IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JENNIFER VANDERSTOK; 

MICHAEL G. ANDREN; 

TACTICAL MACHINING, LLC, a limited liability 

company; and 

FIREARMS POLICY COALITION, INC., a nonprofit 

corporation, 

 Plaintiffs, 

and

BLACKHAWK MANUFACTURING GROUP INC. 

d/b/a 80 PERCENT ARMS; ; DEFENSE 

DISTRIBUTED; and SECOND AMENDMENT 

FOUNDATION, INC.,

Intervenor-Plaintiffs, 

 v. 

MERRICK GARLAND, in his official capacity as 

Attorney General of the United States; 

UNITED STATES DEPARTMENT OF JUSTICE; 

STEVEN DETTELBACH, in his official capacity as 

Director of the Bureau of Alcohol, Tobacco, Firearms 

and Explosives; and 

BUREAU OF ALCOHOL, TOBACCO, FIREARMS 

AND EXPLOSIVES,

 Defendants. 

 Civil Action No. 4:22-cv-691-O 

BLACKHAWK MANUFACTURING GROUP INC. d/b/a 80 PERCENT ARMS’ 

BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS

Introduction..........................................................................................................................1 

FACTUAL BACKGROUND ..............................................................................................2 

I. THE GUN CONTROL ACT OF 1968 AND ATF IMPLEMENTING 

REGULATIONS............................................................................................................2 

II. THE BIDEN ADMINISTRATION ANNOUNCES THAT IT “WILL 

NOT WAIT FOR CONGRESS TO ACT TO TAKE ITS OWN STEPS” 

ON “GHOST GUNS” ....................................................................................................6 

III. THE RULEMAKING PROCESS: NOTICE AND COMMENT PERIOD .................7 

IV. PUBLICATION OF THE FINAL RULE...................................................................10 

LEGAL STANDARD ........................................................................................................15 

A. Summary Judgment ...............................................................................................15 

B. APA Standard ........................................................................................................15 

1. Notice and Comment Requirements .................................................................16 

2. “Arbitrary and Capricious” ..............................................................................16 

3. “Contrary to Constitutional Right”; “Not in Accordance with Law” ..............17 

ARGUMENT .....................................................................................................................17 

 I. THE FINAL RULE VIOLATES THE APA AND MUST 

 BE SET ASIDE..........................................................................................................18 

A. The Final Rule Was Not a Logical Outgrowth of the Notice and 

Failed to Satisfy the Public Participation Requirements of the APA ...................18 

B. The Final Rule Is Arbitrary and Capricious .........................................................21 

C. The Final Rule Is Contrary to Constitutional Right and Not in 

Accordance with Law ...........................................................................................26 

II. EVEN IF GCA DEFINITIONS WERE AMBIGUOUS—AND THEY 

ARE NOT—DEFENDANTS’ ARBITRARY AND CAPRICIOUS 

RULEMAKING WEIGHS AGAINST CHEVRON DEFERENCE ...................31 

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III. THE FINAL RULE VIOLATES THE CONSTITUTION ..................................32

A. The Final Rule Is Unconstitutionally Vague in Violation of 

Due Process....................................................................................................32

 

B. The Final Rule Infringes on the Exercise of Second Amendment 

Rights..............................................................................................................34

C. The Final Rule Chills Protected Speech in Violation of the 

First Amendment............................................................................................37

D. The Final Rule Effectuates a Regulatory Taking of “Privately 

Made Firearms” Without Just Compensation ................................................39

IV. THE FINAL RULE IMPLICATES AND VIOLATES CORE 

CONSTITUTIONAL PRINCIPLES.......................................................................39

A. The Agencies’ Rulemaking Actions and Adoption of Final 

Rule Violate the Separation of Powers...........................................................40

B. The Final Rule Violates the Nondelegation Doctrine......................................40

C. The Final Rule’s Regulation on “Privately Made Firearms” Exceed 

the Limits of the Commerce Clause ...............................................................41

V. VACATUR IS THE APPROPRIATE REMEDY...................................................41

Conclusion ......................................................................................................................42

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TABLE OF AUTHORITIES 

Cases

A.L.A. Schechter Poultry Corp. v. United States, 

 295 U.S. 495 (1935) ................................................................................................................. 41 

Adams Fruit Co. v. Barrett, 

 494 U.S. 638 (1990) ................................................................................................................. 32 

Alexander v. Sandoval, 

 532 U.S. 275 (2001) ................................................................................................................. 26 

Amin v. Mayorkas, 

 24 F.4th 383 (5th Cir. 2022) ..................................................................................................... 15 

Barnhart v. Sigmon Coal Co., 

 534 U.S. 438 (2002) ................................................................................................................. 40 

Bernstein v. U.S. Dep’t of State, 

 922 F. Supp. 1426 (N.D. Cal. 1996) ......................................................................................... 37 

Bowen v. Georgetown Univ. Hosp., 

 488 U.S. 204 (1988) ................................................................................................................. 26 

Brown v. U.S. Dep’t of Educ., 

 No. 4:22-CV-0908-P, ––– F.Supp.3d –––, 2022 WL 16858525 

 (N.D. Tex. Nov. 10, 2022) ........................................................................................................ 42 

California v. ATF, 

 3:20-cv-06761 (N.D. Ca.) ......................................................................................................... 24 

Chamber of Commerce v. U.S. Dep’t of Labor, 

 885 F.3d 360, 384 (5th Cir. 2018) ............................................................................................ 15 

Chem. Mfrs. Ass’n v. U.S. E.P.A., 

 870 F.2d 177 (5th Cir.) ............................................................................................................. 16 

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 

 467 U.S. 837 (1984) .......................................................................................................... passim

Christensen v. Harris County, 

 529 U.S. 576 (2000) ................................................................................................................. 30 

City of Arlington, Tex. v. F.C.C., 

 569 U.S. 290 (2013) ................................................................................................................. 31 

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Coates v. City of Cincinnati, 

402 U.S. 611 (1971) ................................................................................................................. 33

Collins v. Mnuchin, 

938 F.3d 553 (5th Cir. 2019).................................................................................................... 26

Data Mktg. P’ship, LP v. United States Dep’t of Lab., 

45 F.4th 846 (5th Cir. 2022)..................................................................................................... 41

Decker v. Nw. Envtl. Def. Ctr., 

568 U.S. 597 (2013) ................................................................................................................. 33

Digital Realty Trust, Inc. v. Somers, 

138 S. Ct. 767 (2018)................................................................................................................ 30

District of Columbia v. Heller, 

554 U.S. 570 (2008) ................................................................................................................. 35

Driftless Area Land Conservancy v. Valcq, 

16 F.4th 508 (7th Cir. 2021)..................................................................................................... 42

Elgin Nursing & Rehab. Ctr. v. U.S. Dep’t of Health & Hum. Servs., 

718 F.3d 488 (5th Cir. 2013).................................................................................................... 33

Encino Motorcars, LLC v. Navarro, 

579 U.S. 211 (2016) ........................................................................................................... 25, 31

Ethyl Corp. v. EPA, 

51 F.3d 1053 (D.C. Cir. 1995).................................................................................................. 27

FCC v. League of Women Voters of Cal., 

468 U.S. 364 (1984) ................................................................................................................. 38

FDA v. Brown & Williamson Tobacco Corp., 

529 U.S. 120 (2000) ................................................................................................................. 31

Fed. Maritime Comm’n v. Seatrain Lines, Inc., 

411 U.S. 726 (1973) ................................................................................................................. 32

Gulf Fishermens Ass’n v. Nat’l Marine Fisheries Serv., 

968 F.3d 454 (5th Cir. 2020).................................................................................................... 23

Horne v. Dep’t of Agriculture, 

576 U.S. 351 (2015) ................................................................................................................. 39

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IMS Health Inc. v. Sorrell, 

 630 F.3d 263 (2d Cir. 2010) ..................................................................................................... 37 

Johnson v. United States, 

 576 U.S. 591 (2015) ................................................................................................................. 32 

Lion Health Servs., Inc. v. Sebelius, 

 635 F.3d 693 (5th Cir. 2011) .................................................................................................... 42 

Little v. Liquid Air Corp., 

 37 F.3d 1069 (5th Cir. 1994) .................................................................................................... 15 

Loving v. United States, 

 517 U.S. 748 (1996) ................................................................................................................. 40 

MCI Telecomm. Corp. v. AT&T Co., 

 512 U.S. 218 (1994) ................................................................................................................. 29 

Mozilla Corp. v. FCC, 

 940 F.3d 1 (D.C. Cir. 2019) ...................................................................................................... 16 

Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 

 138 S. Ct. 2361 (2018).............................................................................................................. 38 

Nat’l Lifeline Ass’n v. Fed. Commc’ns Comm’n, 

 921 F.3d 1102 (D.C. Cir. 2019) .......................................................................................... 16, 20 

Nat’l Pork Producers Council v. EPA, 

 635 F.3d 738 (5th Cir. 2011) .............................................................................................. 22, 26 

Nat’l R.R. Passenger Corp. v. Nat’l Ass’n of R.R. Passengers, 

 414 U.S. 453 (1974) ................................................................................................................. 29 

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 

142 S. Ct. 2111 (2022)........................................................................................................ 35, 36 

Panama Refining Co. v. Ryan, 

 293 U.S. 388 (1935) ................................................................................................................. 41 

Penn Cent. Transp. Co. v. City of New York, 

 438 U.S. 104 (1978) ................................................................................................................. 39 

Penn. Coal Co. v. Mahon, 

 260 U.S. 393 (1922) ................................................................................................................. 39 

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Platte River Whooping Crane Critical Habitat Maint. Trust v. FERC, 

 962 F.2d 27 (D.C. Cir. 1992) .................................................................................................... 29 

Policy & Research, LLC v. HHS, 

 313 F. Supp. 3d 62 (D.D.C. 2018) ............................................................................................ 24 

Porter v. Califano, 

 592 F.2d 770 (5th Cir. 1979) .................................................................................................... 17 

Robinson v. Shell Oil Co., 

 519 U.S. 337 (1997) ................................................................................................................. 31 

Sea-Land Serv., Inc. v. Dep’t of Transp., 

 137 F.3d 640 (D.C. Cir. 1998) .................................................................................................. 17 

SEC v. Chenery Corp., 

 318 U.S. 80 (1943) ................................................................................................................... 17 

Sessions v. Dimaya, 

 138 S.Ct. 1204 (2018)............................................................................................................... 33 

Smith v. Berryhill, 

 139 S. Ct. 1765 (2019).............................................................................................................. 31 

Staples v. United States, 

 511 U.S. 600 (1994) ................................................................................................................. 34 

Sw. Elec. Power Co. v. EPA, 

 920 F.3d 999 (5th Cir. 2019) ............................................................................................ 16, 31 

Texas Off. of Pub. Util. Couns. v. F.C.C., 

 183 F.3d 393 (5th Cir. 1999) .................................................................................................... 17 

Texas v. United States, 

 497 F.3d 491 (5th Cir. 2007) .............................................................................................. 27, 29 

Thomas Jefferson Univ. v. Shalala, 

 512 U.S. 504 (1994) ................................................................................................................. 33 

United States v. Davis, 

 139 S. Ct. 2319 (2019).............................................................................................................. 30 

United States v. USPlabs, LLC, 

 338 F. Supp. 3d 547(N.D. Tex. 2018) ................................................................................ 32, 33 

Case 4:22-cv-00691-O Document 145 Filed 12/23/22 Page 7 of 53 PageID 2413
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Univ. of Texas Sw. Med. Ctr. v. Nassar, 

570 U.S. 338 (2013) ................................................................................................................. 31

Utility Air Reg. Group v. EPA, 

573 U.S. 302, 325–28 (2014) ............................................................................................ passim

Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 

425 U.S. 748 (1976) ................................................................................................................. 37

Vizaline, L.L.C. v. Tracy, 

949 F.3d 927 (5th Cir. 2020).................................................................................................... 38

Wages & White Lion Invs., L.L.C. v. United States Food & Drug Admin., 

16 F.4th 1130 (5th Cir. 2021)................................................................................................... 16

Watt v. Alaska, 

451 U.S. 259 (1981) ................................................................................................................... 4

West Virginia v. EPA, 

142 S. Ct. 2587 (2022).............................................................................................................. 41

Wisconsin Central Ltd. v. United States, 

138 S. Ct. 2067 (2018).............................................................................................................. 30

Statutes

18 U.S.C. § 921...................................................................................................................... passim

18 U.S.C. §§ 922–923..................................................................................................................... 2

18 U.S.C. § 923............................................................................................................................... 5

18 U.S.C. § 923(a) .......................................................................................................................... 3

18 U.S.C. § 924............................................................................................................................... 5

5 U.S.C. § 553......................................................................................................................... 16, 18

5 U.S.C. § 706........................................................................................................................ passim

Other Authorities

Administrative Procedures Act.............................................................................................. passim

Commerce in Firearms and Ammunition, 33 Fed. Reg. 18,555 (Dec. 14, 1968)........................... 4

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Definition of “Frame or Receiver” and Identification of Firearms, 

86 Fed. Reg. 27 (May 21, 2021)........................................................................................ passim

Definition of “Frame or Receiver” and Identification of Firearms, 

87 Fed. Reg. 24 (Apr. 26, 2022)........................................................................................ passim

Federal Firearms Act of 1938 ....................................................................................................... 21

Gun Control Act of 1968........................................................................................................ passim

H.R. 1454, 117th Cong. (2021) (Ghost Guns Are Guns Act) ......................................................... 6

H.R. Rep. 90-1577 (June 21, 1968) .............................................................................................. 21

S. 1558, 117th Cong. (2021) (Untraceable Firearms Act of 2021)................................................ 6

U.S. CONST. Art. I, § 1.................................................................................................................. 40

U.S. CONST. Art. I, § 8 .................................................................................................................. 41

U.S. CONST. Art. II, § 3 ................................................................................................................ 40

Rules

26 C.F.R. § 178.11.......................................................................................................................... 4

27 C.F.R. § 478.11................................................................................................................. passim

27 C.F.R. parts 478–479 ................................................................................................................. 3

111 Cong. Rec. 5527 (March 22, 1965)........................................................................................ 21

Fed. R. Civ. P. 56...................................................................................................................... 1, 15

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Intervenor-Plaintiff BlackHawk Manufacturing Group Inc. d/b/a 80 Percent Arms 

(“BlackHawk”) files this Brief in Support of its Motion for Summary Judgment pursuant to Fed. 

R. Civ. P. 56. BlackHawk joins the Original Plaintiffs in this action (collectively, “Plaintiffs”) in 

seeking summary judgment against Defendants United States Attorney General Merrick Garland 

(“Attorney General”), United States Department of Justice (“DOJ”), Director of the Bureau of 

Alcohol, Tobacco, Firearms and Explosives (“ATF”) Steven Dettelbach, and ATF (collectively, 

“Agencies” or “Defendants”), respectfully showing the Court as follows:

Introduction 

Plaintiffs in this case are challenging various regulations promulgated in a far-reaching 

rulemaking issued by ATF on April 26, 2022, 2021R-05F, 87 FR 24652, and which took effect on 

August 24, 2022, entitled Definition of ‘Frame or Receiver’ and Identification of Firearms (to be 

codified at 27 C.F.R. pts. 447, 478, and 479) (“Final Rule”). The Final Rule comprises hundreds 

of pages of preamble, explanation, new regulatory definitions, and an economic impact analysis 

describing harm the Final Rule inflicts upon individuals not required to be licensed by ATF who 

make firearms for personal use, as well as the businesses involved in providing lawful parts to 

these citizens.

Defendants contend that the Final Rule was a necessary response to evolving technical 

advances in firearms technology, and merely updates decades-old definitions within its 

longstanding regulations of federal firearms laws. However, the Final Rule goes much further, 

amending the definitions of key terms within ATF’s regulations, including “frame or receiver”, 

introducing definitions for newly regulated items, e.g., “weapons parts kits” and “privately made 

firearm”, imposing a variety of newly revised or expanded related regulations on firearm markings 

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and recordkeeping and unilaterally abandoning over fifty years of ATF’s determinations relied 

upon by both industry and citizens. Id. 

Plaintiffs have brought this challenge because the Final Rule is an exercise of agency 

lawmaking that is unlawful under the Administrative Procedures Act (“APA”) and impermissibly 

expands, confuses, and reinterprets regulations that govern activities by which American citizens 

exercise fundamental rights expressly guaranteed by the Constitution. The Final Rule’s origin, 

enactment and substantive content offend the Constitution, the law, historical precedent, and 

common sense. If left unaddressed, the Final Rule will enable the Agencies to arrogate to 

themselves a regulatory reach that puts ordinary citizens at risk and illegally invades 

manufacturing sectors, supply chains, and suppresses categories of protected speech for which 

Agencies have no Congressionally-delegated authority. These gross usurpations of the statutory 

limits that Congress set in the Gun Control Act regarding the making or selling of firearms,

particularly privately made firearms and the previously unregulated parts and technology to 

support such firearm making, have never been asserted in ATF’s regulations prior to the Final 

Rule. 

FACTUAL BACKGROUND

I. THE GUN CONTROL ACT OF 1968 AND ATF IMPLEMENTING REGULATIONS 

Congress enacted the Gun Control Act in 1968, as amended, 18 U.S.C. §§ 921 et seq. 

(“GCA”), which established federal regulations for persons engaging in the business of importing, 

manufacturing, or dealing in “firearms.” See generally 18 U.S.C. §§ 922–923. Congress vested in 

ATF the authority to prescribe regulations “necessary to carry out the provisions of” the GCA, id. 

§ 926(a), but made clear that “it is not the purpose of this title to place any undue or unnecessary 

Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, 

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or use of firearms” for appropriate purposes. Gun Control Act of 1968, Pub. L. No. 90-618, § 101, 

82 Stat. 1213, 1213–14. The GCA further stated that “this title is not intended to discourage or 

eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes, or 

provide for the imposition by Federal regulations of any procedures or requirements other than 

those reasonably necessary to implement and effectuate the provisions of this title.” § 101, 82 Stat. 

at 1214. 

Against this backdrop, ATF has promulgated implementing regulations pursuant to the 

requirements of the GCA. See 27 C.F.R. parts 478–479. The GCA requires entities that import, 

manufacture, or deal in firearms to obtain a federal firearms license, 18 U.S.C. § 923(a), to 

maintain records of firearm acquisition and disposition as prescribed by regulation, id. § 

923(g)(1)(A), and to conduct background checks before transferring firearms to a non-licensee, id. 

§ 922(t). The GCA also requires licensed importers and manufacturers to identify each firearm 

they import or manufacture by means of a serial number on the weapon’s receiver or frame. Id. § 

923(i). 

The scope of the GCA—and ATF’s attendant regulatory authority and obligations—is 

centered on and bounded by the GCA’s four-part definition of “firearm” as “(A) any weapon 

(including a starter gun) which will or is designed to or may readily be converted to expel a 

projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any 

firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an 

antique firearm.” 18 U.S.C. § 921. The GCA does not include a statutory definition of a “frame or 

receiver”, but shortly after passage of the GCA in 1968, ATF promulgated regulations which 

provided a one-sentence definition of “frame or receiver” as: “That part of a firearm which 

provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually 

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threaded at its forward portion to receive the barrel.” Final Rule, Commerce in Firearms and 

Ammunition, 33 Fed. Reg. 18,555 (Dec. 14, 1968) (then codified at 26 C.F.R. § 178.11, and today 

appearing at 27 C.F.R. § 478.11). 

At the time ATF promulgated its 1968 Rule, it was no secret that some commonly used 

weapons featured a “striker” rather than a hammer and other weapons had a central component 

which housed fewer than all three elements. The Agencies addressed this incongruity by 

disregarding their own definition of “frame or receiver” and instead applied regulatory force to 

whatever component most closely fit the legal definition. Final Rule at 24,655. This interpretative

rubric was permitted by courts, and the Agencies took and held the position that the GCA 

authorized ATF to regulate items that “may readily be converted” into a weapon that expels a 

projectile by the act of an explosion, but did not authorize the regulation of items that “may readily 

be converted” into a “frame or receiver.” The Agencies maintained this distinction for five decades. 

Since the 1968 enactment of the GCA and at all times prior to the effective date of the 

Final Rule, ATF’s regulations defined a “firearm” as including the four categories of items 

contained in 18 U.S.C. § 921(a)(3), following the statutory text nearly verbatim: 

Any weapon, including a starter gun, which will or is designed to or may readily be 

converted to expel a projectile by the action of an explosive; the frame or receiver of any 

such weapon; any firearm muffler or firearm silencer; or any destructive device; but the 

term shall not include an antique firearm. In the case of a licensed collector, the term shall 

mean only curios and relics.

27 C.F.R. § 478.11.

1

The above regulatory definition guides ATF’s enforcement of a strict licensing regime 

governs the importation, manufacture, and dealing of products that constitute firearms. 18 U.S.C. 

1 See Watt v. Alaska, 451 U.S. 259, 272–73 (1981) (“The Department’s contemporaneous 

construction carries persuasive weight. ... The Department’s current interpretation, being in 

conflict with its initial position, is entitled to considerably less deference.”).

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§ 923(i) requires licensed importers and licensed manufacturers to “identify by means of a serial 

number engraved or cast on the receiver or frame of the weapon, in such manner as the Attorney 

General shall by regulations prescribe, each firearm imported or manufactured by such importer 

or manufacturer.” Failure to follow these requirements can result in criminal liability. See 18 

U.S.C. § 924(a)(1) (making it is a crime to violate “any other provision of this chapter,” referring 

to Title 18, Chapter 44, of the United States Code, which contains sections 921–931). It is therefore 

essential for law-abiding businesses in the firearms industry to have clarity and predictability about 

what products meet the definitions of a “firearm” and “frame or receiver.”

As shown in the five decades of agency activity presented in the Administrative Record, 

ATF’s implementing regulations maintained continuity and faithfulness with the GCA text 

regarding the definition of “firearm” and ATF’s definition of “frame or receiver” provided basic 

stability while technology evolved and the American tradition of homemade gunmaking continued 

to gain popularity. While certainly not exempt from criticism, ATF’s regulatory definitions prior 

to the Final Rule allowed ATF to communicate with the industry and the public at large in a 

relatively coherent, constructive and consistent manner so that licensees and the public alike had 

reasonable clarity and understanding as to the basic definition of firearm and the parameters of 

ATF’s regulations regarding licensure, compliance, and criminal conduct. Indeed, the 

Administrative Record contains numerous classification letters and guidance that demonstrate

areas of laudable consistency in ATF’s generally permissible interpretation of the GCA and the 

application of agency rules in determinations made over the course of decades.

For five decades, ATF issued consistent guidance through scores of classification letters,

ruling that certain “partially complete or unassembled frames or receivers” (even those including 

parts, tools, and instructions to assist in the manufacturing process) have not “reached a stage of 

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manufacture” to be properly classified as the “frame or receiver” of a “firearm,” and thus are 

outside the regulatory scope of federal law. ATF’s faithful adherence to the GCA’s definition of 

“firearm” as including the four categories of items contained in 18 U.S.C. § 921(a)(3) enabled the 

agency to communicate the distinctions between GCA-regulated “firearms” and unregulated nonfirearm items in a reasonably straightforward, understandable manner.

II. THE BIDEN ADMINISTRATION ANNOUNCES THAT IT “WILL NOT WAIT FOR CONGRESS 

TO ACT TO TAKE ITS OWN STEPS” ON “GHOST GUNS”

President Biden campaigned on a promise to “[s]top ‘ghost guns,’” referring to firearms 

“assembl[ed] . . . on [one’s] own . . . by buying a kit of disassembled gun parts.”2 Specifically, he 

promised to “pass[] legislation” to “stop the proliferation of these so-called ‘ghost guns.’” Prior to 

and after President Biden took office, legislators proposed various bills changing the way ATF 

classifies receiver blanks and other non-firearms. See, e.g., S. 1558, 117th Cong. (2021) 

(Untraceable Firearms Act of 2021); H.R. 1454, 117th Cong. (2021) (Ghost Guns Are Guns Act). 

However, none of those bills gained enough Congressional support to become law. 

On April 7, 2021, the Biden Administration announced the President was “reiterating his 

call for Congress to pass legislation” on firearms regulations but stated that “this Administration 

will not wait for Congress to act to take its own steps” on gun control.3 The announcement 

instructed the Department of Justice to “within 30 days . . . issue a proposed rule to help stop the 

proliferation” of so-called “ghost guns.” On April 8, 2021, President Biden, Vice President Harris, 

and Defendant Garland held a press conference on gun policy at the White House Rose Garden, 

2 The Biden Plan to End Our Gun Violence Epidemic, BIDEN-HARRIS DEMOCRATS, 

https://joebiden.com/gunsafety/.

3 Fact Sheet: Biden-Harris Administration Announces Initial Actions to Address the Gun Violence 

Public Health Epidemic, THE WHITE HOUSE (Apr. 7, 2021), https://www.whitehouse.gov/briefingroom/statements-releases/2021/04/07/fact-sheet-biden-harris-administration-announces-initialactions-to-address-the-gun-violence-public-health-epidemic/.

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during which President Biden stated that he “asked the Attorney General and his team to identify 

for me immediate, concrete actions I could take now without having to go through the Congress.”4

(President Biden would later reiterate that the reason he “instructed the Attorney General to write 

a regulation ... because I was having trouble getting anything passed in the Congress).

5

 The April 

8, 2021 press conference also included remarks from Defendant Garland who stated that “the 

proliferation of the so-called ghost guns” was caused by a “regulatory loophole” or “gap,”6 even 

though such parts and products are non-firearm items long used in the American homemade 

gunmaking tradition and as such have properly remained outside the scope of the GCA and thus 

unregulated as a direct result of ATF’s carefully considered and legally correct decision to issue 

classification determinations approving the unregulated sale of such non-firearm products.

III. THE RULEMAKING PROCESS: NOTICE AND COMMENT PERIOD

On May 21, 2021, the Agencies published in the Federal Register a Notice of Proposed 

Rulemaking entitled Definition of ‘Frame or Receiver’ and Identification of Firearms, requesting 

comments. 86 Fed. Reg. 27,720 (May 21, 2021) (“NPRM”). The NPRM provided the regulatory 

text of the proposed rule, id. at 27,741–53, which explained the ATF sought to “amend[] [its] 

regulations to clarify the definition of ‘firearm’ and to provide a more comprehensive definition 

of ‘frame or receiver’ so that those definitions more accurately reflect firearm configurations not 

4 Remarks by President Biden on Gun Violence Prevention, THE WHITE HOUSE (Apr. 8, 2021), 

https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/04/08/remarks-by-presidentbiden-on-gun-violence-prevention. 5 Remarks by President Biden Announcing Actions to Fight Gun Crime and His Nominee for ATF 

Director, Steve Dettelbach, THE WHITE HOUSE (Apr. 11, 2022), 

https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/04/11/press-briefing- bypress-secretary-jen-psaki-april-11-2022/.

6 Defendant Garland’s Full Remarks on Gun Violence Prevention at the White House Rose 

Garden, U.S. DEP’T OF JUSTICE (Apr. 8, 2021), http://www.justice.gov/opa/speech/attorneygeneral-garland-s-full-remarks-gun-violence- prevention-white-house-rose-garden/.

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explicitly captured under the existing definitions[.]” Id. at 27,725. The NPRM also “propose[d] 

new terms and definitions to take into account technological developments and modern 

terminology in the firearms industry, as well as amendments to the marking and recordkeeping 

requirements that would be necessary to implement these definitions.” Id. Interested members of 

the public could submit comments on the Proposed Rule until August 19, 2021. Id. at 27,720. ATF 

received over 290,000 public comments in response to the Notice. Final Rule at 24,654.

In its NPRM, ATF proposed a new definition which stated:

Partially complete, disassembled, or nonfunctional frame or receiver. The terms “frame” 

or “receiver” 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 projective weapon other than a handgun, or 

internal sound reduction component of a firearm muffler or firearm silencer, as the case 

may be. The terms 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. 

87 Fed. Reg. at 24,739. Numerous commentators expressed concerns that the proposed new 

definition was not only vague, id. at 24,678, but would also rewrite 18 U.S.C. § 921(a)(3) by 

treating receiver blanks as regulated products, contrary to ATF’s longstanding legal position that 

such products do not fall within ATF’s regulatory jurisdiction. Id. at 24,699. 

The public submitted numerous comments in response to the NPRM explaining, among 

other things, the serious problems with the agency’s proposed definition of “frame or receiver,” 

which would have classified countless firearm parts as firearms, resulting in many modern firearms 

containing numerous different frames and receivers. In response, ATF agreed that the NPRM’s 

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definition of “frame or receiver” was flawed, in that firearms cannot contain “as many as ten 

frames and receivers.” Final Rule at 24,692. 

However, rather than amending the NPRM or formally proposing a new definition and

providing adequate time to receive public comment thereon, ATF instead simply wrote a new

definition of “frame or receiver” and promulgated it as a regulation in the Final Rule without any 

opportunity for notice and comment. The Final Rule admits as much: “Whereas the proposed rule 

would have considered any housing or structure for any fire control component a frame or receiver, 

the final rule ... provid[es] new distinct definitions ... describing a specific housing or structure for 

one specific type of fire control component.” Id. at 24,693 (emphasis added).

Commentators repeatedly noted that in four decades of classification determinations issued 

to manufacturers, ATF has consistently stated that receiver blanks do not meet the definition of a 

regulated “firearm” under federal law. Indeed, there is nothing in the GCA that states a receiver 

blank is a “firearm”. Nevertheless, the Final Rule expressly repudiates ATF’s prior classification 

determinations:

Prior determinations by the Director that a partially complete, disassembled, or 

nonfunctional frame or receiver, including a parts kit, was not, or did not include, a “firearm 

frame or receiver” under § 478.11, or “frame or receiver” under § 479.11, as those terms 

were defined prior to April 26, 2022, shall not continue to be valid or authoritative after 

that date. Such determinations shall include those in which the Director determined that 

the item or parts kit had not yet reached a stage of manufacture to be, or include, a “firearm 

frame or receiver” under § 478.11, or “frame or receiver” under § 479.11, as those terms 

were defined prior to April 26, 2022.

87 Fed. Reg. at 24,741. Multiple commentators accurately noted ATF’s complete reversal of its 

long-standing legal position seemed arbitrary and capricious on its face—a criticism that the 

Agencies were unable to rebut or adequately explain in manner consistent with logic and the text 

of the GCA. See Final Rule at 24,689.

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IV. PUBLICATION OF THE FINAL RULE

The Final Rule was published on April 26, 2022 and scheduled to take effect on August 

24, 2022.

The Final Rule amends 27 C.F.R. § 478.11 by adding the following fifth category to the 

definition of a “firearm,” which has no basis in the statutory text of 18 U.S.C. § 921(a)(3):

The term shall include 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. The term shall 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.” 

87 Fed. Reg. at 24,735 (emphasis added). Under this new provision, a collection of parts, none of 

which independently constitutes a firearm, could nonetheless be characterized by the government 

as a firearm based on a subjective determination that the items, when grouped together, can 

“readily” be assembled into a firearm. And if not the collection of parts, but possibly several parts

combined with tools and/or jigs and/or instructions might be deemed capable of being “readily” 

assembled into a firearm and therefore fit the definition of “weapon parts kit”. 

The Final Rule newly defines “readily” as 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.” Final Rule at 24,735; see also id. at 24,747. The Final Rule 

then provides a non-exclusive list of eight unranked, unweighted factors relevant to the 

determination of readily-ness, none of which is dispositive:

(a) Time, i.e., how long it takes to finish the process.

(b) Ease, i.e., how difficult it is to do so.

(c) Expertise, i.e., what knowledge and skills are required.

(d) Equipment, i.e., what tools are required.

(e) Parts availability, i.e., whether additional parts are required, and how easily they can 

 be obtained.

(f) Expense, i.e., how much it costs.

(g) Scope, i.e., the extent to which the subject of the process must be changed to finish it.

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(h) Feasibility, i.e., whether the process would damage or destroy the subject of the 

 process, or cause it to malfunction.

Final Rule at 24,735.

Prior to the Final Rule, 27 C.F.R. § 478.11 provided a one-sentence definition of a “firearm 

frame or receiver” as: “That part of a firearm which provides housing for the hammer, bolt or 

breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive 

the barrel.” The Final Rule replaces the above one-sentence definition with the following:

(a) Except as otherwise provided in this section, the term “frame or receiver” means the 

following—

(1) The term “frame” means the part of a handgun, or variants thereof, that provides 

housing or a structure for the primary energized component designed to hold back the 

hammer, striker, bolt, or similar component prior to initiation of the firing sequence (i.e., 

sear or equivalent), even if pins or other attachments are required to connect such 

component to the housing or structure.

(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.

(3) The terms “variant” and “variants thereof” mean a weapon utilizing a similar frame or

receiver design irrespective of new or different model designations or configurations, 

characteristics, features, components, accessories, or attachments. For example, an AKtype firearm with a short stock and a pistol grip is a pistol variant of an AK-type rifle, an 

AR-type firearm with a short stock and a pistol grip is a pistol variant of an AR-type rifle, 

and a revolving cylinder shotgun is a shotgun variant of a revolver. 

Final Rule at 24,735. The Final Rule also provides various examples of how ATF’s new definition 

purportedly comports with most frame/receiver classifications that already have been made by 

ATF. Id. at 24,735–38. 

To summarize, pursuant to the Final Rule, the definition of a “firearm” or “frame or 

receiver” turns on whether the product “may readily be completed, assembled, restored, or 

otherwise converted to function as a frame or receiver” with the definition of readily, in turn, 

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requiring the ATF to identify the presence (or perhaps absence) (or perhaps some quantum of 

applicability that will provided at a future date) of the characteristics represented in the 

nonexclusive eight-factor list provide above. 

The Agencies assert that ATF’s original definition of “frame or receiver” was meant to 

provide direction as to which portion of a weapon is the frame or receiver for purposes of licensing, 

serialization, and recordkeeping. Final Rule 24,652. The Agencies contend that the prior definition

would not describe the frame or receiver of most current firearms, because in most modern weapon 

designs, the relevant fire control components either are housed by more than one part of the 

weapon or incorporate a striker rather than a hammer to fire the weapon. Id. However, the starting 

point for Defendants’ argument is a critique of the statutory definition that is anything but modern

and is something the Agencies have embraced from the time the GCA was first enacted in 1968. 

The Final Rule admits that “[a]t the time the current definitions were adopted [1968], there 

were numerous models of firearms that did not contain a part that fully met the regulatory 

definition of ‘frame or receiver,’ such as the Colt 1911, FN-FAL, and the AR-15/M-16....” Final 

Rule at 24,655. ATF suggests that the above examples and any “split/multi-piece receiver 

firearms” in use as of 1968 would fall outside the statutory definition of “frame or receiver”, but 

claims “ATF’s position has long been that the weapon ‘should be examined with a view toward 

determining if [either] the upper or lower half of the receiver more nearly fits the legal definition 

of ‘receiver’...” Id. (emphasis added).

The Final Rule concedes that “ATF for decades has classified the lower receiver of the 

AR–15 rifle as a ‘frame or receiver’” on the grounds that it “more nearly fits” the legal definition, 

an admission that the tension between agency regulations and the GCA definition is not the result 

of recent advancements in gunmaking technology. Rather, it has been present since passage of the 

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GCA and throughout the five decades in which ATF used the “more nearly fits” rubric, without 

seeking to formally expand the statutory definition established by Congress. ATF’s abandonment 

of its permissible, consistent interpretation of the GCA and the limits of the regulatory definitions 

has little to do with the fact that “some courts recently have treated the regulatory definition as 

inflexible when applied to the lower portion of the AR–15-type rifle”, id., a development that has 

nothing to do with modern technological advancements but more to do with ATF’s obedience to a 

White House that “will not wait for Congress to act” to attain its gun control objectives.

7

 

The Final Rule jettisoned decades of classification determinations, including scores of 

detailed technical analyses, measurements, and images cumulatively comprising a library of 

publicly available guidance that was objective, quantitative, understandable and in alignment with 

the limitations established by the GCA. Simultaneously, the Final Rule introduced a series of 

definitional phrases—e.g., “partially complete,” “may readily be completed, assembled, restored, 

or otherwise converted,” and “stage of manufacture where it is clearly identifiable as an unfinished

component part of a weapon”—that are subjective, qualitative, and patently susceptible to 

divergent interpretations. These phrases, when combined with the Final Rule’s authorization of 

the ATF Director to “consider any associated templates, jigs, molds, equipment, tools, instructions, 

guides, or marketing materials,” effectively delegate to the ATF Director unbounded discretion to 

unilaterally determine the reach of ATF’s jurisdiction over any raw materials, components, 

fabrication tools, and documentation utilized or involved in the firearm manufacturing process and 

supply chain. Id. at 24,739. 

7 Fact Sheet: Biden-Harris Administration Announces Initial Actions to Address the Gun Violence 

Public Health Epidemic, THE WHITE HOUSE (Apr. 7, 2021), https://www.whitehouse.gov/briefingroom/statements-releases/2021/04/07/fact-sheet-biden-harris-administration-announces-initialactions-to-address-the-gun-violence-public-health-epidemic/. 

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During the notice and comment period, numerous commentators highlighted the subjective 

nature of the Final Rule’s new definitions and expressed strong concern that the Final Rule’s 

vagueness make it impossible for manufacturers, distributors, and customers to understand which 

product designs are regulated by the Final Rule and which are not. Final Rule at 24,677–79. 

Commentators noted the Final Rule’s ambiguities will create profound uncertainty given the 

potential criminal penalties for violations and will create substantial waste in determining which 

facets of the firearms manufacturing supply chain require a federal firearms license (“FFL”). Id. 

at 24,677–79. 

 The Final Rule’s response is at once confusing and contradictory. On the one hand, the 

Final Rule claims that “[t]o minimize disruption and cost to the licensed firearms industry as much 

as possible ... this rule grandfathers existing complete frame or receiver designs previously 

determined by the Director to be the firearm ‘frame or receiver’ of a given weapon.” Id. at 24,654. 

The Final Rule also creates as a definition Section 478.12(f), grandfathering “[f]rame or receiver 

classifications based on which part of the weapon was classified as such before April 26, 2022 ... 

including variants thereof”, id. at 24,739, and provides “a wide variety of examples and pictures 

to illustrate the frame or receiver of popular models and variants thereof ... previously classified 

by ATF that are grandfathered....” Id. at 24,693. But on the other hand, the Final Rule says that 

“letter rulings are only applicable for the precise sample submitted to ATF,” and cautions that its 

classifications can be “misapplied (as some have done) to other items that may appear similar, but 

have legally important differences.” Id. at 24,691. Nowhere in the Final Rule does ATF 

acknowledge, much less attempt to explain or reconcile, the internal contradictions in its own 

guidance such that the average citizen can determine whether their “frame”, “receiver” or “variant” 

is qualified for grandfathering under a classification letter but is not “misapplied”. 

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In purporting to “interpret” provisions of the Gun Control Act that have existed since 1968, 

ATF suddenly now advances new interpretations, understandings, and applications of the statutory 

text that the agency apparently never new existed until now, more than a half century later, many 

of which implicate substantial economic concerns, potential exposure to criminal liability, and 

impact fundamental constitutional rights. It is little wonder that ATF anticipated that portions of 

the Final Rule might be struck down. See Final Rule at 24,730. 

LEGAL STANDARD 

A. Summary Judgment 

Summary judgment should be granted when “there is no genuine dispute as to any material 

fact and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex 

Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). “APA cases are often resolved at summary 

judgment because whether an agency's decision is arbitrary and capricious is a legal question that 

the court can usually resolve on the agency record.” Amin v. Mayorkas, 24 F.4th 383, 391 (5th Cir. 

2022). Summary judgment is “an integral part of the Federal Rules as a whole, which are designed 

to secure the just speedy and inexpensive determination of every action.” Little v. Liquid Air Corp., 

37 F.3d 1069, 1075 (5th Cir. 1994) (citing Celotex, 477 U.S. at 317). 

B. APA Standard 

The APA requires “the reviewing court” to “hold unlawful and set aside agency action, 

findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law,” or “contrary to constitutional right, power, privilege, or immunity.” 

5 U.S.C. § 706(2)(A)–(B). Pursuant to the APA, federal courts therefore regularly vacate 

unconstitutional agency actions. See Chamber of Commerce v. U.S. Dep’t of Labor, 885 F.3d 360, 

384, 388 (5th Cir. 2018). 

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1. Notice and Comment Requirements

After publishing notice in the Federal Register of “the terms or substance of the proposed 

rule or a description of the subjects and issues involved,” the agency “shall give interested persons 

an opportunity to participate in the rule making through submission of written data, views, or 

arguments.” 5 U.S.C. § 553(b), (c). That opportunity must be “meaningful”, which requires the 

final rule to be “a logical outgrowth” of the proposed rule “in the sense that the original notice

must adequately frame the subjects for discussion.” Nat’l Lifeline Ass’n v. Fed. Commc’ns 

Comm’n, 921 F.3d 1102, 1115 (D.C. Cir. 2019) (internal quotations omitted). “APA notice 

requirement is satisfied if the notice fairly apprises interested persons of the subjects and issues 

the agency is considering.” Chem. Mfrs. Ass’n v. U.S. E.P.A., 870 F.2d 177, 203 (5th Cir.), decision 

clarified on reh’g, 885 F.2d 253 (5th Cir. 1989).

2. “Arbitrary and Capricious” 

The APA directs courts to set aside agency action that is “arbitrary [and] capricious.” 5 

U.S.C. § 706(2) (A). A court must set aside agency action if the agency “entirely failed to consider 

an important aspect of the problem, offered an explanation for its decision that runs counter to the 

evidence before the agency, or is so implausible that it could not be ascribed to a difference in 

view or the product of agency expertise.” Sw. Elec. Power Co. v. EPA, 920 F.3d 999, 1013 (5th 

Cir. 2019). A rule may be found arbitrary and capricious if the agency failed to “examine the 

relevant data and articulate a satisfactory explanation for its action”, id. (internal quotations 

omitted), or failed to “respond to relevant and significant public comments in a reasoned way.” 

Mozilla Corp. v. FCC, 940 F.3d 1, 69–70 (D.C. Cir. 2019) (per curiam) (quotation marks omitted). 

Further, a rule is arbitrary and capricious if it changes a prior policy which has “engendered serious 

reliance interests” but which the agency has failed to properly consider in its rulemaking. Wages 

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& White Lion Invs., L.L.C. v. United States Food & Drug Admin., 16 F.4th 1130, 1139 (5th Cir. 

2021). 

3. “Contrary to Constitutional Right”; “Not in Accordance with Law” 

The APA provides that a reviewing court must set aside agency action that is “contrary to 

constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). “The intent of Congress 

in 5 U.S.C. § 706(2)(B) was that courts should make an independent assessment of a citizen’s 

claim of constitutional right when reviewing agency decision-making.” Texas Off. of Pub. Util. 

Couns. v. F.C.C., 183 F.3d 393, 410 (5th Cir. 1999) (citing Porter v. Califano, 592 F.2d 770, 780 

(5th Cir. 1979)). Regardless of whether an agency action might be justified on some other basis, 

if it “is based upon a determination of law,” then it “may not stand if the agency has misconceived 

the law.” SEC v. Chenery Corp., 318 U.S. 80, 94 (1943); Sea-Land Serv., Inc. v. Dep’t of Transp., 

137 F.3d 640, 646 (D.C. Cir. 1998) (“An agency action, however permissible as an exercise of 

discretion, cannot be sustained where it is based not on the agency’s own judgment but on an 

erroneous view of the law.”) (cleaned up). 

ARGUMENT

The Final Rule should be held unlawful and set aside for several reasons. The most basic,

as this Court found previously and as Plaintiffs’ have briefed recently,

8 is that its core provisions 

exceed ATF’s authority under the GCA and therefore are unlawful on their face and “not in 

accordance with law” under the APA. 5 U.S.C. § 706(2)(A). These and other of the Final Rule’s 

defects are incurable and render the Final Rule unworkable and subject to vacatur in its entirety. 

8 BlackHawk incorporates by reference its Complaint (ECF No. 99), Briefs in Support of 

Intervention (ECF No. 77), Preliminary Injunction (ECF No. 103), and Supplemental Brief on the 

Consolidated Adjudication of Count I. (ECF No. 134). 

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I. THE FINAL RULE VIOLATES THE APA AND MUST BE SET ASIDE 

A. The Final Rule Was Not a Logical Outgrowth of the Notice and Failed to 

Satisfy the Public Participation Requirements of the APA

Defendants’ rulemaking renders the Final Rule procedurally defective. It is not a logical 

outgrowth of the NPRM. The Agencies made material changes between the proposed and final 

versions of the Rule to critical definitions, including “frame or receiver” and “partially complete” 

items. The Agencies also failed to identify all of the sources they relied upon until publication of 

the Final Rule, depriving the public and regulated entities adequate notice of and meaningful 

opportunity to participate in the rulemaking process as required under the APA. 5 U.S.C. § 553(c)

(rulemaking requires an agency to “give interested persons an opportunity to participate in the rule 

making through submission of written data, views, or arguments” and to give “consideration of 

the relevant matter presented”).

As discussed, infra at 24–25, in response to the NPRM, the public submitted comments to 

ATF explaining, among other things, the serious problems with the agency’s proposed definition 

of “frame or receiver,” which would have classified countless firearm parts as firearms, resulting 

in many modern firearms containing numerous different frames and receivers. In response, ATF 

specifically addressed those comments agreeing that the NPRM’s definition of “frame or receiver” 

was flawed, in that firearms cannot contain “as many as ten frames and receivers.” Final Rule at 

24,692. 

However, rather than amending the NPRM or formally “proposing” a new definition and 

seeking public comment thereon, ATF instead simply wrote a new definition of “frame or receiver” 

and promulgated it as a regulation in the Final Rule without any opportunity for notice and 

comment. As the Final Rule explained, “[w]hereas the proposed rule would have considered any 

housing or structure for any fire control component a frame or receiver, the final rule ... provid[es] 

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new distinct definitions ... describing a specific housing or structure for one specific type of fire 

control component.” Id. at 24,693 (emphasis added).

The NPRM revised the definition of “frame or receiver” into four sub-categories, each with 

a discrete definition: (a) “Firearm muffler or silencer frame or receiver”; (b) “Split or modular 

frame or receiver”; (c) “Partially complete, disassembled, or inoperable frame or receiver”; and 

(d) “Destroyed frame or receiver.” NPRM at 27,741–46. In addition, four “nonexclusive examples 

that illustrate” the definition of “frame or receiver” were included in the NPRM, id. at 27,741–42, 

and “a nonexclusive list” of nine weapons with “split or modular frame receivers” where the 

“Director has previously determined that a specific part is the frame or receiver[.]” Id. at 24,743–

44.

In the Final Rule, however, the Agencies did not include any definition of “frame or 

receiver”, instead amending 27 C.F.R. § 478.11 to say that “[t]he term ‘frame or receiver’ shall 

have the same meaning as in § 478.12.” Final Rule at 24,735. But the newly minted 27 C.F.R. § 

478.12 skips past providing any baseline, starting-point definition of “frame or receiver” and

instead provides an expanded list of sub-categories, each with its own definitions: (a)(1) “frame”; 

(a)(2) “receiver”; (a)(3) “variant” and “variants thereof”; (a)(4) ten “nonexclusive examples that 

illustrate the above definitions”; (b) “Firearm muffler or silencer frame or receiver”; (c) “Partially

complete, disassembled, or nonfunctional frame or receiver,” with five examples; (d) “Multi-piece 

frame or receiver”; (e) “Destroyed frame or receiver”; (f)(1) “Frame or receiver classifications 

based on which part of the weapon was classified as such before April 26, 2022,” with four 

classification examples; and (f)(2) “Frame or receiver classifications of partially complete, 

disassembled or nonfunctional frames or receivers before April 26, 2022.” Final Rule, at 24,735–

41. 

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Instead of the single definition with four subparts provided in the NPRM, the Final Rule 

introduced a nearly ten-part definition describing terms and concepts that never appeared in the 

NPRM, and for which commenters were given no meaningful opportunity to consider. The NPRM 

gave no indication that “frame or receiver,” which had been conjunctively defined since the 

Agencies’ first regulation, would be split into three parts—“frame”, “receiver”, and “variant”—

accompanied by never-before-seen example illustrations. The public could not have anticipated

the adoption of the new terms like “multi-piece frame or receiver,” that do not correspond to the 

Agencies’ definition of “split or modular frame or receiver” in the NPRM. See Nat’l Lifeline Ass’n 

v. Fed. Commc’ns Comm’n, 921 F.3d 1102, 11116 (D.C. Cir. 2019) (final rule not a logical 

outgrowth where particular definition of “rural” lands was not mentioned in NPRM).

The Final Rule introduces derivatives of definitions that evolved after the NPRM. For 

instance, “privately owned firearms marked by nonlicensees” appears nowhere in the NPRM, but 

is defined in the Final Rule, id. at 24,743, and appears to comprise yet another subcategory of 

“firearms” that has no recognizable link to the GCA, but over which ATF intends to assert

enforcement power by a newly-expanded definition of gunsmith that is responsible for marking 

privately owned firearms. Compare NPRM at 27,742 with Final Rule at 24,734. This change 

happened without proving notice to the public or opportunity for meaningful comment by the 

gunsmiths and citizens whose privately owned firearms are now implicated. 

Because Defendants failed to provide fair notice of and opportunity to meaningfully 

comment on the above definitions in the Final Rule, these provisions are not the “logical 

outgrowth” of the NPRM, in violation of the APA. Tex. Ass’n of Mfrs., 989 F.3d at 381 (“Final 

rules under the APA notice-and-comment rulemaking must be the ‘logical outgrowth’ of the 

proposed rule.”). 

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B. The Final Rule Is Arbitrary and Capricious 

The text and background of the GCA reflect a deliberate decision by Congress to not 

regulate each and every part of a “firearm.” The GCA replaced the Federal Firearms Act of 1938

(“FFA”) which did regulate all firearms parts. Pub. L. 75-785, 52 Stat. 1250 (1938); 26 CFR § 

177.10 (repealed). The FFA included an expansive definition of “firearm” as “any weapon, by 

whatever name known, which is designed to expel a projectile or projectiles by the action of an 

explosive and a firearm muffler or firearm silencer, or any part or parts of such weapon.” Id. 

(emphasis added).

In repealing the FFA and replacing it with the GCA in 1968, Congress determined that 

regulating all component parts of a firearm was impractical and crafted a statutory definition of 

“firearm” that included the “frame or receiver”—but no other parts—of a firearm. See 111 Cong. 

Rec. 5527 (March 22, 1965) (“The present definition of this term includes ‘any part or parts’ of a 

firearm. It has been impractical to treat each small part of a firearm as if it were a weapon. The 

revised definition substitutes the words ‘frame or receiver’ for the words ‘any part or parts.”); see 

also H.R. Rep. 90-1577, at 4416 (June 21, 1968) (“Under former definitions of ‘firearm,’ any part 

or parts of such a weapon were included. It was found impractical to have controls over each small 

part of a firearm. Thus, this definition includes only the major parts of the firearm, that is, the 

frame or receiver.”).

The Agencies began the rulemaking process with the clear recognition that the GCA 

reflects a congressional intent not to regulate all parts of a firearm. See NPRM at 27,720 

(“Congress recognized that regulation of all firearm parts was impractical.”). However, the Final 

Rule introduces the novel term “weapon parts kit”, which this Court has already found conflicts 

with the GCA’s definition of firearm. ECF No. 56 at 12 (“That language conflicts with the statute’s 

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definition of ‘firearm.’”). The Agencies provide no explanation for the contradiction between this 

term in the Final Rule which expressly regulates weapon parts and ATF’s admission in the NPRM 

that the GCA does not regulate weapon parts. 

Where a statute’s ordinary meaning is plain, “that is the end of the matter,” for the Court 

as well as the agency. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 and

n.9 (1984). “[A]n agency may not rewrite clear statutory terms to suit its own sense of how the 

statute should operate.” Utility Air Reg. Grp. v. EPA, 573 U.S. 302, 328 (2014); see also, e.g., 

Nat’l Pork Producers Council v. EPA, 635 F.3d 738, 753 (5th Cir. 2011). ATF, however, did 

exactly that in promulgating the Final Rule that defines firearm “parts” to make the term 

synonymous with GCA “firearm”.9

 

The GCA does not include in its definition of “firearm” merely “items” that can be 

constructed into a firearm, but rather only a “weapon” or “the frame or receiver of any such 

weapon.” 18 U.S.C. § 921(a)(3). Under either category of Section 921(a)(3), in order to be a 

“firearm,” there must be a “frame or receiver,” which is every “firearm’s primary structural 

component.” By contrast, by ATF’s own admission, a prohibited “weapon parts kit” does not 

contain a “frame or receiver,” but merely an unfinished and incomplete part that could be 

constructed into a frame or receiver. ECF No. 41 at 27; see ECF No. 56 at 10 (ATF may not 

“regulate a component as a ‘frame or receiver’ even after ATF determines that the component in 

question is not a frame or receiver.”).

9 This Court’s recent consideration of the term “part” may serve as useful reference point to 

confirm what is linguistically apparent in ordinary usage. See United States v. Forkner, 584 F. 

Supp. 3d 180, 187 (N.D. Tex. 2022) (“[C]onstruing the statute to apply to tangible objects accords 

with the ordinary usage of the word ‘part.’ One might reasonably say that computer code is part 

of an aircraft, but it stretches ordinary usage to say that computer code is an aircraft part.”).

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But the Agencies took the opposite position in their response to comments on the NPRM.

The Agencies simply “disagree[d] with commenters’ suggestion” that the Agencies could not use 

the “concepts of ‘readily’ and ‘converted’” in the definition of “frame or receiver.” Final Rule at 

24,685. Citing no legal authority for the change, the Agencies simply offer the conclusory assertion 

that their position in the Final Rule is “appropriate” because the act of manufacturing is also the 

act of converting. Id. Defendants’ self-serving, substance-free responses do not adequately explain 

or identify the authority to support their change in position—a rulemaking deficiency that renders 

the Final Rule arbitrary and capricious under the APA. See Gulf Fishermens Ass’n v. Nat’l Marine 

Fisheries Serv., 968 F.3d 454, 465 (5th Cir. 2020) (broad statutory “grant of authority over ‘any 

fishery’ and ‘any stock of fish,’ still depends on whether the relevant stock is a ‘fishery,’ which, 

in turn, turns on the definition of ‘fishing.’ ... nothing in the definition plausibly suggests the 

agency has been given authority to regulate aquaculture.”), as revised (Aug. 4, 2020). 

Defendants likewise do not adequately explain the NPRM and Final Rule’s suggestions 

that a firearm can have multiple frames or receivers. Despite the absence of any ambiguity in the 

GCA’s provision that a “firearm” can have only one “frame or receiver”, the NPRM originally

proposed the “possibility a firearm may have more than one frame or receiver....” NPRM at 27,734. 

After receiving comments to the contrary, ATF conceded that Final Rule “agrees with 

commentators that the definition of ‘firearm’ in 18 U.S.C. Section 921(a)(3)(B) is best read to 

mean a single part of a weapon or device as being ‘the’ frame or receiver,” and “whereas the 

proposed rule would have considered any housing or structure for any fire control component a 

frame or receiver, the final rule focuses these definitions by describing a specific housing or 

structure for one specific type of fire control component.” Final Rule at 24,692–93. 

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But while admitting the NPRM offered an incorrect understanding of the GCA, the Final 

Rule nevertheless fails to offer any substantive explanation and simply says that ATF “disagrees” 

that the statute “must be read to mean that a firearm may not have more than one frame or receiver,” 

and asserts that “it is possible that the term ‘frame,’ for example, could be referring to multiple 

frames within a handgun, or both a frame and a receiver in a split handgun design.” Id. at 24,683 

(emphasis added). In short, the Final Rule admits the NPRM was wrong on the central definition 

in the GCA, but indicates that anything is possible when it comes to interpretations in the future. 

The Agencies take contradictory positions in the Final Rule that cannot be reconciled with the text 

of the GCA or ATF’s positions elsewhere in the Final Rule—demonstrating the kind of arbitrary 

and capricious rulemaking that is nor permitted under the APA. See Policy & Research, LLC v. 

HHS, 313 F. Supp. 3d 62, 72 (D.D.C. 2018) (“[A]n agency acts arbitrarily and capriciously if it 

acts in a manner that is contrary to its own regulations or a congressional statute.”).

The arbitrary and capricious nature of the Final Rule’s regulation of “firearm parts” 

becomes even more pronounced when ATF’s litigation positions are considered. In recent court 

filings, ATF has admitted that “Congress has chosen to exclude firearms parts from the scope of 

the GCA, including parts that could be assembled with a homemade receiver and frame to make a 

firearm.” California v. ATF, 3:20-cv-06761 (N.D. Ca.) (ECF No. 29, Govt. Motion to Dismiss).

In the NPRM, ATF explained that “[p]rior to passage of the GCA, the Federal Firearms Act of 

1938 (‘FFA’) regulated all firearm parts,” but that “[d]uring debate on the GCA and related bills 

introduced to address firearms trafficking, Congress recognized that regulation of all firearm parts 

was impractical.” NPRM at 27,720.

The Agencies repeatedly cite advancements in technology as grounds for the Final Rule, 

but the Agencies fail to provide a satisfactory explanation or data-supported rationale for ATF’s

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abandonment from its own prior interpretation of the GCA. Defendants’ departure from prior 

practice in several areas serves as an additional basis for finding ATF’s action to be arbitrary and 

capricious. As discussed above, in the Final Rule ATF dispensed with countless of its prior 

determinations and classifications—despite the significant reliance such guidance had cultivated 

among industry and the public—and adopted entirely new approaches and practices with respect 

to interpreting and applying the statutes it is tasked with enforcing. But throughout the Final Rule, 

ATF fails to even acknowledge its prior positions or concede that it is changing its position, much 

less address the impact of its policy reversals on those who have come to rely upon the Agencies 

prior positions and guidance, including the courts. See Encino Motorcars, LLC v. Navarro, 579 

U.S. 211, 222 (2016) (“[B]ecause of decades of industry reliance on the Department’s prior 

policy—the explanation fell short of the agency’s duty to explain why it deemed it necessary to 

overrule its previous position.”).

Indeed, the Final Rule specifically rescinded in its entirety decades of prior classification 

determinations on partial frames or receivers, id. at 24,741, completely putting at risk for criminal 

enforcement not only those selling such non-regulated products for the homemade firearms 

market, but those in the regular FFL manufacturing supply chain (machine shops) who are not 

ATF licensed and are not required to be in order to make partial frames or receivers (deemed nonfirearms by ATF’s prior classification letters) for further manufacturing by their FFL 

manufacturing customers into regulated receivers and frames. These unlicensed vendors can no 

longer rely on prior ATF guidance and are now at risk of being charged with unlicensed firearms 

manufacturing unless new classification submissions are filed with ATF. Such new determinations 

can take from one to two years, potentially forcing unnecessary ATF licensing while waiting for a 

decision, or disrupting supply chains, including those for law enforcement and military customers. 

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Defendants’ dogged refusal to fully acknowledge or adequately explain numerous specific 

concerns raised regarding unlawful provisions of the Final Rule provides a case study in arbitrary 

and capricious rulemaking for the which the APA and federal precedent provide the appropriate 

corrective remedy; the Final Rule must be set aside. 

C. The Final Rule Is Contrary to Constitutional Right and Not in Accordance 

with Law

“It is axiomatic that an administrative agency’s power to promulgate legislative regulations 

is limited to the authority delegated by Congress.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 

204, 208 (1988). As creatures of statutory origin, agencies are “restrained by the four corners of 

its enabling statute and ‘literally ha[ve] no power to act unless and until Congress confers power 

upon [them].’” Collins v. Mnuchin, 938 F.3d 553, 562 (5th Cir. 2019) (en banc) (quoting New York 

v. FERC, 535 U.S. 1, 18 (2002)), cert. granted, ––– U.S. ––––, 141 S. Ct. 193 (2020) (mem.)

The Fifth Circuit has previously considered a federal agency’s efforts to extend its 

regulatory reach beyond what Congress authorized in the plain text of the statute. In Nat’l Pork 

Producers Council v. U.S. E.P.A., 635 F.3d 738 (5th Cir. 2011), the Fifth Circuit recounted EPA’s 

several attempts to impermissibly expand its regulatory reach and “impose liability that is in excess 

of its statutory authority.” Id. at 753. The court acknowledged the role of Chevron deference where 

the underlying statute is ambiguous, but emphasized that “courts are not obliged to stand aside and 

rubberstamp their affirmance of administrative decisions that they deem inconsistent with the 

statutory mandate or that frustrate the congressional policy underlying a statute.” Id. (internal 

quotes omitted). “To this end, the Supreme Court has explained: ‘Agencies may play the sorcerer’s 

apprentice but not the sorcerer himself.’... In other words, an agency’s authority is limited to what 

has been authorized by Congress.” Id. (quoting Alexander v. Sandoval, 532 U.S. 275, 292 (2001)). 

In short, “[a]gency authority may not be lightly presumed.” Texas v. United States, 497 F.3d 491, 

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502–503 (5th Cir. 2007) (“‘Were courts to presume a delegation of power absent an express 

withholding of such power, agencies would enjoy virtually limitless hegemony, a result plainly 

out of keeping with Chevron and quite likely with the Constitution as well.’” (quoting Ethyl Corp. 

v. EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995)). Here, Defendants sought to “play the sorcerer” in 

promulgating newly invented definitions by which ATF could begin regulating what Congress has 

repeatedly denied. 

The Final Rule invents an entirely new term, “privately made firearm” (“PMF”), which has 

never existed prior to the Final Rule, as there is no federal prohibition on an individual 

manufacturing his own firearm for personal use. Final Rule at 24,735. The GCA does not regulate 

privately made firearms, does not require they be marked with serial numbers, and certainly does 

not impose risk of criminal prosecution against non-prohibited persons from making their own 

firearms as the Final Rule now dictates. Nevertheless, the Final Rule will require a firearms dealer 

to engrave a serial number on a firearm legally manufactured by an individual. Id. ATF’s creation 

of a new definition of “privately made firearm” is a bald attempt to claim the authority to regulate 

privately made firearms where no such authority exists.

The Final Rule also appears to create new federal crimes of “criminal conspiracy” to sell 

and “structuring” to purchase unregulated firearm parts. Compare NPRM at 27,726 n.45 with Final 

Rule at 24,714. Neither of these crimes have ever been identified as part of the GCA, under which 

it is perfectly lawful for a citizen who is not otherwise prohibited under law from owning, 

possessing or receiving firearms, to make or complete a homemade firearm for personal use from 

an unfinished receiver or frame and to commercially sell such unregulated parts, instructions, and 

tooling helpful or essential to making a personal firearm without being licensed as a manufacturer 

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or dealer. The Final Rule, however, now introduces the notion that there exists some vague 

category of activities by which one can “structure” or “conspire” to violate the GCA. 

In the NPRM, the Agencies claimed it was necessary for ATF to take action to regulate 

privately made firearms “because PMFs do not bear a serial number,” and thus “ATF has found it 

extremely difficult to complete [] traces on behalf of law enforcement....” NPRM at 27,724; see 

also id. at 27,723 (claiming PMFs “hamstring[] law enforcement’s ability to investigate crimes,” 

and claiming “terrorists” use PMFs.). 

The Final Rule echoes the NPRM, claiming that “technological advancements” in 

homemade gunmaking “make[] it extremely difficult for law enforcement to” track them. Final 

Rule at 24,656. However, without specifying any statutory authorization, the Final Rule simply 

asserts that “[t]he GCA provides that all firearms received and transferred by FFLs must be 

traceable”—i.e., serialized—and “[t]here is no exception for PMFs.” Id. at 24,687; see also id. at 

24,706 (“PMFs must be marked with a traceable serial number,” and permitting otherwise 

“undermines the entire purpose of maintaining transactions records and other required records”). 

The APA does not permit an agency to grant itself regulatory power on the basis that

“technological advancements” make it difficult to reach an activity that the authorizing statute 

does not regulate in the first place. While the regulation of privately made firearms may be part of 

a wish list of policy proscriptions that gun control activists have long demanded, Congress has 

never seriously considered and certainly not passed any law granting the regulatory power ATF 

seeks to wield under the Final Rule. 

The Agencies contend that the expansive revision of existing definitions and the 

introduction of brand new terms in the Final Rule are necessary to achieve the purpose for which 

the GCA was enacted. See Final Rule at 24,686. But court’s encountering similar arguments have 

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rejected an agency’s “whatever-it-takes” approach to regulation predicated on Congress’s 

allegedly broad purposes for a statute. Texas v. United States, 497 F.3d 491, 502 (5th Cir. 2007)

(citing Platte River Whooping Crane Critical Habitat Maint. Trust v. FERC, 962 F.2d 27, 33 (D.C.

Cir. 1992) (appeals to a statute’s broad purposes do not allow the discovery of implicit delegations 

of authority when Congress has explicitly delineated the boundaries of delegated authority)). 

“When Congress has directly addressed the extent of authority delegated to an 

administrative agency, neither the agency nor the courts are free to assume that Congress intended 

the Secretary to act in situations left unspoken.” Texas, 497 F.3d at 502 (citing Nat’l R.R. 

Passenger Corp. v. Nat’l Ass’n of R.R. Passengers, 414 U.S. 453, 458 (1974) (“When a statute 

limits a thing to be done in a particular mode, it includes the negative of any other mode.”)). 

“Accordingly, administrative agencies and the courts are ‘bound, not only by the ultimate purposes 

Congress has selected but by the means it has deemed appropriate, and prescribed, for the pursuit 

of those purposes.’” Id. (quoting MCI Telecomm. Corp. v. AT&T Co., 512 U.S. 218, 231 n.4 (1994)

(emphasis added)). 

The Final Rule upends existing federal gun law and creates new federal crime with respect 

to the newly created definition of what ATF calls a “privately made firearm” (abbreviated as 

“PMF”)—a term that does not does not exist, and has not ever existed, within federal law. That is 

because there is no federal prohibition on non-prohibited individuals who privately manufacture 

firearms for their own personal use, no prohibition on transferring a firearm that originally was 

made for personal use, and no statute that requires such firearms be marked with any serial number, 

recorded in the books of any dealer, or obtained only after a background check. Accordingly, 

ATF’s attempt to create a new definition of “privately made firearm” signifies agency’s naked

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intent to rewrite the statute in order to claim the authority to regulate privately made firearms, 

where such authority does not currently exist.

ATF defends its actions on the theory that it “must” rewrite the law in order to give

purported effect to the perceived intent of Congress, but ignores the long-established principle that 

“Congress alone has the institutional competence, democratic legitimacy, and (most importantly) 

constitutional authority to revise statutes in light of new social problems and preferences.”

Wisconsin Central Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018). “Until [Congress]

exercises that power, the people may rely on the original meaning of the written law.” Id. 

The Supreme Court has made clear that “[a]n agency has no power to ‘tailor’ legislation to 

bureaucratic policy goals by rewriting unambiguous statutory terms ... to suit its own sense of how 

the statute should operate. ... [The agency’s] need to rewrite [the statute] should have alerted [it] 

that it had taken a wrong interpretive turn.” Utility Air Reg. Group v. EPA, 573 U.S. 302, 325–28 

(2014); see also Christensen v. Harris County, 529 U.S. 576, 588 (2000) (an agency may not, 

“under the guise of interpreting a regulation ... create de facto a new regulation.”); see also Digital

Realty Trust, Inc. v. Somers, 138 S. Ct. 767, 782 (2018) (“[t]he statute’s unambiguous ... definition 

... precludes the [agency] from more expansively interpreting that term.”). Rather, “[o]nly the 

people’s elected representatives in Congress have the power to write new federal criminal laws.” 

United States v. Davis, 139 S. Ct. 2319, 2323 (2019). Nor are “[a]gencies ... free to ‘adopt . . . 

unreasonable interpretations of statutory provisions and then edit other statutory provisions to 

mitigate the unreasonableness.’” Utility Air Reg., 573 U.S. at 328 (citation omitted).

As discussed above, by the Final Rule Defendants attempt to promulgate new, agencycreated definitions for criminal behaviors based on new definitions purporting to reach unregulated 

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items, without the requisite statutory jurisdiction, authority, or statutory right to do so. Therefore, 

the Final Rule must be set aside under the APA. 

II. EVEN IF GCA DEFINITIONS WERE AMBIGUOUS—AND THEY ARE NOT—DEFENDANTS’

ARBITRARY AND CAPRICIOUS RULEMAKING WEIGHS AGAINST CHEVRON DEFERENCE 

When analyzing an agency’s interpretation of a statute, federal courts apply the two-step 

framework announced in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 

(1984). Smith v. Berryhill, 139 S. Ct. 1765, 1778 (2019). Under that framework, the court asks 

whether the statute is ambiguous and, if so, whether the agency’s interpretation is reasonable. Id. 

This approach “is premised on the theory that a statute’s ambiguity constitutes an implicit 

delegation from Congress to the agency to fill in the statutory gaps.” Id. (quoting FDA v. Brown 

& Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)). 

Even under Chevron’s deferential framework, agencies must operate “within the bounds 

of reasonable interpretation.” Utility Air Reg. Grp. v. EPA, 573 U.S. 302, 321 (2014) (quoting City 

of Arlington, Tex. v. F.C.C., 569 U.S. 290, 296 (2013)). And reasonable statutory interpretation 

must account for both “the specific context in which ... language is used” and “the broader context 

of the statute as a whole.” Id. (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). An 

agency interpretation that is “inconsisten[t] “with the design and structure of the statute as a whole” 

is not accorded deference. Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353 (2013). 

Further, agency rulemaking that is arbitrary and capricious or contrary to constitutional 

right under the APA renders the rule unqualified for Chevron deference. “Sw. Elec. Power Co. v. 

EPA, 920 F.3d 999, 1030 (5th Cir. 2019) (“Unexplained inconsistency in agency policy is a reason 

for holding an interpretation to be an arbitrary and capricious,” and “[a]n arbitrary and capricious 

regulation of this sort is itself unlawful and receives no Chevron deference.”) (quoting Encino 

Motorcars, LLC v. Navarro, 579 U.S. 211, 222 (2016)). “Although agency determinations within 

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the scope of delegated authority are entitled to deference, it is fundamental ‘that an agency may 

not bootstrap itself into an area in which it has no jurisdiction.’” Adams Fruit Co. v. Barrett, 494 

U.S. 638, 650 (1990) (quoting Fed. Maritime Comm’n v. Seatrain Lines, Inc., 411 U.S. 726, 745 

(1973)).

As shown above, the Final Rule falls far short of the APA’s procedural and substantive 

requirements, fails to acknowledge and/or adequately explain multiple internal contradictions 

numerous, ignores ATF’s own prior analysis of and positions on the relevant issues, and is the 

definition of an arbitrary and capricious rulemaking that is not entitled to Chevron deference and 

which must fall at summary judgment.

III. THE FINAL RULE VIOLATES THE CONSTITUTION

The procedural counts regarding the comment period and the nature of the hearing afforded 

by the rulemaking process would be moot if the Final Rule is rejected for other reasons or sent 

back as arbitrary and capricious. The vagueness component of the Due Process counts, however, 

largely overlaps with the deference issue. 

A. The Final Rule Is Unconstitutionally Vague in Violation of Due Process 

As discussed, supra at 14–15, numerous commentators highlighted the subjective nature 

of the Final Rule’s new definitions and expressed strong concern that the Final Rule’s vagueness

make it impossible for an ordinary citizen to know which or whether a given product or activity is 

subject to regulation and potential criminal penalties for violations. Final Rule at 24,677–79. 

When a criminal statute is challenged as vague, courts consider the challenge under the 

rubric of the Fifth Amendment’s due process clause. United States v. USPlabs, LLC, 338 F. Supp. 

3d 547, 570–71 (N.D. Tex. 2018) (citing Johnson v. United States, 576 U.S. 591, 595 (2015)). The 

government violates due process by taking away an individual’s “life, liberty, or property under a 

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criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or 

so standardless that it invites arbitrary enforcement.” Id. (quoting Johnson at 591). As the Supreme 

Court has held, “the prohibition of vagueness in criminal statutes...is ‘essential’ of due process, 

required by both ‘ordinary notions of fair play and the settled rules of law.’” Sessions v. Dimaya, 

138 S.Ct. 1204, 1212 (2018).

The Final Rule admits to its vagueness, but instead of providing an amended proposed rule 

that satisfies constitutional due process, the Agencies instruct members of the public to ask for 

ATF’s opinion “to the extent there is uncertainty about a particular item....” Final Rule at 24,679; 

see also id. at 24,672; 24,696 (“If persons remain unclear which specific portion of a weapon or 

device falls within the definitions of ‘frame’ or ‘receiver,’ then they may voluntarily submit a 

request to ATF....”). The Fifth Amendment, however, requires that the law be clearly written so 

that persons of ordinary intelligence can understand it, without being forced to seek dispensations 

or indulgences from bureaucrats.

10 USPlabs, LLC, at 570–71 (An ordinance is vague in all its 

applications where (1) “it subjects the exercise of [a] right ... to an unascertainable standard,” or 

(2) persons “of common intelligence must necessarily guess at its meaning.” (quoting Coates v. 

City of Cincinnati, 402 U.S. 611, 614 (1971) (citation omitted)).

10 Further, the vagueness of the Final Rule is consistent with the tactical ambiguity giving agencies 

increased enforcement flexibility—a particular concern that multiple Justices have raised. See

Elgin Nursing & Rehab. Ctr. v. U.S. Dep’t of Health & Hum. Servs., 718 F.3d 488, 493 n.6 (5th 

Cir. 2013) (citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 525 (1994) (Thomas, J., 

dissenting, joined by Stevens, O’Connor, and Ginsburg, JJ.) and noting that “[w]here courts defer 

completely to agency interpretations of their own regulations, ‘the incentive is to speak vaguely 

and broadly, so as to retain a ‘flexibility’ that will enable ‘clarification’ with retroactive effect.” 

(quoting Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 620 (2013) (Scalia, J., concurring in part 

and dissenting in part) and citing id. at 615 (Roberts, C.J., joined by Alito, J., concurring) 

(expressing agreement)).

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The statutory definition of “firearm” is pivotal in the criminal enforcement context and the 

consequences of the Final Rule’s ambiguity should be carefully considered. See, e.g., Staples v. 

United States, 511 U.S. 600, 609–10 (1994) (discussing whether mens rea element of criminal 

statute required that defendant “know of the particular characteristics that make his weapon a 

statutory firearm” and rejecting government’s contention that guns are “highly dangerous devices” 

and therefore gunowners “should be alert to the probability of regulation”).

The Final Rule fails to inform industry and individuals what concurrent purchases may 

result in a non-firearm becoming a regulated “firearm.” The Final Rule says only that a non-firearm 

item sold and/or purchased with a jig, or a tool, or instructions or some combination of these, if by 

the same company or a company conspiring with another company, may be a firearm; however, 

the Agencies fail to elaborate or provide specifics as to what other “templates, [] molds, equipment, 

tools, instructions, guides, or marketing materials,” or any of the myriad combinations thereof, 

may accompany the non-firearm item becomes a “firearm”. No amount of expertise or 

sophistication is sufficient to discern whether a given combination is a “firearm” because there is 

no limitations to what the Director “may consider” in determining whether the combination of 

items results in the existence of a regulated firearm. This provision is one of multiple provisions 

in the Final Rule that are beyond the ken of a person of ordinary intelligence to determine what 

conduct is regulated or prohibited and is therefore unconstitutionally vague.

B. The Final Rule Infringes on the Exercise of Second Amendment Rights

The Second Amendment protects “the right of the people to keep and bear Arms” and the 

Ninth Amendment recognizes that the people have inalienable rights not expressly enumerated in 

the Constitution. The Final Rule infringes on the rights of Plaintiffs to keep and bear arms, to 

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engage in lawful self-defense, to make their own firearms, to possess property lawfully acquired, 

and to earn a living by manufacturing and selling lawful goods in commerce. 

In the Final Rule, ATF reports that comments were received from “[a] majority of 

commenters opposed to the NPRM” to the effect that ATF’s “new requirements that undermine 

the Second Amendment are unconstitutional,” and that ‘the NPRM failed to include relevant 

Second Amendment analysis.” See Final Rule at 24,676; see also id at 24,677. In response, the 

Final Rule includes a “Second Amendment analysis” that was absent from the NPRM, but 

confidently asserts that “this final rule is consistent with the Supreme Court’s decision in District 

of Columbia v. Heller, 554 U.S. 570 (2008)” because “[t]here are compelling governmental 

interests in requiring privately made firearms to be marked and recorded whenever they are 

accepted into the business or collection inventories of licensees.” Id. at 24,676. The Agencies

further contended that ATF’s regulatory changes do not violate Second Amendment rights on the 

theory that “this rule serves the compelling governmental interest of preventing unserialized 

firearms from proliferating throughout the country, as recognized by [a Fourth Circuit] decision

... this rule ... imposes a minimal burden on the possession of firearms.” Id. at 24,677 (emphasis 

added); see also id. (relying on cases discussing whether a restriction “severely burden[s] Second 

Amendment-protected conduct” and is a “reasonable fit for achieving the City’s objectives of 

“public safety and crime prevention,” and upholding another restriction because “the ‘burden 

imposed by the law does not severely limit the possession of firearms.’”).

However, the Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. 

Bruen issued June 2022 invalidated the legal grounds on which the Final Rule’s Second 

Amendment analysis relies. 142 S. Ct. 2111 (2022). In its Bruen opinion, the Court “decline[d] to 

adopt that two-part approach” used in the lower federal courts and relied on by ATF in the Final 

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Rule, “decline[d] to engage in means-end scrutiny generally,” and “specifically ruled out the 

intermediate-scrutiny test....” Id. at 2117–18. In doing so, the Court made clear that the level of 

severity of a “burden” on Second Amendment rights is immaterial—any “burden” will do. Id. at 

2126 (finding step-two, which looks at “the severity of the law’s burden on that right,” to be “one 

step too many”). The Court similarly rejected the ubiquitous “public-safety” talisman waved by 

governments to justify Second Amendment infringements, reiterating that “[t]he right to keep and 

bear arms ... is not the only constitutional right that has controversial public safety implications.” 

Id. at 2126 n.3 (citation omitted). In light of Bruen’s express holdings that “public safety” is an 

insufficient justification for an infringement, and that even a “minimal burden” on protected rights 

is still an unconstitutional infringement, the Agencies rulemaking is marred by a fundamental 

defect.

Consequently, under Bruen, the Final Rule cannot satisfy its Constitutional burden by 

referencing the alleged “problem of untraceable firearms being acquired and used by violent 

criminals and terrorists,” and lamenting that the law as it currently exists makes it “more difficult 

for law enforcement to trace firearms, including PMFs.” Final Rule at 24,688–89; see also

Regulatory Impact Analysis at 27, 47 (justifying the Final Rule, even though “[w]hen PMFs are 

made for personal use, they are not required by the GCA to have a serial number,” but “because 

PMFs do not bear a serial number ... ATF has found it extremely difficult to complete [] traces on 

behalf of law enforcement.”).

Moreover, Bruen makes it clear ruled that “[w]hen the Second Amendment’s plain text 

covers an individual’s conduct, the Constitution presumptively protects that conduct,” and “[t]he 

government must then justify its regulation by demonstrating that it is consistent with the Nation’s 

historical tradition of firearm regulation.” 142 S. Ct. at 2126. There is no historical tradition or 

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founding era analogue for the regulation of firearm parts, or restrictions on the manufacture of 

homemade firearms. Rather, it is enough that Plaintiffs (members of “the people”) wish to 

manufacture firearms (protected “arms”) for lawful purposes (such as to “keep” and “bear”), their 

right to do so “shall not be infringed.”

Consequently, the Final Rule’s regulatory promulgations were justified on the basis of a 

legal theory that has been soundly rejected by the Supreme Court’s controlling Second 

Amendment jurisprudence and is therefore “contrary to constitutional right, power, privilege, or 

immunity.” 5 U.S.C. § 706(2)(B).

C. The Final Rule Chills Protected Speech in Violation of the First Amendment 

By adopting the Final Rule, ATF seeks to regulate protected speech in violation of the First 

Amendment. In determining when a partially complete frame or receiver reaches a stage where it 

is classified as a firearm, the Final Rule indicates that “the Director may consider any available 

instructions, guides, templates, jigs, equipment, tools, or marketing materials.” Final Rule at 

24,678. Instructions, guides, templates, marketing materials and other similar information all 

constitute speech, whether printed on a piece of paper included in a product box, or contained in a 

digital format. See IMS Health Inc. v. Sorrell, 630 F.3d 263, 271–72 (2d Cir. 2010) (“The First 

Amendment protects [e]ven dry information, devoid of advocacy, political relevance, or artistic 

expression” and “speech in a form that is sold for profit is entitled to First Amendment 

protection.”) (internal quotations omitted), aff’d, 564 U.S. 552, 566, 570 (2011) (noting “creation 

and dissemination of information are speech for First Amendment purposes”); see also Va. State 

Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761–70 (1976) (drug price 

information in advertisements is speech); Bernstein v. U.S. Dep’t of State, 922 F. Supp. 1426, 1435 

(N.D. Cal. 1996) (“Instructions, do-it-yourself manuals, recipes ... are also speech.”).

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Notably, not all information accompanying an unfinished frame or receiver transforms an 

unregulated item into a firearm pursuant to the Final Rule. Rather, some available speech 

accompanying an unfinished frame or receiver “may” be considered by the Director in determining 

that unfinished frame or receiver to be a firearm. Final Rule at 24,678. That ATF determines which 

speech affects the classification of an item constitutes a content-based restriction because it 

requires “enforcement authorities” to “examine the content of the message that is conveyed to 

determine whether” the speech should be restricted. FCC v. League of Women Voters of Cal., 468 

U.S. 364, 383 (1984).

As a result, the Final Rule forces BlackHawk and similarly situated businesses to regulate 

speech by deleting instructions from their websites in order to avoid the threat of criminal liability 

arising from the sale of some combination of non-firearm items that together may constitute a 

“firearm” that is subject to all the marking, registration and recordkeeping of an FFL. The 

possibility that two identical pieces of metal could be treated differently depending on whether 

they are associated with instructions, or where the instructions might be acquired from, chills First 

Amendment speech that guides lawful activity recognized by the Final Rule itself. Vizaline, L.L.C. 

v. Tracy, 949 F.3d 927, 928–29 (5th Cir. 2020) (“In overturning the ‘professional speech’ doctrine 

... the Court rejected any theory of the First Amendment that ‘gives the States unfettered power 

to reduce a group’s First Amendment rights by simply imposing a licensing requirement.’”) 

(quoting Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2375 (2018)).

These and other aspects of the Final Rule impermissibly regulate the speech of BlackHawk 

and are in direct violation of the First Amendment.

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D. The Final Rule Effectuates a Regulatory Taking of “Privately Made Firearms” 

Without Just Compensation

The Final Rule imposes onerous government regulations that effectuate the appropriation 

of personal property by the government without just compensation and therefore constitute a 

regulatory taking in violation of the Fifth Amendment. The Supreme Court has recognized that 

onerous government regulations can effectuate a regulatory taking. See Penn Cent. Transp. Co. v. 

City of New York, 438 U.S. 104, 124 (1978) (noting that the Court looks at the “economic impact 

of the regulation” and “the extent to which the regulation has interfered with distinct investmentbacked expectations”); see also Penn. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922) (“[I]f 

regulation goes too far it will be recognized as a taking.”). 

The Final Rule seeks to require licensees with “privately made firearms” in their 

inventories to either mark them according to the Final Rule’s specifications, destroy them, or 

“voluntarily” turn them over to a law enforcement agency. Final Rule at 24,679–80. The Final 

Rule places no restrictions on what the government may choose to do with “privately made 

firearms” that are “voluntarily” surrendered to the government. Consequently, the Final Rule’s 

regulations on “privately made firearms” effectuate a regulatory taking of personal property 

without just compensation, rendering such provisions a violation of the Fifth Amendment’s 

Takings Clause. See Horne v. Dep’t of Agriculture, 576 U.S. 351, 357 (2015).

IV. THE FINAL RULE IMPLICATES AND VIOLATES CORE CONSTITUTIONAL PRINCIPLES 

These counts need only be resolved if the court finds the statute ambiguous but nonetheless 

applies Chevron deference to uphold the Final Rule. Insofar as these same constitutional concerns 

inform the application of deference, the Court’s reasoning as to those questions in the interpretive 

context likely would resolve these counts as well. If Plaintiffs prevail on interpretive or other APA 

grounds, the cannon of constitutional avoidance would suggest that these counts need not be 

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decided. If Defendants prevail on the various other APA grounds, it would be necessary to resolve 

the constitutional counts as they relate to separation of powers and delegated authority regarding 

criminal law.

A. The Agencies’ Rulemaking Actions and Adoption of Final Rule Violate the 

Separation of Powers 

“Under our system of government, Congress makes laws and the President, acting at times 

through agencies like [ATF], ‘faithfully execute[s]’ them.” Utility Air Reg. Grp. v. EPA, 573 U.S. 

302, 327 (2014) (quoting U.S. CONST., Art. II, § 3). While the power to execute laws “necessarily 

includes both authority and responsibility to resolve some questions left open by Congress that 

arise during the law’s administration ... it does not include a power to revise clear statutory 

terms[,]” Id.; see, e.g., Barnhart v. Sigmon Coal Co., 534 U.S. 438, 462 (2002) (agency lacked 

authority “to develop new guidelines or to assign liability in a manner inconsistent with” an 

“unambiguous statute”). 

The Final Rule represents an attempt by an administrative agency to implement policy 

change and enact omnibus federal gun control legislation through bureaucratic regulation, rather 

than through legislation, and in so doing violates the Constitution.

B. The Final Rule Violates the Nondelegation Doctrine

Under Article I of the U.S. Constitution, “[a]ll legislative Powers herein granted shall be 

vested in a Congress of the United States.” U.S. CONST. Art. I, § 1. Yet, Congress can delegate 

some authority to the Executive Branch (or independent agencies) to engage in rulemaking without 

violating principles of non-delegation, even where such rulemaking may lead to criminal 

consequences. See Loving v. United States, 517 U.S. 748, 768 (1996) (documenting the Supreme 

Court’s history of “uphold[ing] delegations whereby the Executive or an independent agency 

defines by regulation what conduct will be criminal”).

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If this Court concludes that the Final Rule is authorized by statute, then the statutory 

scheme unconstitutionally delegates legislative power with no intelligible principle, violating the 

nondelegation doctrine. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); 

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). Further, various provisions of the Final Rule 

effectuate a double delegation by interpreting Congress’s delegation of authority to ATF as 

allowing for the promulgation of a rule that in turn delegates to the ATF Director unbounded 

discretion to create and unilaterally revise legislative standards.

C. The Final Rule’s Regulation on “Privately Made Firearms” Exceed the Limits 

of the Commerce Clause

To the extent the Final Rule seeks to impose regulations on intrastate activities with no 

interstate nexus, such requirements exceed Congress’s authority under the Commerce Clause. U.S.

CONST. Art. I, § 8, cl. 3.

V. VACATUR IS THE APPROPRIATE REMEDY

The APA gives courts the power to “hold unlawful and set aside agency action[s].” 5 

U.S.C. § 706(2). Vacatur is authorized by 5 U.S.C. § 706, which requires the Court to decide “all 

relevant questions of law [and] interpret constitutional and statutory provisions” and “hold 

unlawful and set aside” agency action “not in accordance with law,” “in excess of statutory 

jurisdiction,” or “short of statutory right.” Because “under our Constitution, the people’s elected 

representatives in Congress are the decisionmakers here—and they have not clearly granted the 

agency the authority it claims for itself,” the Final Rule is unlawful. West Virginia v. EPA, 142 S. 

Ct. 2587, 2626 (2022) (Gorsuch, J., concurring); Data Mktg. P’ship, LP v. United States Dep’t of 

Lab., 45 F.4th 846, 859 (5th Cir. 2022) (“the ordinary practice is to vacate unlawful agency 

action”).

“Vacatur [of an agency action] retroactively undoes or expunges a past [agency] action....

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Unlike an injunction, which merely blocks enforcement, vacatur unwinds the challenged agency 

action.” Data Mktg. P’ship, 45 F.4th at 859 (quoting Driftless Area Land Conservancy v. Valcq, 

16 F.4th 508, 522 (7th Cir. 2021)) (alterations and ellipsis in original). On occasion, a court—

though authorized by the APA to vacate an agency action—may exercise its discretion to remand 

the action for adjustments or another agency review. Brown v. U.S. Dep’t of Educ., No. 4:22-CV0908-P, ––– F.Supp.3d –––, 2022 WL 16858525, at *14 (N.D. Tex. Nov. 10, 2022) (citing Texas 

v. United States, 50 F.4th at 529). In deciding whether to sidestep complete vacatur, courts consider 

“(1) the seriousness of the deficiencies of the action, that is, how likely the agency will be able to 

justify its decision on remand; and (2) the disruptive consequences of the vacatur.” Id. If there is a 

small defect or deficiency that is quickly curable or an existing complex agency program that 

requires major winddown efforts, a court may remand without vacating the entire action. Id. (citing 

Lion Health Servs., Inc. v. Sebelius, 635 F.3d 693, 703 (5th Cir. 2011) (remanding to the agency 

to recalculate amounts owed in a manner consistent with the statute)).

Here, both factors weigh against remand. First, “the Agencies’ misstep is not correctible 

on remand—it is a complete usurpation of congressional authorization implicating the separation 

of powers required by the Constitution.” Brown, at *14. Second, the Final Rule does not require a 

significant administrative winddown period and will not demand significant agency resources in 

order to simply return to the statutory status quo as it existed prior to August 2022. Thus, vacatur 

of the Final Rule is the appropriate remedy.

Conclusion

In multiple ways the Final Rule violates the APA’s for lawful agency action, the plain text 

of the Gun Control Act, and the Constitution. BlackHawk and its co-Plaintiffs have met their 

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burden of proof and are entitled to summary judgment on the issues raised in their respective

Complaints and briefs, and vacatur of the Final Rule. 

Respectfully submitted, 

/s/ Brian D. Poe 

Brian D. Poe 

TX Bar No. 24056908 

BRIAN D. POE, ATTORNEY AT LAW PLLC

The Bryce Building 

909 Throckmorton Street 

Fort Worth, TX 76102 

Phone: (817) 870-2022 

Fax: (817) 977-6501 

bpoe@bpoelaw.com 

Michael J. Sullivan

Pro Hac Vice, MA Bar No. 487210

Nathan P. Brennan 

Pro Hac Vice, MN Bar No. 389954 

J. Christopher Amrhein, Jr. 

Pro Hac Vice, MA Bar No. 703170 

ASHCROFT LAW FIRM LLC

200 State Street, 7th Floor 

Boston, MA 02109 

Phone: (617) 573-9400 

Fax: (617) 933-7607 

msullivan@ashcroftlawfirm.com 

nbrennan@ashcroftlawfirm.com 

camrhein@ashcroftlawfirm.com

Counsel for Intervenor-Plaintiff BlackHawk 

Manufacturing Group Inc. d/b/a 80 Percent Arms 

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CERTIFICATE OF SERVICE

I certify that on December 23, 2022, the foregoing document was served, via the Court’s 

CM/ECF Document Filing System, upon the registered CM/ECF users in this action. 

/s/ Brian D. Poe 

Brian D. Poe 

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