Tag Archives: determination

Breaking News: ATF To Issue Two Monumental Determinations

Today, at the NSSF/FAIR Trade Group’s 16th Annual Firearms Import/Export Conference, during the roundtable discussions, the Firearms and Ammunition Technology Division (FATD) stated that it is working on two monumental determinations regarding modular silencers and vertical/angled foregrips.

First, in relation to vertical/angled foregrips, it was disclosed that FATD has received numerous requests for determination. These requests vary greatly in form and substance and resulted in Branch Chief Curtis stating that some form of determination would be issued to the Firearms Industry; hopefully in the coming weeks. He even mentioned that at this point, the degree of the angled foregrip would have to be addressed in the determination, after review of all past determinations, including ones issued by his predecessors and ones which may be in conflict.

Second, in relation to modular silencers, FATD acknowledged that it currently has pending before it a request for determination of legality from a modular silencer manufacture. Division Chief Griffith and Branch Chief Curtis raised concern over the determination request and the issues that must be addressed, including whether modular silencer are legal, when reduced in size. In essence, the concern stems from there arguably existing additional silencer parts that are not part of the modular silencer’s configuration, when it is reduced in length. In the event that ATF would rule that modular silencers are generally lawful, it raises a plethora of other issues, including where the markings must be placed (which is interrelated to ATF’s currently pending rulemaking: ATF-29P) or whether such silencers would require either specific location markings or multiple markings.

This means that if you are a silencer manufacturer, who manufactures modular silencers, there is still time to submit legal arguments to FATD as to the general legality of modular silencers. If you wish to submit legal arguments, contact Firearms Industry Consulting Group (FICG) today to discuss your options.

Although ATF was reluctant to state whether these determinations would be in the form of “policy determinations,” “guidance” or “formal rulings,”  and stated that it could not provide an exact timeframe for these determinations, it was stated that they are overdue and should be expected in the very near future.

Stay tuned for a blog article from Attorney Adam Kraut on other news and revelations from the 16th Annual Firearms Import/Export Conference!


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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Redesign or Redefine: An Open Response to ATF’s Unstable Determinations

If there was any question about whether ATF was paying attention to what individuals were using their SigTac SB15 Braces for, it has just been answered. ATF released an open letter to the industry today which hit my mailbox at 4:36 PM. The letter in its entirety can be found here.

Since the SigTac SB15 hit the market it has caused quite the controversy. As I alluded to in a previous blog post there was a segment of the population which contended it was a “loophole” or way to “cheat” the system from having to complete a Form 1 or Form 4 to make or transfer a short barreled rifle. It seems that ATF has taken that exact stance.

sigbrace

Whether, it was the influx of requests for clarification about the use of the device sent to the Firearms Industry Technology Services Branch (FITSB) or the abundance of YouTube videos, Facebook postings and Instagram photos, ATF has once again created another “shoe-string machine gun” type ruling. Let’s examine this new literary masterpiece entitled “OPEN LETTER ON THE REDESIGN OF ‘STABILIZING BRACES’” together. It’s worth noting that this response comes from the Firearms and Ammunition Technology Branch (FATD) instead of FITSB.

sigbracesbr

FATD begins the letter by explaining that “stabilizing braces” are described as a “shooter’s aid that is designed to improve the single-handed shooting performance of buffer tube equipped pistols.” The letter continues that the items are intended to improve accuracy by using the operator’s forearm to provide a stable support for the AR-type pistol. Attachment of such a brace DOES NOT alter the classification of the firearm OR subject the firearm to the National Firearms Act of 1934 (NFA). However, according to ATF, that classification is predicated on whether a user is actually using the device as it was designed. FATD then notes that “When the device is redesigned for use as a shoulder stock on a handgun with a rifled barrel under 16 inches in length, the firearm is properly classified as a firearm under NFA.” (Emphasis added).

The letter continues with the, what should now be familiar, definition of “firearm” under NFA.

“…(2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;

(3) a rifle having a barrel or barrels of less than 16 inches in length;”

And that a “rifle” and “shotgun” are defined as “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder…” (Emphasis by ATF).

FATD continues, “pursuant to the plain language of the statute, ATF and its predecessor agency have long held that a pistol with a barrel less than 16 inches in length and an attached should stock is a NFA ‘firearm’.” (Emphasis added). As evidence of this, the letter cites to Revenue Ruling 61-45 which determined that Luger and Mauser pistols having a barrel length of less than 16 inches in length and attached shoulder stocks classified them as short barreled rifles.

The letter goes on to explain that when ATF classified the originally submitted design, ATF considered the objective design as well as the stated purpose. ATF includes a quote that was submitted with the sample for FTISB to consider when classifying the design.

The intent of the buffer tube forearm brace is to facilitate one handed firing of the AR15 pistol for those with limited strength or mobility due to a handicap. It also performs the function of sufficiently padding the buffer tube in order to reduce bruising to the forearm while firing with one hand. Sliding and securing the brace onto ones forearm and latching the Velcro straps, distributes the weight of the weapon evenly and assures a snug fit. Therefore, it is no longer necessary to dangerously “muscle” this large pistol during the one handed aiming process, and recoil is dispersed significantly, resulting in more accurate shooting without compromising safety or comfort.

ATF’s response to the request for classification noted that “a shooter would insert his or her forearm into the device…” which pursuant to the information provided would mean the device was “…not designed or intended to fire a weapon from the shoulder.” FATD clarifies that in making the initial classification ATF determined that the objective design characteristics of the stabilizing brace supported the stated intent.

sb15firearmblog

Photo Credit: The Firearm Blog

FATD confirms that if the SigTac SB15 brace is used as designed (to assist shooters in stabilizing a handgun while shooting with a single hand) the device is not considered a shoulder stock. “ATF has received numerous inquiries regarding alternate uses for the device, including using it as a shoulder stock.” (Emphasis added). FATD then states that because NFA defines both rifle and shotgun to “include any ‘weapon designed or redesigned, made or remade, and intended to be fired from the shoulder,’ and person who redesigns a stabilizing brace for use as a shoulder stock makes a NFA firearm when attached to a pistol with a rifled barrel under 16 inches in length or a handgun with a smooth bore under 18 inches in length.”

The letter notes that the Gun Control Act of 1968 (GCA) does not define the term “redesign” and therefore ATF applies the common meaning. ATF utilizes Webster’s II New College Dictionary which defines “redesign” as “to alter the appearance or function of.” FATD continues that this is not a novel interpretation and gives some previous rulings related to destructive devices and any other weapons.

dictionary

FATD explains that the brace was neither designed nor approved to be used as a shoulder stock and that the use of the brace as a shoulder stock constitutes a redesign of the device because a possessor has changed the very function of the item. The letter concludes that “Any individual letters stating otherwise are contrary to the plain language of the NFA, misapply Federal Law, and are hereby revoked.”

I wonder how many dictionaries ATF poured through to cherry pick that definition out of.

http://www.merriam-webster.com/ defines “redesign” as “to change the design of (something)”.

Even if we utilize the definition that ATF so generously provided, how does misusing the SigTac SB15 brace by shouldering it alter the function of the device? It still functions exactly as it were designed. An individual could use a spoon in order to cut their food but it still retains its true function as a spoon.

ATF claims that it applies common meaning when using the term “redesign”. I don’t know of a single person who would think that “redesign” entails the misuse of an object. If anything, I would venture to say it would require the individual to modify an existing object. If I were to use a screw driver to pry open an object did I just redesign it? Is using a pencil to drum on the table redesigning it into a drum stick?

It appears that I’m not the only one perplexed by this definition. Aaron Cowan, the lead instructor from Sage Dynamics, posed this question to ATF in a letter he penned to them after reading this determination.

Will the ATF and/or FATD further define their definition of “designed” or “redesigned” as my understanding of both words means a physical alteration and/or creation of additional features that permanently change the physical nature, profile, weight or contour of a device. By placing a stabilizing brace against the shoulder portion of the body, no actual design or redesign has occurred, the brace simply is applied to a different part of the body.

Not to mention, where does this “redesign” that FATD contends happens occur? The inanimate object didn’t magically shapeshift. Using ATF’s logic, if I were to grab hold of my magazine on an AR-15 and use it to stabilize my gun I’ve now created a vertical foregrip…

Going back to the hypothetical I posed previously, if an individual builds an AR-type pistol using a SigTac SB-15 brace, uses it in the manner for which it were designed and then hands it to a friend who shoulders it, did the friend just “redesign” the brace? According to this letter they just did. So is the firearm no longer a pistol and now a SBR?

Let’s take a quick trip down memory lane to NFA’s definition of “make”.

Make.—The term “make”, and the various derivatives of such word, shall include manufacturing (other than by one qualified to engage in such a business under this chapter), putting together, altering, any combination of these, or otherwise producing a firearm.” 26 U.S.C. § 5845(i)

What isn’t defined is the term “design”. Since I don’t have a dictionary from 1934 handy to see what it might have meant then, I’ll refer to Merriam-Webster’s website again. They define the term “design” to mean “to plan and make (something) for a specific use or purpose. So if redesigning (using the definition from Merriam-Webster) means to change the design of something (which only logically would follow that it would require some alteration to the actual object), how does the misuse of an object constitute the redesign of it? It would only make sense that even though the object may be misused, it still retains all of the characteristics that made it suitable for it’s original specific use or purpose, at which point one can only conclude that nothing has changed.

In order for ATF’s skewed version of reality to work, it requires that the object being redesigned require no alteration whatsoever. It’s evident why ATF picked the definition of redesign it did. If altering the function of an object can be achieved by merely using it in a different manner then by that definition it was “redesigned”. Combined with the intent requirement from the definition of “rifle” the firearm has now become a rifle.

As with everything, the devil is in the details. Courts typically give great deference to administrative agencies but I’d be curious to see which dictionary a court would select if this were to be challenged in any capacity. What makes Webster’s II New College Dictionary the authority on the definition of “redesign”? As it turns out, probably nothing.

“I think that it’s probably wrong, in almost all situations, to use a dictionary in the courtroom,” said Jesse Sheidlower, the editor at large of the Oxford English Dictionary. “Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them.”

Mr. Shieldlower continued “It’s easy to stack the deck by finding a definition that does or does not highlight a nuance that you’re interested in.” Even the Supreme Court Justices themselves have utilized over 120 different dictionaries in defining terms which would be suggestive of “cherry picking”. Not to mention, some of the Justices interested in the original meaning utilize dictionaries from the time period to obtain their definitions. There is no question in my mind that ATF didn’t grab the first dictionary available and use it.

If you or anyone you know has an encounter with law enforcement regarding the legality of the use of a SigTac SB15 brace or were arrested and want legal representation, don’t hesitate to contact us at 1-800-313-0416.

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Ringing in the New Year ATF Style…

It figures that I’d be sitting at my computer browsing Facebook on New Years Eve and stumble across a post from Thordsen Customs, which stated that they received a determination letter from ATF regarding their custom buffer tube covers and CAA Saddles, which was posted 4 hours before midnight…Happy New Years Eve!

It seems that Thordsen requested some clarification to its design as it had been recently redesigned. The letter was submitted back at the beginning of October and the reply was from the 18th of December, which Thordsen states they received on the 23rd. In fact, Thordsen has published their thoughts on the letter along with the original response from ATF on their website after having taken the time to review it. You can view their thoughts here.

In the determination request letter, Thordsen asked ATF to examine three different samples. They asked if their buffer tube covers with the saddles allowed the AR pistol to retain its classification as a “pistol”, when utilizing their spacers to accommodate people of varying statures and whether the use of a receiver extension (buffer tube) with their cover and a side saddle, for the purpose of providing a stable cheek weld and safer handling, was permissible on a pistol variant that does not require a receiver extension to function.

Letter to ATF from Thordsen Customs

ATF’s Response to Thordsen Customs

Firearms Technology Industry Services Branch (FTISB) begins its response by defining the terms “handgun”, “pistol”, “rifle” and “firearm”. FTISB notes that their focus is to determine whether the items constitute a “firearm” as defined in the Gun Control Act of 1968 (GCA) or the National Firearms Act of 1934 (NFA).

The response notates that a shoulder stock provides a means to support a firearm and easily aim it.

Finding that the submitted samples were designed to enhance a “cheek weld” of an AR type shoulder stock or pistol buffer tube, FTISB correctly determines that none of the items submitted were “firearms” as defined by the GCA.

The letter continues on to state that “FTISB finds that the submitted saddle devices are not designed to support the AR-type pistol in the shoulder of the shooter during firing but, rather, to rest against the shooter’s cheek.” As such, FTISB correctly finds that the attachment of the saddle to an AR type pistol does not change the classification of a pistol to a SBR. FTISB notes “…as long as the saddle device as evaluated and installed to an AR-type pistol, is not designed or redesigned and intended to contact the shoulder and is not used as a shoulder stock, it’s possession and use would not be prohibited.” (Emphasis added).

Thordsen Customs Buffer Tube Cover with Saddle Photo Credit: Haus of Guns

Thordsen Customs Buffer Tube Cover with Saddle
Photo Credit: Haus of Guns

FTISB then explains that [t]he receiver extension/buffer tube on an AR-type pistol serves a legitimate, vital function in the operation of the weapon system; and if utilized as originally designed is not considered to be a shoulder stock. Further, a pistol that has an AR-type buffer tube or similar component assembled to it, which consequently allows for the installation of a saddle/cheek enhancement accessory, is not classified as a SBR; nor unlawful to possess.”

Here is the paragraph everyone is going to want to take a long hard look at. “However, if a pistol assembled with an AR-type buffer tube or similar component; which in turn, redesigns the subject AR-type pistol to be designed or redesigned and consequently intended to be fired from the shoulder; an NFA weapon as defined in 26 U.S.C. § 5845(a)(3); has been made.”

FTISB concludes that the information in the letter is only intended for use by the addressed individual or company with regard to a specific scenario described within the correspondence, which is newly included language not previous found in any FTISB/FTB determination response.

So what happened? Well, it appears very clear that FTISB and ATF as a whole are paying very close attention to what people are doing and how they are utilizing products, including reviewing internet postings, pictures and videos. All of the stabilization/cheek enhancement products on the market have a legitimate purpose and have assumedly been approved by FTISB at some point. But, it appears that some individuals are not looking to purchase these products for their legitimate purpose and use and instead intentionally intend to misuse them from the moment they are purchased.

As was noticeably absent in the letter discussed in my blog post Cinderella and ATF’s Determination: The Fairy Tale of an AR Pistol to SBR through Magic, this letter does mention intent, in fact several times. Let’s revisit the definition of rifle under the GCA and NFA.

A rifle as defined under the GCA is “…a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder…” A rifle as defined by NFA is “…a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder…” So we see that a rifle is the same in the pertinent part under the GCA and NFA.

But what about the term “firearm”? Under NFA a firearm is defined in the pertinent part as “…(3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length…”

taxstamp

So what’s going on? Well, it seems that ATF didn’t appreciate people purchasing various stabilization products/cheek weld enhancements for the purpose of avoiding the payment of the NFA tax (which could constitute tax evasion). This is why the intent aspect, as stated in the definition, is important. If an individual purchases one of these products intending to use it in the manner for which it was made and then misuses it, as ATF previously held in the Bradley letter, he/she has done nothing illegal. There is no law dictating the end use of a product. However, if an individual purchases one of these products to install on their pistol and intends to use it as a faux stock, he/she has very clearly created an illegal SBR.

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Whoops We (ATF) Did It Again…Arbitrary Determinations Over the Sig Brace

Formerly the Firearms Technology Branch (FTB) of the Bureau of Alcohol, Tobacco, Firearms and Explosives, now the Firearms Technology Industry Services Branch (FTISB), has brought us such hits as “a shoestring is a machinegun” (for which I wish Nike had sued ATF over) and “a silencer wipe isn’t a silencer part, then it was, until it wasn’t anymore.” But today marks a new era on hits from the FTISB given its November 10, 2014 determination that was just posted by an individual over Christmas, finding that the misuse of a company’s product (the Sig Brace) can transform a non-NFA firearm into an NFA firearm.

Firearm Industry Consulting Group (FICG) attorney Adam Kraut has been following the Sig brace determinations by ATF and originally wrote Black Aces Tactical, the SigTac SB15 arm brace and ATF’s misguided determination letter, wherein he cautioned on what seemed (and has now been verified) to be a change in position by the FTISB regarding the use (or more appropriately, improper use) of such a brace. Thereafter, based on an FTISB determination letter regarding the Blade AR Pistol Stabilizer, he wrote Abrakadabra from Pistol to Short Barreled Rifle and ATF’s Magical Nonsense. Most recently, after the posting of ATF’s Nov 10th determination, he posted his article Cinderalla and ATF’s Determination: The Fairy Tale of an AR Pistol to SBR through Magic, where he again reviewed the applicable law and drew into question ATF’s logic, as it clearly seems arbitrary and capricious.

But is it even more arbitrary and capricious? Let’s take a short trip down memory lane.

bradley letter

In March of 2014, Sergeant Bradley of the Greenwood Police Department requested a determination of whether “firing an AR-15 type pistol from the shoulder … would cause the pistol to be reclassified as a Short Barreled Rifle (SBR).” FTISB correctly responded “we have determined that firing a pistol from the shoulder would not cause the pistol to be reclassified as an SBR.” (emphasis in original). The determination letter goes on to declare, citing to FTB # 99146, that “firing of a weapon from a particular position, such as placing the receiver extension of an AR-15 pistol on the user’s shoulder, does not change the classification of the weapon.” This is the proper analysis of the law, as the definition for a rifle requires that it be “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder,” and the brace was not “intended” for purposes of shoulder firing. 18 U.S.C. § 921(a)(7); 26 U.S.C. § 5845(c).

In fact, in the Nov 10th determination, ATF specifically finds, “a Sig SB-15 shooting brace is not designed or intended for firing a weapon from the shoulder.” Whoopsie!

page 2

Since ATF readily (and correctly) acknowledges that the Sig SB15 was not designed or intended for purposes of shoulder firing, it cannot, contrary to its determination, constitute an SBR because of improper use. As Attorney Kraut correctly points out, by simply placing the Sig Brace (or other similar brace) to one’s shoulder does not result in the firearm being designed or redesigned or made or remade. While there may be an argument if the Sig Brace was modified in some way, such as adding a buttstock or cushioning pad to it, that it thereafter would fit the definition, it clearly cannot be an SBR absent any modifications, as ATF has already found that it was “not designed or intended for firing a weapon from the shoulder.”

More importantly, if ATF’s twisted logic is upheld, it would transform any handgun, for which someone uses two hands, into an AOW, because a handgun “is designed to be held and fired by the use of a single hand” and ATF has held that a handgun that is designed for requiring two hands is an AOW, in relation to vertical front grips.

It is also interesting to point out that both letters, where actually signed by the same individual at ATF. While the March 5, 2014 Bradley letter reflects the typed name of Earl Griffith, it is clearly not the signature of Earl Griffith and reflects that Max Kingery was signing on behalf of Early Griffith. When comparing the Nov 10, 2014 letter, which reflects the typed name of Max Kingery, to the Bradley letter, the signatures are identical.

So, the question is, on what legal and reasoned basis did Acting Chief Kingery go from finding that “we have determined that firing a pistol from the shoulder would not cause the pistol to be reclassified as an SBR” to “if this device, un-modified or modified, is assembled to a pistol and used as a should [sic] stock, in the designing or redesigning or making or remaking of a weapon designed to be fired from the shoulder, which incorporates a barrel length of less than 16 inches; this assemble [sic] would constitute the making of ‘a rifle having a barrel or barrels of less than 16 inches in length’; an NFA firearm as defined in 26 U.S., Section 5845(a)(3)”?

While an administrative agency, such as ATF, is permitted under the law to change positions in relation to a prior determination, under the Administrative Procedures Act, it must provide a reasoned explanation, which is noticeably absent, especially in light of ATF’s prior determinations, including that “placing the receiver extension of an AR-15 pistol on the user’s shoulder, does not change the classification of the weapon.”

Or, is it not as bad as it seems? If one reads the tortured text in the 6th paragraph of the second page of the Nov 10 letter, is it possible that ATF is attempting to limit the determination to a scenario where the person purchases a virgin receiver and forearm brace with the intent, at the time of building the firearm, to use the forearm brace to shoulder fire the firearm; thereby, resulting in a weapon being made and intended to be fired from the shoulder? This would be extremely difficult for ATF to prove in a court of law, if it would not be a violation for someone to purchase an AR-15 style pistol with the brace already affixed and misuse the firearm by shoulder firing it, since the firearm was never intended to be shoulder fired when made. If this is ATF’s position, it is EXTREMELY important to follow Rule # 1 – NEVER speak to law enforcement, as the Government would need to prove that you intended it to be shoulder fired when you made it. However, this argument overlooks the fact that the 6h paragraph of the letter never addresses the “intent” aspect, as required by the definition of a rifle. ATF conveniently glosses over this issue, maybe due to the fact that it already held that the Sig Brace was “not designed or intended for firing a weapon from the shoulder,” which further draws into question the status of the Sig Brace, as well as, other forearm braces.

As more comes to light regarding this recent determination, as well as any further determinations from ATF regarding forearm braces, we will keep you apprised. While there is some conjecture on the internet that the Nov 10th letter is a forgery, I have not seen anything to support this conclusion. If someone did forge the ATF’s letterhead and Acting Chief Kingery’s signature, the Industry response, although massive, will not be anything in comparison to the response brought by the Government through criminal charging. If you have any evidence to support that this is a forgery (as we all can only wish for) or if you are contacted by law enforcement regarding your alleged misuse of a forearm brace, please feel free to contact us – 888-313-0416 or email.

 

UPDATE: There was something bothering me about this determination and I couldn’t put my finger on it…then I remembered. It is the place that 99% of lawyers overlook, the definition section. Very few people take notice that the definition of a handgun includes as part of the definition a “short stock”. Section 921(a)(29) declares that the definition of a handgun is “(A) a firearm which has a short stock and is designed to be held and fired by the use of a single hand.” I am not sure if there has been any litigation or court decisions over what constitutes a “short stock” but it is something that needs to be investigated.

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