It has been some time since my last article on this issue and I know many people have continued to watch for updates, both here and across the various forums that have been discussing this issue on an ongoing basis. Since that article published on January 10th, I have continued to be in contact with ATF attempting to gain clarity on this issue. At one point, I was informed that “ATF Legal” would be taking over contact with attorneys and my contact information was forwarded. I was later contacted by ATF Division Counsel in the Detroit Field Division and simply informed that they had setup a new email address (“ATFDETQuestions@atf.gov”) specifically for inquiries from the public and attorneys relating to the situation with Diversified Machine. I promptly sent several questions to that email address and got in line to wait for a reply. The important responses and information are below.
Although I specifically asked for a detailed list of what Diversified Machine products ATF contends are silencers, this is the answer that I received:
A “firearm silencer” is defined by the Gun Control Act and the National Firearms Act as “any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication.” See 18 U.S.C. § 921(a)(24) and 26 U.S.C. § 5845(a)(7). Any item that meets this definition is a silencer. Most notably a silencer part is itself a silencer and must be registered and transferred in accordance with the National Firearms Act. ATF considers the objective design features of the parts to determine whether those components are designed for use and commonly used in commercial silencers. Manufacturers of purported solvent traps may assert that these devices or parts are not “for” reducing the report of a portable firearm, but ATF is not bound by this stated intent. While ATF considers a manufacturer’s intent in classifying firearms, Federal courts have held that ATF may also consider an item’s design features — and thus the uses of which a part is capable — as part of the inquiry into whether a part is intended to be used only in assembling or fabricating a silencer.
When inquiring about Form 1 registrations, I was told:
In short, if an individual made a silencer from unregistered silencer parts the individual cannot continue to possess that silencer under the law. The National Firearms Act explicitly makes it unlawful “for any person to receive or possess a firearm transferred to him in violation” of the NFA or “to receive or possess a firearm made in violation” of the NFA. See 26 U.S.C. § 5861(b)(c). An ATF Form 1 does not alleviate the previous unlawful transfer or registration of the silencer or silencer parts. Any silencer or silencer part that was unlawfully registered will be removed from the NFRTR and the individual will receive a letter with further information.
When inquiring about those who no longer have Diversified Machine products, I was told:
Individuals who did not receive silencer/part(s) as defined by the GCA and NFA may disregard the letter… Individuals who do not possess silencer/part(s) as defined by the GCA and NFA may disregard the letter. Destruction of silencer/part(s) may be accomplished by crushing, shredding, or melting the parts, such that they no longer meet the legal definition of a silencer and cannot be reassembled into a silencer. Individuals who have transferred any silencer/part(s) contact their local ATF Field Division.
As it currently stands, ATF’s apparent position is that Form 1 silencers manufactured using “silencer parts” from Diversified Machine, are contraband and must be surrendered to a local field office. I have confirmed with some of our local field offices in Pennsylvania that this is ATF’s position as they are aware of it, and they are prepared to received these items. If you have something that needs to be surrendered to ATF, remember to do so under protest to preserve your interest in that item. Firearms Industry Consulting Group’s Chief Counsel, Joshua Prince, Esq., has previously written an article on how to do this and included a form letter for your use.
As I am sure you noticed, many of these responses from ATF are still non-committal in some regards. The cherry-on-top is that although the email was returned from the email address that Division Counsel had advised me was setup specifically for this purpose, it was not signed and no name was given as to who is actually sending the response. Further requests for information and clarification have gone unanswered.
If you would like to speak with an attorney regarding your specific circumstances or how you should proceed, contact us today.