Tag Archives: manufacturer

Trump to Alleviate ITAR Obligations for Firearm and Ammunition Manufacturers and Gunsmiths

As our readers are aware, for almost a decade, I have blogged about the obligation of firearm and ammunition manufacturers to register with the Department of State, Directorate of Defense Trade Control (DDTC) under the International Traffic in Arms Regulations (ITAR), which implement the Arms Export Control Act (AECA), as well as, DDTC’s stepped up enforcement against Federal Firearm Licensees (FFLs) starting in 2012. More recently, the DDTC issued guidance, which placed many gunsmiths out of business because it declared that most gunsmithing activities constituted manufacturing, which in turn required registration at a cost of $2,250, per year, in addition to the compliance costs. After years of requests that firearms and ammunition under Categories I, II and III of the U.S. Munitions List be moved over under the Department of Commerce, today the Department of State has published on its website proposed regulatory changes, which will afford a 45 day comment period, once formally published in the Federal Register. While the proposed changes are monumental, as described below, there are concerns regarding the proposed regulatory changes, which necessitate that those effected obtain competent counsel to timely file comments for DDTC’s consideration. DDTC.jpg

The 42 page proposal provides significant changes in that non-automatic and semi-automatic firearms and ammunition, as well as parts and defense services related thereto, that are currently regulated by Category I, II or III of the U.S. Munitions List will be moved over to the Export Administration Regulations (EAR), which are administered by the Department of Commerce and where there does not exist a registration requirement for the mere manufacture of controlled items, nor is there an annual fee (however, licensing requirements for exports will remain but under EAR). However, fully automatic firearms and ammunition for linked or beltfed firearms will remain under ITAR.

While the proposal is extremely beneficial for many FFLs and it is not surprising that fully automatic firearms are remaining under ITAR, for some unknown reason, silencers, all silencer parts and defense services related thereto, will will remain under ITAR (however, flash suppressors will be moved over under EAR). Additionally, magazine manufacturers that manufacture magazines that have a capacity in excess of 50 rounds must also continue to register under ITAR. This places a monumental burden on small and mid-sized silencer and magazine manufacturers, especially when one considers the compliance requirements and costs, beyond the yearly registration cost of $2,250.

If you or your company wants to file a comment requesting that DDTC consider moving silencers, large capacity magazines, or other items over under EAR, contact Firearms Industry Consulting Group (FICG) to discuss your options, as FICG has a number of attorneys with the necessary experience and understanding of the issues surrounding Administrative Law, the Gun Control Act, the National Firearms Act, and the Arms Export Control Act to ensure that any comment is properly and thorough prepared.

For those interested in some of the comments that FICG has drafted and filed on behalf of Industry Members and itself in opposition to rulemaking by ATF, see:

FICG Files Comment in Opposition to ATF – 41P – ATF’s proposed (and later enacted) rule to impose additional burdens on fictitious entity applications.

FICG Files Comment on behalf of David Goldman, Esq. of GunTrustLawyer.com in Opposition to ATF-41P

FICG Files Comment in Opposition to ATF 51P – ATF’s proposed rule to ATF’s to amend the definitions of “adjudicated as a mental defective” and “committed to a mental institution.”

FICG Files Comment in Opposition to ATF 29P on Behalf of Dead Air Armament – ATF’s advanced notice of proposed rulemaking regarding silencer engravings.

FICG Files Comment in Opposition to ATF’s Proposed Changes to the 4473 Form

 


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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ATF’s Shocking Position on “Makers” of Silencers/Suppressors, Especially in Relation to Solvent Traps

As many of our readers are aware, Attorney Adam Kraut and I attended the NSSF’s Import/Export Conference on August 2-3, 2016, for which we blogged about many of the statements made by ATF (and other federal agencies) in our blog – News from the Round Table Discussions at the NSSF Import/Export Conference. One issue that we did not discuss is ATF’s statements during the Round Table Discussions relating to ATF’s position on “makers” of silencers/suppressors, especially relative to what been called “solvent traps.”

For those who are unaware, there are a number of business offering “solvent traps,” which are designed to thread on the end of one’s barrel to capture the solvent, typically in an oil or fuel filter threaded on the end.

Oil Filter Suppressor 1Oil Filter Suppressor 2.jpg

While the use of these devices for purposes of collecting solvent is questionable, many of these companies advise their customers that if they want to be able to use the solvent trap as a silencer/suppressor, the customer must first file a Form 1 with ATF to make a silencer and receive approval, before utilizing the solvent trap for purposes of being a silencer. (While we would advise our clients to file a Form 1 and obtain approval of ATF prior to even purchasing a solvent trap or similar device, so to prevent against constructive possession charges, such is beyond the scope of this article).

Under the National Firearms Act (“NFA”), 26 U.S.C. 5801, et seq, one who wishes to “make” an NFA firearm must file an application with the Attorney General, pursuant to 26 U.S.C. 5822. (Although the statute still references the Secretary (of the Treasury), when ATF was moved under DOJ in 2003, it changed to the Attorney General). Under the NFA, pursuant to 26 U.S.C. 5845, “make” is defined as to “include manufacturing (other than by one qualified to engage in such business under this chapter [26 USCS §§ 5801 et seq.]), putting together, altering, any combination of these, or otherwise producing a firearm.”  While the NFA, pursuant to 26 U.S.C. 5841, does differentiate between a “maker” and a “manufacturer” in relation to how one is to initially register an NFA firearm  and does define “make” as mentioned previously, nothing in the NFA differentiates between the rights of a “maker” and those of a “manufacturer.”

Nevertheless, during a discussion on ATF-29p (ATF’s Advanced Notice of Proposed Rulemaking relating to Silencer/Suppressor engravings), ATF’s Mike Curtis and Earl Griffith with the Firearms and Ammunition Technology Division (“FATD”) stated that ATF views “makers” of silencers/suppressors differently than “manufacturers.” Specifically, the example of solvent traps was brought up, where they stated that ATF’s position is that a “maker” of a silencer cannot replace a silencer part without filing a new Form 1, paying another $200.00 and obtaining approval from ATF; whereas, a manufacturer, may lawfully replace a silencer part in a silencer it manufactured, provided that the part that is being replaced is destroyed. While there does not exist any specific statutory provision to support this contention, Mr. Curtis went on to explain that an individual who files a Form 1 to make a “solvent trap silencer” can only use the original oil/fuel filter that is installed and is barred from replacing a previously utilized oil/fuel filter with a new filter, absent a newly approved Form 1.

While Mr. Curtis did admit that to his knowledge ATF has not been asked to make a determination on a solvent trap silencer, he was explicitly clear that if a determination request was filed (or criminal charges brought against someone in such a situation), ATF would specifically find and contend that a “maker” of a silencer/suppressor may not repair/replace any part of the silencer/suppressor without first obtaining another approved Form 1.

Obviously, ATF’s position has a great impact on the Firearms Industry, as many individuals have made their own silencers/suppressors, long before the solvent trap silencers, and have been under the impression that like a manufacturer of a silencer/suppressor, they may lawfully replace a part in that silencer, provided that they destroy the part being replaced.

While Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., does not agree with ATF’s position, we believe it is extremely important to advise those who have Form 1’ed their own silencer/suppressor of ATF’s position, since non-compliance could result in federal charging.

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Filed under ATF, Firearms Law