https://comms.wiley.law/8/3583/october-2020/alert--atf-interpretive-change-restricts-handgun-imports-and-may-require-nfa-registration(2).asp?sid=a452ea75-2271-421a-8974-669a79e41dc6&fbclid=IwAR2IyYDItnCGeWEX80l5gkc6uaD8k9UgbCDvQNejGXas7DfPtQos2ZiGCO0After the fiasco with Q and the Honey Badger AR pistol, they backed off for a bit with a 60 day stay on their ruling. It appears the source of the issue may lie with an inconsistent ruling guideline, which basically allows the individual tester to decide if the firearm is too heavy to be fired from a single hand.
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.
Unfortunately, this means the ATF may try to begin classifying even more AR pistols as an AOW, which would require registering under the NFA and paying the tax.
Consideration of Certain Handguns as Any Other Weapons (AOW)
The new interpretation of the handgun definition could have additional significant effects on manufacturers and gun owners.
Under the National Firearms Act, a firearm that has an overall length of less than 26 inches and is neither a pistol, rifle nor shotgun is classified as an “Any Other Weapon” (AOW).2 This means that if a firearm under 26 inches in overall length is determined not to be a pistol, rifle, or shotgun, it would necessarily be classified as an AOW.3 AOWs require the payment of a tax and registration with the federal government.
Under ATF’s new reading of the definition, firearms previously classified as large-sized handguns by ATF may now require registration under the National Firearms Act as an AOW.4 Possession of such a firearm without registration is punishable by up to ten years in prison. Since ATF has not articulated a standard, it is difficult to definitively know whether a large handgun is now an AOW because it may be deemed by the agency to be “too large, or too heavy” to fit within the statutory definition of handgun. The only definitive way to know is to submit the firearm to ATF for evaluation, a process that can take over a year.
