Some Clarification of the Final Rule 2021r-05f as it pertains to AR-15s and 80% receivers:
Below, in no particular order, are some clarifying questions to some of the changes taking place under ATF Final Rule 2021r-05f.
This is a follow up to our previous post where more clarification was needed to answer some of the following questions.
All of the information from this post is taken directly from the ATF’s website and links are provided for those sources.
1. Does the final rule reclassify AR-15 uppers, and are they now required to be marked with a serial number?
No. The AR-15 platform has been specifically addressed in the final rule and the lower receiver will remain the regulated receiver requiring the appropriate markings. Pursuant to the final rule, 27 CFR 478.12(f)(1)(i) “[t]he receiver is the lower part of the weapon that provides housing for the trigger mechanism and hammer (i.e., lower receiver).” for the AR–15/M–16 variant firearms.
27 CFR 478.12(f)(1)(i):
F: 1: Frame or receiver classifications based on which part of the weapon was classified as such before April 26, 2022. Except as provided in paragraph (f)(2) of this section, the terms “frame” and “receiver” shall include the specific part of a complete weapon, including variants thereof, determined (classified) by the Director to be defined as a firearm frame or receiver prior to April 26, 2022. Any such part that is identified with an importer’s or manufacturer’s serial number shall be presumed, absent an official determination by the Director or other reliable evidence to the contrary, to be the frame or receiver of the weapon. The following is a nonexclusive list of such weapons and the specific part determined by the Director to be the firearm frame or receiver as they existed on that date:
i: AR-15/M-16 variant firearms: The receiver is the lower part of the weapon that provides housing for the trigger mechanism and hammer (i.e., lower receiver).
In our previous post we elaborated on what marking requirement changes could mean for the AR-15 platform and how that would impact the end user’s abilities to build, customize, or sell personally owned AR-15’s, as well as a manufacturer’s ability to manufacture and sell AR-15 upper receivers.
As stated by the ATF, the AR-15 platform will not be impacted by this Final Rule.
2. Do partially completed or so-called 80% AR-15 type lower receivers meet the definition of “frame or receiver” if they are stand-alone items without serial numbers (i.e. not included within a parts kit)?
The term ‘‘receiver’’ in 478.12(a)(2) means the part of a rifle, shotgun, or projectile weapon other than a handgun, or variants thereof, that provides housing or a structure for the primary component designed to block or seal the breech prior to initiation of the firing sequence (i.e., bolt, breechblock, or equivalent), even if pins or other attachments are required to connect such component to the housing or structure.
The term ‘‘receiver’’ as stated in 478.12I shall include a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver, i.e., to house or provide a structure for the primary energized component of a handgun, breech blocking or sealing component of a projectile weapon other than a handgun, or internal sound reduction component of a firearm muffler or firearm silencer, as the case may be. The term shall not include a forging, casting, printing, extrusion, unmachined body, or similar article that has not yet reached a stage of manufacture where it is clearly identifiable as an unfinished component part of a weapon (e.g., unformed block of metal, liquid polymer, or other raw material). When issuing a classification, the Director may consider any associated templates, jigs, molds, equipment, tools, instructions, guides, or marketing materials that are sold, distributed, or possessed with the item or kit, or otherwise made available by the seller or distributor of the item or kit to the purchaser or recipient of the item or kit. The amended regulations examples that illustrate the definitions.
The term “readily” as defined in 478.11 means a process, action, or physical state that is fairly or reasonably efficient, quick, and easy, but not necessarily the most efficient, speediest, or easiest process, action, or physical state. With respect to the classification of firearms, factors relevant in making this determination include the following: (1) Time, i.e., how long it takes to finish the process; (2) Ease, i.e., how difficult it is to do so; (3) Expertise, i.e., what knowledge and skills are required; (4) Equipment, i.e., what tools are required; (5) Parts availability, i.e., whether additional parts are required, and how easily they can be obtained; (6) Expense, i.e., how much it costs; (7) Scope, i.e., the extent to which the subject of the process must be changed to finish it; and (8) Feasibility, i.e., whether the process would damage or destroy the subject of the process, or cause it to malfunction.
The absence of a serial number is irrelevant in determining whether a weapon is a firearm.
478.12(a)(2):The term “receiver” means the part of a rifle, shotgun, or projectile weapon other than a handgun, or variants thereof, that provides housing or a structure for the primary component designed to block or seal the breech prior to initiation of the firing sequence (i.e., bolt, breechblock, or equivalent), even if pins or other attachments are required to connect such component to the housing or structure.
EMPHASIS HERE: “The term shall not include a forging, casting, printing, extrusion, unmachined body, or similar article that has not yet reached a stage of manufacture where it is clearly identifiable as an unfinished component part of a weapon (e.g., unformed block of metal, liquid polymer, or other raw material).”
QUESTION: So would an unfinished 80% lower receiver coated in black anodize be considered a “clearly identifiable unfinished component part of a weapon”?
It appears that 80% receivers may still be legal to purchase, after 8/24/22, so long as the 80% receiver is not purchased along side any of the necessary tools or components needed to manufacture and assemble the 80% receiver into a functioning Privately Made Firearm.
3. Can a non-licensee acquire an unfinished firearm frame or receiver (i.e. does not meet the definition of a firearm frame or receiver under the final rule), components, tools, jigs, etc. from an unrelated company, and legally make a PMF?
Under federal law, it’s not unlawful for a person who is not prohibited from possessing firearms to make a non-NFA (National Firearms Act) privately made firearm (PMF) for their own personal use.
4. Do I need to be licensed as a manufacturer if I acquire used firearms on which I will perform a manufacturing process (e.g. cerakote) for subsequent sale or distribution?
Yes. The final rule amended the definition “engaged in the business” as it relates to a ‘‘gunsmith’’ in 478.11 to mean, in part a person who, as a service performed on existing firearms not for sale or distribution, devotes time, attention, and labor to repairing or customizing firearms, making or fitting special barrels, stocks, or trigger mechanisms to firearms, or placing marks of identification on privately made firearms in accordance with this part, as a regular course of trade or business with the principal objective of livelihood and profit but shall not include a person who manufactures firearms (i.e., frames or receivers or complete weapons) by completion, assembly, or applying coatings, or otherwise making them suitable for use, requiring a license as a manufacturer.
5. Is a licensee required to mark a privately made firearm (PMF) received for adjustment or repair that is returned to the person from whom it was received?
A licensee is not required to mark a PMF received for same day adjustment or repair that the licensee returns – on the same day as it was received – to the person from whom it was received. Furthermore, a licensee is not required to record an A&D entry, nor execute an ATF Form 4473, nor run a NICS background check when such firearm received under these conditions is returned to the customer from whom it was received.
6. Are companies that are engaged in the business of selling weapon parts kits required to be licensed as a manufacturer and to mark those weapon parts kits?
The final rule clarifies that the definition of “firearm” includes a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive. It also clarifies that the term “firearm” does not include a weapon, including a weapon parts kit, in which the frame or receiver of such weapon is “destroyed” as described in the definition “frame or receiver.” The final rule also explains that persons engaged in the business of selling or distributing weapon parts kits cannot avoid licensing, marking, recordkeeping, or other requirements to which federal firearms licensees (FFLs) are subject ‘‘by selling or shipping the parts in more than one box or shipment to the same person, or by conspiring with another person to do so.’’
7. Definition of a Privately Made Firearm:
The final rule amends 27 CFR Parts 447.11 and 478.11 to define a firearm made by a nonlicensee as a “Privately Made Firearm” (“PMF”).
A PMF is defined as “[a] firearm, including a frame or receiver, completed, assembled, or otherwise produced by a person other than a licensed manufacturer, and without a serial number placed by a licensed manufacturer at the time the firearm was produced. The term shall not include a firearm identified and registered in the National Firearms Registration and Transfer
Record pursuant to chapter 53, title 26, United States Code, or any firearm manufactured or made before October 22, 1968 (unless remanufactured after that date).”
The final rule amends the regulations to require all FFLs to identify (mark) any PMF they take into their inventory. This requirement will allow licensees to comply with GCA recordkeeping requirements when accepting PMFs and allow ATF to trace those firearms through licensees’ records if involved in a crime.
The final rule:
- Does not prohibit an individual from making their own PMF.
- Does not mandate unlicensed persons mark their own PMF.
- Does not require an FFL to accept unmarked PMFs into their inventory.
- Does not apply to firearms marked and registered pursuant to the NFA, 26 U.S.C. 5842 and 27 CFR 479.102, upon approval of an ATF Form 1 .
- Does not apply to firearms manufactured or made before the effective date of the Gun Control Act of 1968, October 22, 1968, unless remanufactured after that date.
We still have a few questions regarding how we can conduct business as it pertains to the manufacture and sale of 80% receivers in regards to serialization of said receivers and whether or not an 80% receiver by itself can, or will be considered a firearm in the eyes of the ATF. We will continue our research and report back any other clarifications we come across that we deem pertinent to our ability to manufacture and sell firearms.