ATF Changes Firearm Accessory Evaluation Process
November 11, 2018
It’s time to come clean. Way back in November of 2016, one of the things I admittedly thought a Trump presidency would bring us was a reprieve from extra-legislative regulatory measures. These sorts of rules changes, often headed by the DOJ/ATF or the State Department, were popular within the Obama administration after Democrats lost control of Congress in 2010 and they introduced new and ever more pervasive challenges for legal gun owners, manufacturers, and dealers looking to stay on the right side of the law. Such changes brought us stricter ITAR enforcement, substantially modified transfers of NFA-regulated firearms and suppressors, and nearly banned the sale and manufacture of popular M855 5.56mm ammunition.
Monday’s announcement doesn’t go quite as far as the above measures and, as such, won’t be subject to the weeks-long comment period they required. Here’s what the ATF had to say to members of the firearms industry:
Effective immediately, any requests for a determination on how an accessory affects the classification of a firearm under the GCA or NFA must include a firearm with the accessory already installed. Except in cases of conditional import determinations, FTISB will not issue a determination on an accessory unless it is attached to the submitted firearm.
If you have previously submitted a sample accessory for classification, FTISB will be returning your sample without classification. FTISB will contact you in the near future with further instructions to facilitate the return of your sample.
Let’s review how this process typically works. In order to sell a newly-developed accessory, designers/manufacturers submit a sample to the ATF for evaluation. Technically, manufacturers don’t have to do this, but it is the best way for them to protect themselves and their customers from potentially breaking the law. The ATF then determines whether installing that accessory on a working firearm changes the host gun’s status with respect to relevant federal laws, including the NFA. Historically, anyone requesting such a determination only needed to submit a sample product. The submission did not need to be accompanied by a firearm, much less be installed. This letter changes those requirements.
There are two major points here that I immediately pulled from this. The first requires us to grant some leniency to the ATF. If nothing else, this change forces firearm accessory designers to have some skin in the game. It throttles the Firearms Technology Industry Services Branch’s (FTISB) workload by limiting submissions to only those that are serious. It also ensures that there is no confusion over how an accessory is to be installed or used. Pete, over at TFB echoed these thoughts in his piece on the matter and he even suggested that the change could reflect the ATF’s desire to treat approvals for pistol braces on a more case-by-case basis.
At the same time, there’s a real problem with this. In situations where the ATF has opts not to approve an item – or more specifically when they determine items represent NFA-regulated products – and the creator is not in possession of the proper Special Occupational Tax exemption (SOT), the agency appears unlikely to return what would now be judged an unregistered NFA firearm. This means that if most of us come up with some sort of novel accessory that we intend to sell, we run the risk of forfeiting it and the attached firearm merely because the two were submitted together. This is effectively what happened with the AutoGlove. Remember, you don’t need to be a Federal Firearms Licensee (FFL) to make and sell most accessories.
I suspect many are asking why this change and why now? Recall that according to multiple reports, the Trump ATF plans to rule against bump stocks within the next several weeks. It’s likely that the agency expects the ruling to prompt circumvention efforts. This message makes it clear that anyone who wants to give it a shot had better be prepared to, at minimum, lose a firearm over it. Considering the FTISB also wants accessories to arrive installed on the firearm, it’s unclear whether requestors expose themselves to legal consequences if the combination is found to be NFA regulated, but the AutoGlove precedent suggests that these concerns may be overblown.
An information security professional by day and gun blogger by night, Nathan started his firearms journey at 16 years old as a collector of C&R rifles. These days, you’re likely to find him shooting something a bit more modern – and usually equipped with a suppressor – but his passion for firearms with military heritage has never waned. Over the last five years, Nathan has written about a variety of firearms topics, including Second Amendment politics and gun and gear reviews. When he isn’t shooting or writing, Nathan nerds out over computers, 3D printing, and Star Wars.