the construct of firearmsorchidadvisors.com/.../12/presentation...a-firearm.pdf · firearms,...

THE CONSTRUCT OF FIREARMS

John BrownPresident, NFATCAMay 3, 2016

© 2016 Name of Company. All Rights Reserved. Company disclaimer or statement of privacy.

Agenda

• When does a firearm meet ATF’s definition of a firearm?• When should I use ATF’s FATD?• Defining “What is a change in form?”• What’s the difference between Title II and Title III ?• Recent ATF rulings and firearm types• Suppressors, one part or every part?

THE CONSTRUCT OF FIREARMS

The Construct of Firearms

The Gun Control Act of 1968 defines under 921 (a) (3) “The term “firearm” means (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.

The first problem – This broad a definition allows for a lot of interpretation or in simple terms RISK

Examples: When does a .45 frame meet the definition?When does an MP5 flat meet the definition?When does an AK blank receiver meet the definition?When do those side plates at a gun show meet this definition?When does an AR lower meet that definition?When does a simple parts kit meet that definition?

When does a firearm meet the ATF’s definition of a firearm?


• In reality the good question is: When does a frame or a receiver meet the definition of a firearm?• If we go back to the 1968 definition pay careful attention to this part of the definition:

“which will or is designed to or may readily be converted to expel a projectile by the action of an explosive”

• This simple definition and the consequent answer is now handled by what most of us used to know as the Firearms Technology Branch now split off and know as the Firearms and Ammunition Technology Division (FATD).

• FATD, the division that handles all technical issues related to firearms, is where we want to focus our understanding. Their mission : To serve as ATF’s technical authority relating to firearms and their technical classification under Federal laws.

• Any issues related to definition of a firearm is handled by FATD.• Whether it is through criminal activity or requests for determination, FATD handles all requests for classification.• Those requests are generated by individuals, manufacturers, or other agencies, local or Federal, that want

determinations, based on Federal law.• Critical to understand: FATD makes all final determinations

Making determinations


The first point of confusion or question: What does an 80% receiver mean?

• On ATF’s web site an “80% receiver,” “80% finished,” “80% complete,” “unfinished receiver” are all terms referring to an item that some may believe has not yet reached a stage of manufacture that meets the definition of firearm frame or receiver found in the Gun Control Act of 1968 (GCA). These are not statutory terms or terms ATF employs or endorses.

• In reality most of know that there is no regulation that defines what an 80% receiver looks like. Consequently ATF and the industry must rely on the GCA .

• This single point of contention has caused more criminal investigations, and confusion in the industry than many other issues that have confronted the making of a firearm.

• Often hear about “The 80% rule”. There is not such an animal!• The safe route is to ask for a determination from FATD. This may take upwards of 6-8 months but better to be safe

than sorry.• There is a small, but burgeoning industry for people who want to start with partially machined parts. Components are

available for ARs, AKs, 1911s and even some SIGs. The standard for this is set at the 80% completion point.• Once the receiver passes the 80% completion point, it is considered a firearm. If it is to be sold/transfered to the public,

it must be taken past the 80% point only by a licensed, manufacturer and serialized upon completion. At, or before, the 80% completion point, selling or buying the partially completed lower is NOT considered buying a firearm and it is treated like buying a hunk of metal—no FFL required.

Where is the confusion on this process


• ATF, on their web site further stipulates: Receiver blanks that do not meet the definition of a "firearm" are not subject to regulation under the GCA. The ATF has long held that items such as receiver blanks, "castings" or "machined bodies" in which the fire-control cavity area is completely solid and un-machined have not reached the "stage of manufacture" which would result in the classification of a firearm per the GCA.

• The machine work must be done by the end-user—no contracting it out or having a friend do it. The finished firearm can not be transferred in ANY manner. No willing it to your kids. No giving it to a friend. If you no longer want the firearm, it MUST be destroyed.

• The simple matter is as follows:– There is no clear cut definition on 80%– If the frame or receiver remotely meets the definition of the GCA it will be classified as a firearm– Making a firearm outside of personal use is strictly prohibited, unless you are a licensed manufacturer– Having someone else help you with your project is likewise considered manufacturing consequently

requiring a manufacturers license

Where is the confusion on this process continued


• All guidance on the construction and the definitions of what constitutes a firearm is guided by the GCA of 1968• FATD enforcement and determinations are made using the GCA• Making your own determinations of 80% is risky and can subject you to criminal investigation• Play it safe and use FATD for guidance• Using internet as a source for your defense is not the best idea for taking an unnecessary risk

Conclusion


• The Firearms and Ammunition Technology Division (FATD) is responsible for technical determinations concerning types of firearms approved for importation into the United States and for rendering opinions regarding the classification of suspected illegal firearms and newly designed firearms.

FATD support to the firearms industry and the general public includes the following areas:• Responses to technical inquiries.• Testing and classification of products submitted.• Curios or Relics (C&R) determinations • Import evaluations.• Providing marking variances to the firearms industry

• Further FATDs serve as ATF's technical authority relating to firearms and their classification under Federal laws• Aside from serving all law enforcement divisions on regulatory statute interpretations, FATD serves as the pinnacle

for all facets of technical determinations relevant to firearms classification.

•

When should I use ATF’s Firearms, Ammunition and Technology Division?


• Working well beyond simple classification issues FATD is involved in many issues that most of us are familiar with or even hear about. They include:

• The arm brace for pistols (sometimes referred to as the Sig brace)• Acceptable applications of registered or post 86 sears ( e.g, the FNC sear, HK sear etc.)• Determinations on bump fire stocks (Slide Fire) or other items intended to give the end user the effect of select fire

(Atchison Kit)• Determinations on any other device used to give the end user the effect of select fire capability

• FATD has the mission to provide whatever technical level of assistance that ANYONE needs to comply with Federal statutes

• From clarification on any issues that you may have on firearms issues they can be contacted via:• Firearms and Ammunition Technology Division 244 Needy Road Martinsburg, Suite 1600 West Virginia 25405

USAE-mail address: [email protected](link sends e-mail) Voice: (304) 616-4300 Fax number: (304) 616-4301

• If you have issues that you would like to vet prior to contacting FATD there are many organizations that are willing to offer you the help to refine the questions or possibly get you the answers you need prior to contacting ATF.

When should I use ATF’s FATD? continued


• ATF Rul. 2006-2• The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has been asked by several members of the

firearms industry to classify devices that are exclusively designed to increase the rate of fire of a semiautomatic firearm. These devices, when attached to a firearm, result in the firearm discharging more than one shot with a single function of the trigger. ATF has been asked whether these devices fall within the definition of machinegun under the National Firearms Act (NFA) and Gun Control Act of 1968 (GCA). As explained herein, these devices, once activated by a single pull of the trigger, initiate an automatic firing cycle which continues until either the finger is released or the ammunition supply is exhausted.

• ATF Rul. 2008-1• The upper assembly of the Fabrique Nationale Herstal SA (FN) FNC rifle is classified as the receiver of the firearm

for purposes of the Gun Control Act, 18 U.S.C. Chapter 44, and the National Firearms Act, 26 U.S.C. Chapter 53.ATF has reconsidered its classification of the lower assembly of the FNC rifle as the receiver.

• ATF Rul. 2009-1 – Firearms Manufacturing Activities, Camouflaging or engravingAny person who engages in an activity or process that primarily adds to or changes a firearm's appearance, by camouflaging a firearm by painting, dipping, or applying tape, or by engraving the external surface of a firearm, does not need to be licensed as a manufacturer under the Gun Control Act. Any person who is licensed as a dealer/gunsmith, and who camouflages or engraves firearms as described in this ruling does not need to be licensed as a manufacturer under the Gun Control Act. Any person who is engaged in the business of camouflaging or engraving firearms as described in this ruling must be licensed as a dealer, which includes a gunsmith, under the Gun Control Act.

•

Recent ATF rulings and firearm types


• ATF rul. 2009 – 2 Installation of drop in replacement parts• Any person who installs “drop in” replacement parts in or on existing, fully assembled firearms does not

manufacture a firearm, and does not need to be licensed as a manufacturer under the Gun Control Act. A “drop in” replacement part is one that can be installed in or on an existing, fully assembled firearm without drilling, cutting, or machining.

• ATF Rul. 2009 – 5 Manufacturing Activities identificaion Markings of Firearms• ATF authorizes licensed manufacturers who perform a manufacturing process on firearms for, or on behalf of,

another licensed manufacturer not to place their serial numbers and other required identification markings on the firearms, provided such firearms already have been properly marked with a serial number and other identifying markings as required by 27 CFR 478.92(a) and 479.102(a) and that all of the other requirements stated in this ruling have been met.

• ATF Rul. 2010 – 1 Temporary Assignment of a firearm to an unlicensed employee• The temporary assignment of a firearm by an FFL to its unlicensed employees for bona fide business purposes,

where the actual custody of the firearm is transferred for a limited period of time, and where title and control of the firearm remain with the FFL, is not a transfer for purposes of the Gun Control Act, and, accordingly, the FFL need not contact NICS for a background check, record a bound book disposition entry, nor complete an ATF Form 4473.



• ATF Rul. 2010-10 - Manufacturing Operations Maybe Performed by Licensed Gunsmiths Under Certain Conditions

• Any person licensed as a dealer-gunsmith who repairs, modifies, embellishes, refurbishes, or installs parts in or on firearms (frames, receivers, or otherwise) for, or on behalf of a licensed importer or licensed manufacturer, is not required to be licensed as a manufacturer under the Gun Control Act, provided the firearms for which such services are rendered are: (1) not owned, in whole or in part, by the dealer-gunsmith; (2) returned by the dealer-gunsmith to the importer or manufacturer upon completion of the manufacturing processes, and not sold or distributed to any person outside the manufacturing process; and (3) already properly identified/marked by the importer or manufacturer in accordance with Federal law and regulations.

• ATF Rul. 2011-4 - Pistols Configured from Rifles; Rifles Configured from Pistols• This ruling was intended to clear up any misconceptions concerning constructive pocession and clear up any

further misunderstandings concerning pistol to rifle and rifle to pistol configuration.

• ATF Rul. 2012 – 1 Time period for making firearms manufactured• All firearms manufactured, to include firearm frames and receivers that are to be sold, shipped, or otherwise

disposed of separately, must be identified by a licensed manufacturer in the manner and with the markings required by 18 U.S.C. 923(i) and 27 CFR 478.92 during the manufacturing process. It is reasonable for a licensed manufacturer to have seven (7) days

•



• ATF Rul. 2013-3 - Adopting Identification of Firearms• The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) authorizes licensed manufacturers and licensed

importers of firearms, and makers of National Firearms Act (NFA) firearms, to adopt the serial number, caliber/gauge, and/or model already identified on a firearm without seeking a marking variance, provided all of the conditions in this ruling are met. Licensed manufacturers seeking to adopt all of the required markings, including the original manufacturer’s name and place of origin, must receive an approved variance from ATF. ATF Ruling 75-28 is superseded, and ATF Industry Circular 77-20 is clarified.

• ATF Rul. 2014-1 - Manufacturing/Inventory of Machineguns for LE and Military• A manufacturer licensed and qualified under the Gun Control Act (GCA) and National Firearms Act (NFA) may

manufacture and maintain an inventory of machineguns for future sale to Federal, State, or local government agencies without a specific government contract or official request; provided, the machineguns are properly registered, and their subsequent transfer is conditioned

• ATF Rul.2015-1 - Manufacturing and Gunsmithing• Any person (including any corporation or other legal entity) engaged in the business of performing machining,

molding, casting, forging, printing (additive manufacturing) or other manufacturing process to create a firearm frame or receiver, or to make a frame or receiver suitable for use as part of a "weapon must be licensed as a manufacturer under the Gun Control Act.

•

•



• Open Letters form ATF have been around for twenty years. Many letters attempt to provide wide knowledge on issues that are asked about in correspondence repeatedly. These open letters deal with small issues concerning use of a new updated 4473 to much larger issues that don’t necessarily demand new regulations but clarification on issues.

• During the last twelve years ATF has repeatedly addressed more and more issue at the State level to make certain that locally imposed regulation dove tail with Federal Statures..

• These open letters and Rulings can be reviewed on the ATF website. Interested parties can actually sign up for new updates or notifications on new ATF news.



• Assuming that you are not making a firearm for your own personal use, and that you are manufacturing firearms with a manufacturing license, the most significant “Next Step” for a manufacturer was addressed in January 2012 by Acting Director B. Todd Jones.

• This ruling addressed probably the most significant issue for manufacturing timing, from the completion of a firearm to making appropriate entries in your bound book

• That ruling by ATF is known as 2012-1

• The ruling starts with defining what manufacturers do with frames or receivers. It states:

• “Some licensed firearms manufacturers produce and assemble complete firearms within their licensed business premises. Others manufacture only frames or receivers that are not parts of complete weapons when transferred to other licensees for further manufacturing. In some instances, a manufacturer may possess firearm frames or receivers for an extended period of time without selling, shipping, or otherwise disposing of them. Such manufacturers may intend to sell these components as frames or receivers without further manufacturing, or intend to manufacture complete weapons from them in the future.”

Defining “What is a change in form?”(What is required when you manufacture, change the form, of a frame or

receiver into a firearm)


• In this ruling ATF further states, “Congress did not specify in section 923(i) a time period for a manufacturer to mark firearms manufactured. However, it is unlikely Congress intended to allow manufacturers to stockpile completed firearms (including finished frames or receivers of such firearms to be sold or shipped separately) without markings for an indefinite period of time. The plain language in section 923(i) requiring that the serial number be “engraved or cast on” the receiver or frame of the firearm demonstrates Congressional intent to require marking as an integral part of the manufacturing process. Otherwise, fully assembled firearms, or finished frames and receivers to be sold, shipped, or disposed of separately – stockpiled indefinitely without required markings –would be susceptible to theft or loss without any means to trace them.

• Under the regulations, section 478.92, firearms required to be marked at the time of manufacture include both “complete weapons,” and complete frames or receivers of such weapons that are to be sold, shipped, or otherwise disposed of separately. Because identifying firearms is an integral part of the manufacturing process, and sections 923(i) and 478.92 do not specify a time period in which to identify firearms, licensed manufacturers are required to mark them during the manufacturing process. Reading the marking requirement for complete weapons in section 478.92(a) together with the seven day recordkeeping requirement for complete firearms in section 478.123(a)

Defining “What is a change in form?” continued


• ATF concludes that it is reasonable for a manufacturer to have seven (7) days following the date of completion (to include a firearm in knockdown condition, i.e., complete as to all component parts, or a frame or receiver to be sold, shipped, or disposed of separately) in which to mark the firearm and record its identifying information in the manufacturer’s permanent records. Further, because firearm frames and receivers to be sold, shipped, or disposed of separately do not have a barrel at the time they are marked, pursuant to 478.92(a)(2), all of the information required by 478.92(a)(1) must be placed on the frame or receiver, unless an alternate means of identification is approved (i.e., a “non-marking variance”) under section 478.92(a)(4). The model designation and the caliber or gauge may be omitted without a variance if that information is unknown at the time the firearm frames or receivers are marked.

• ATF recognizes that a manufacturer may require more than seven days to finish the manufacturing process from beginning to end with the required markings, depending on the nature of the process involved. Some firearms may take more time due to differences in the type and capability of the firearm, availability of materials and components, and complexity of the assembly and finishing processes. ATF also recognizes that the equipment necessary to identify the firearms must be available and in working order. However, once the entire manufacturing process has ended, manufacturers must ensure that the firearms have been marked in the manner required by section 478.92.

Defining “What is a change in form?” continued


How this entire ruling impacts a typical inspection?

• To facilitate inspection and ensure that ATF can determine that a licensed manufacturer has not unreasonably held completed firearms (to include finished frames and receivers to be sold, shipped, or disposed of separately) after seven (7) days from the date of completion without their required markings, licensees may take the following steps:

• (1) maintain a copy of the current, active license of all contracted licensees; • (2) maintain records of firearms production;• (3) maintain work orders, contracts, and related instructions for services rendered that describe the various

firearm manufacturing processes; • (4) maintain orders for firearm parts that have yet to be received; and (5) maintain invoices to repair non-

functioning machines.

Defining “What is a change in form?”


• Firearms manufactured, to include firearm frames and receivers that are to be sold, shipped, or otherwise disposed of separately, must be identified by a licensed manufacturer in the manner and with the markings required by 18 U.S.C. 923(i) and 27 CFR 478.92 during the manufacturing process.

• It is reasonable for a licensed manufacturer to have seven (7) days following the date of completion (to include a firearm in knockdown condition, i.e., complete as to all component parts, or a frame or receiver to be sold, shipped, or disposed of separately) in which to mark a firearm manufactured, and record its identifying information in the manufacturer’s permanent records.

• A firearm frame or receiver that is not a component part of a complete weapon at the time it is sold, shipped, or otherwise disposed of must be marked with all of the required markings; provided, that an alternate means of identification may be approved (i.e., a “non-marking variance”) under section 478.92(a)(4); provided further, that the model designation and caliber or gauge may be omitted without a variance if that information is unknown at the time the frames or receivers are marked.

Defining “What is a change in form?”

Summary


• The loose use of terminology here has caused many misconceptions

• The first thing we need to understand that using the term “Title III” is a misnomer. Title II refers correctly to what most of us know as Class III weapons that are controlled by Federal law. This class of firearm is governed by the NFA.

• The National Firearms Act (NFA), enacted on June 26, 1934, currently, imposes a statutory excise tax on the manufacture and transfer of certain firearms and mandates the registration of those firearms. The Act was passed shortly after the repeal of prohibition. The NFA is also referred to as Title II of the Federal firearms laws. The Gun Control of 1968 ("GCA") is Title I.

• Title II weapons, or NFA firearms are designations of weapons in the United States of America, under that country's National Firearms Act. These weapons requiring a Type 1 Federal Firearms License as well as a Class III Special Occupation Tax to sell (Dealer).

• Individuals purchasing NFA weapons are required to procure an ATF Form 4 with $200 tax stamp to purchase.

• In most states the purchase of an NFA weapon also requires state registration.

• The most common misconception among individuals that want to purchase and NFA item is that they need a Class III license.

What’s the difference between Title II and Title III ?


• Categories of Title II weapons are as follows:

• Machine Guns - Defined by the NFA as "Any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot without manual reloading, by a single function of the trigger." ATF has also expanded this definition to include any frame, or receiver of a machine gun, and/or any combination of parts intended to make a machine gun.

• Short Barreled Shotgun (SBS) - defined as a shotgun having a barrel of less than 18 inches, or a firearm made from a shotgun where the resultant weapon has a total length less than 26 inches.

• Short Barreled Rifle (SBR) - A short barreled rifle is defined as a rifle having a barrel of less than 16 inches, or a weapon made from a rifle where the final result has a total length less than 26 inches.

• Any Other Weapon (AOW) – Weapons or devices that can be concealed on a person and are capable of firing a projectile with the energy of explosion. Also included are pistols and revolvers with a smooth bore that have re-designed to fire a shotgun shell. Many firearms that don’t “normally fit” categories under the NFA fall into this category, e.g., cane guns, knife guns, and newer made shotguns that have been manufactured from the factory with a pistol grip.

• Silencers – Defined as any device for silencing, muffling, or diminishing the report of a portable firearm. The definition also includes any combination of parts, designed or re-designed, and intended for use in assembling or fabrication firearm silencer or firearm muffler.

• Destructive Devices – Defined more specifically to address vairous types of munitions. These items are described under regulations and the material used to build. Two examples are: Explosive devices and large caliber weapons, generally over .50 caliber

•

•

What’s the difference between Title II and Class III ?


• Since Ronald Reagan signed into law the Firearms Owners Protection Act on May 19, 1986 NFA weapons, made prior to this date, have become highly collectible and prices continue to rise.

• This single act, unlike the manufacture of other NFA items, banned the sale of Machine Guns to civilians that were made after this date.

• Today in the United States there are 175, 865 (NFATCA FOIA 2016) machine guns that were made before that date, that are registered with ATF and suitable for sale or transfer.

• Hence the reason why the military may pay upwards of $1000.00 for an M4 but that same machine gun, made before May 19, 1986 recently sold for $31,000.00. The law of supply and demand rules.

• Not as true with silencers or most other NFA categories where manufacturing continues today.

The Financial Aspect of the NFA world


• The term “Firearm Silencer” or “Firearm Muffler” means any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for the use in assembling or fabricating a firearm silencer or firearm muffler, any part intended only for use in such assembly or fabrication.

Suppressors, one part or every part?


Almost 800,000 silencers are registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”) as of 2015.It is lawful to possess noise suppressors in 41states, and to use them for hunting in 37 states

Suppressors


• Firearms are usually defined as a weapon by which a projectile isdischarged by gunpowder. Originally, silencers, now appropriately calledsuppressors are also considered "firearms" in the United States. They areregulated pursuant to the 1934 National Firearms Act (NFA). In order toacquire a suppressor, a purchaser must complete the appropriate NFApaperwork, undergo a background check, find a licensed dealer authorizedto conduct the transaction and pay a one-time $200 tax for each device.

Suppressors, one part or every part, continued


18 U.S.C., § 921(A)(24)The term “Firearm Silencer” or “Firearm Muffler” means any devicefor silencing, muffling, or diminishing the report of a portable firearm,including any combination of parts, designed or redesigned, andintended for the use in assembling or fabricating a firearm silencer orfirearm muffler, any part intended only for use in such assembly orfabrication.



• ATF in a Q&A position paper, in 2008 answered several question about suppressors repairs and markings stated:

• Q1: What part of a silencer must be marked?

A: The silencer must be marked in accordance with 27 C.F.R. §§ 478.92 and 479.102. The regulations require that the markings be conspicuous and legible, meaning that the markings may be placed on any external part, such as the outer tube or end cap.

ATF strongly recommends that manufacturers place all required markings on the outer tube of the silencer, as this is the accepted industry standard. Moreover, this practice eliminates the need to remark in the event an end cap bearing the markings is damaged and requires replacement.

• A constant question that is always on the mind of the suppressor crowd is “Are all parts of a suppressor



• The term “Firearm Silencer” or “Firearm Muffler” means any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for the use in assembling or fabricating a firearm silencer or firearm muffler, any part intended only for use in such assembly or fabrication.

Interpretation of Suppressor Law

Questions & Comments

Questions/Comments

We made it!

Thank you for attending!

For more information on this topic, visit (WWW.NFATCA.ORG)

the construct of firearmsorchidadvisors.com/.../12/presentation...a-firearm.pdf · firearms,...

Documents