Submit Comment on ATF 80% Receiver Rule, 2021R-05

On May 21st ATF published proposed rule 2021R-05 in the federal register. This regulation attempts to radically expand the definition of a firearm to include all DIY kits and 80% receivers on the market today. If it becomes the law, it will severely limit the market for private and homemade firearms.

You may use the form below to submit a comment on this proposed regulation. ATF is required to read and adequately respond to all comments on their proposal, so we ask that you use this opportunity to publicly oppose this overreach.

Your name and address information will be recorded in your public comment. Defense Distributed does not store your name or address.

Warning: ATF has stated that comments without a full name and mailing address will be ignored. If you proceed with making an anonymous comment digitally, your comment may not be considered.

Alternatively, you may submit comments by mail or fax, along with a separate cover sheet containing your personal identifying information. Both the cover sheet and comment must reference this docket number (2021R-05).

Address for mailing: Andrew Lange, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Ave. NE, Mail Stop 6N-518, Washington, DC 20226; ATTN: ATF 2021R-05.

Number for faxed comments: (202) 648-9741.

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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ATF requests comments on the feasibility and costs or benefits of the proposed rule.

ATF specifies that comments containing abusive language or profanity will not be considered.

Your comment will be posted publicly on the internet without redaction. You may wish to not include confidential or proprietary information in your comment.

Comment submission deadline is August 19th, 2021.

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