily” guarantee arbitrary and capricious outcomes and threaten a host of activity, commercial and non-commercial, protected by the Second Amendment. This proposed rule ignores the realities of the design and engineering process, how marking of components in an “active state of manufacture” is actually performed by real manufacturers and producers, and it incentivizes technical developments that will create an even worse black market of untraceable firearms, contrary to the rule’s stated goals.
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