Firearms

Manual / Guide · 2009

ATF National Firearms Act Handbook (E-Publication 5320.8, 2009)

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ATF's handbook to the National Firearms Act (revised April 2009): definitions, registration and transfer, DEWATs, amnesty periods, importation and the rulings in Appendix B. Several machine-gun and SMG dives quote it for what a private owner may and may not hold, and why an unregistered war trophy cannot now be registered.

Author
Bureau of Alcohol, Tobacco, Firearms and Explosives
Year
2009
Type
Manual / Guide
Credit
Bureau of Alcohol, Tobacco, Firearms and Explosives (US government work). Copy hosted by the US Court of Appeals for the First Circuit.
  • NFA
  • national firearms act
  • machine guns
  • DEWAT
  • registration
  • amnesty
  • curios and relics
  • ATF rulings

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ATF National Firearms Act Handbook (E-Publication 5320.8, 2009)

6 20 1 /2 1/ 06 on y ra r ib tL ui irc C rs t Fi by ew ed Vi st La ATF E-Publication 5320.8 Revised: April 2009 PREFACE 20 1 6 This handbook is primarily for the use of persons in the business of importing, manufacturing, and dealing in firearms defined by the National Firearms Act (NFA) or persons intending to go into an NFA firearms business. It should also be helpful to collectors of NFA firearms and other persons having questions about the application of the NFA. /2 1/ This publication is not a law book. Rather, it is intended as a “user friendly” reference book enabling the user to quickly find answers to questions concerning the NFA. Nevertheless, it should also be useful to attorneys seeking basic information about the NFA and how the law has been interpreted by ATF. The book’s Table of Contents will be helpful to the user in locating needed information. on 06 Although the principal focus of the handbook is the NFA, the book necessarily covers provisions of the Gun Control Act of 1968 and the Arms Export Control Act impacting NFA firearms businesses and collectors. La st Vi ew ed by Fi rs t C irc ui tL ib ra r y The book is the product of a joint effort between ATF and the National Firearms Act Trade and Collectors Association. ATF takes this opportunity to express its appreciation to the Association for its assistance in writing and making this publication possible. i TABLE OF CONTENTS by Fi rs t C irc ui tL ib ra r y on 06 /2 1/ 20 1 History of the National Firearms Act (NFA) …………………………….……………….1 The NFA of 1934 Title II of the Gun Control Act of 1968 Firearm Owners’ Protection Act Meaning of terms ................................................................................................................2 “AECA” “ATF” “ATF Ruling” “CFR” “DIO” “FFL” “FTB” “GCA” “NFA” “NFRTR” “SOT” “U.S.C.” Administration and enforcement of Federal firearms laws ...............................................3 What are regulations and rulings? .....................................................................................3 Regulations Rulings Other ATF publications .....................................................................................................3 ATF’s internet website ATF P 5300.4 ATF points of contact …………………………………………………...……………….4 ATF Forms ……………………………………………………………..……….………..4 ew ed Sec. 1.1 1.1.1 1.1.2 1.1.3 Sec. 1.2 1.2.1 1.2.2 1.2.3 1.2.4 1.2.5 1.2.6 1.2.7 1.2.8 1.2.9 1.2.10 1.2.11 1.2.12 Sec. 1.3 Sec. 1.4 1.4.1 1.4.2 Sec. 1.5 1.5.1 1.5.2 Sec. 1.6 Sec. 1.7 6 CHAPTER 1. INTRODUCTION CHAPTER 2. WHAT ARE “FIREARMS” UNDER THE NFA? Types of NFA Firearms ....................................................................................................5 Shotgun Weapon made from a shotgun Rifle Weapon made from a rifle Any other weapon Machinegun Silencer Destructive device Explosive devices Large caliber weapons La st Vi Sec. 2.1 2.1.1 2.1.2 2.1.3 2.1.4 2.1.5 2.1.6 2.1.7 2.1.8 2.1.8.1 2.1.8.2 ii Unserviceable firearm Antique firearm .................................................................................................................21 Curios or relics ..................................................................................................................21 Applications to remove firearms from the scope of the NFA as collector’s items ..................................................................................................................................22 Removal of firearms from the scope of the NFA by modification/elimination of components ……...............................................................................................................23 Removal of machineguns and silencers from the scope of the NFA Sec. 2.5 /2 1/ 2.5.1 20 1 6 2.1.9 Sec. 2.2 Sec. 2.3 Sec. 2.4 by Fi rs t C irc ui tL ib ra r y on The National Firearm Registration and Transfer Record (NFRTR) ................................24 Who may register NFA firearms ......................................................................................24 Amnesty registration Registration by State and local agencies Registration by makers Registration by importers Registration by manufacturers Registration to transferees Transfers by persons other than FFLs/SOTs to other such persons Transfers by FFLs/SOTs to persons other than FFLs/SOTs Transfers by non-FFLs/SOTs to FFLs/SOTs Transfers by FFLs/SOTs to other FFLs/SOTs Transfers to State and local government agencies Status of unregistered firearms ........................................................................................26 ATF disclosure of NFA registration information ............................................................26 Restrictive use of information Prohibition on ATF’s disclosure of tax returns or tax return information Determining the registration status of an NFA firearm Lost or stolen registration documents ..............................................................................27 Correcting incorrect registration documents ...................................................................27 Maintaining registration documents ................................................................................27 ew ed Sec. 3.1 Sec. 3.2 3.2.1 3.2.2 3.2.3 3.2.4 3.2.5 3.2.6 3.2.6.1 3.2.6.2 3.2.6.3 3.2.6.4 3.2.6.5 Sec. 3.3 Sec. 3.4 3.4.1 3.4.2 3.4.3 Sec. 3.5 Sec. 3.6 Sec. 3.7 . 06 CHAPTER 3. REGISTRATION OF NFA FIREARMS CHAPTER 4. TAXES IMPOSED BY THE NFA La st Vi Sec. 4.1 Taxes .........................................................................................................................................28 4.1.1 Making tax 4.1.2 Transfer tax 4.1.3 Special (occupational) tax Sec. 4.2 Exemptions from tax .......................................................................................................29 4.2.1 Making tax 4.2.2 Transfer tax 4.2.2.1 Unserviceable firearms 4.2.3 Special (occupational) tax 4.2.4 Exportation of firearms iii CHAPTER 5. QUALIFYING TO DO BUSINESS IN NFA FIREARMS La st 6 20 1 /2 1/ 06 on y ra r ib tL ui irc C Vi ew ed 5.2.1.1 5.2.2 5.2.3 5.2.3.1 5.2.3.2 5.2.4 5.2.4.1 5.2.4.2 5.2.5 5.2.6 rs t 5.1.8 5.1.8.1 Sec. 5.2 5.2.1 Fi 5.1.3.9 5.1.4 5.1.4.1 5.1.5 5.1.6 5.1.7 Licensing under the GCA ................................................................................................30 Application for GCA license Definition of “person” for GCA purposes License fees Manufacturers Importers Dealers Licensing standards under the GCA Age Prohibited persons “Responsible persons” Removing disabilities Prior willful violations False statements Business premises May a license be obtained to do business solely away from the licensed premises at gun shows? Gun storage and safety devices Multiple business locations Locations solely for storage Establishing a common expiration date for licenses at multiple locations Engaging in business as both an importer and a manufacturer Do importers and manufacturers need a dealer’s license to deal in the firearms they import or manufacture? License renewal Right to operate while renewal application is pending; “letters of continuing operation” Payment of special (occupational) tax to do business in NFA firearms ………...............33 Every “person” who engages in the business of importing, manufacturing, or dealing in firearms (including pawnbrokers) shall pay a special tax Definition of “person” for NFA purposes Tax must be paid for each business location Rate of Tax Importers and manufacturers Dealers How to pay special tax Employer identification number (EIN) Renewal of special tax Exemption from special tax Collectors acquiring NFA firearms for their personal collections by acquiring dealers’ licenses and paying NFA special tax Registration by firearms manufacturers and exporters with the U.S. Department of State (DOS) ………...................................................................................................................34 How manufacturers should register Registration by firearms importers with ATF ..................................................................35 by Sec. 5.1 5.1.1 5.1.1.1 5.1.2 5.1.2.1 5.1.2.2 5.1.2.3 5.1.3 5.1.3.1 5.1.3.2 5.1.3.3 5.1.3.4 5.1.3.5 5.1.3.6 5.1.3.7 5.1.3.8 Sec. 5.3 5.3.1 Sec. 5.4 iv 5.4.1 Sec. 5.5 How importers should register Filing by facsimile transmission .......................................................................................35 CHAPTER 6. MAKING NFA FIREARMS BY NONLICENSEES 6 20 1 /2 1/ 06 on y ra r tL Sec. 6.3 6.3.1 Sec. 6.4 Sec. 6.5 Sec. 6.6 Sec. 6.7 Sec. 6.8 Requirements for making NFA firearms ………………………………………………..36 Preparation of Form 1 ...…………………………………………………………………36 Description of firearm Photograph of applicant FBI Form FD-258, fingerprint card Law enforcement certification What if the proposed maker is unable to find any official in his or her jurisdiction willing to sign the law enforcement certification? Submission of Form 1 ………………………………………………………………..…37 State permit or license for possession of an NFA weapon Approval of Form 1 …………………………………………………………………..…38 Disapproval of Form 1 ………………………………………………………………..…38 Reactivation of a registered unserviceable NFA firearm ………………….…………….38 Incorrect description of Firearm ………………………………………………………...38 Withdrawal or Cancellation of an ATF Form 1 and Refund if Making Tax …………....39 ib Sec. 6.1 Sec. 6.2 6.2.1 6.2.2 6.2.3 6.2.4 6.2.4.1 La st irc C rs t Fi Vi ew ed 7.1.1.4 7.1.2 7.1.3 7.1.3.1 Sec. 7.2 7.2.1 7.2.2 7.2.3 7.2.4 7.2.4.1 Sec. 7.3 7.3.1 7.3.2 7.3.2.1 7.3.3 Qualifying to manufacture NFA firearms ........................................................................40 Licensing under the GCA Engaging in business at multiple locations Engaging in business as both an importer and a manufacturer Do importers and manufacturers need a dealer’s license to deal in the firearms they import or manufacture? Manufacturers of destructive devices Payment of special (occupational) tax to do business in NFA firearms Registration by firearms manufacturers with the U.S. Department of State Registration exemption for fabricating articles for “research and development.” What is a “manufacturer”?; What is “manufacturing”? ..................................................41 “Manufacturer” “Manufacturing” What is the difference between manufacturing and gunsmithing? Do you know how ATF would classify your product? ATF classification letters Registering the manufacture of NFA firearms ..................................................................43 Preparation of ATF Forms 2 Filing ATF Forms 2 Existing firearms modified into NFA firearms or reactivated Reactivation of a registered unserviceable NFA firearm by Sec. 7.1 7.1.1 7.1.1.1 7.1.1.2 7.1.1.3 ui CHAPTER 7. MANUFACTURING NFA FIREARMS v 6 20 1 /2 1/ 06 on y ra r ib tL rs t Sec. 7.6 7.6.1 7.6.2 Sec. 7.7 Sec. 7.8 ui 7.5.2 7.5.3 7.5.4 irc 7.4.6 Sec. 7.5 7.5.1 Incorrect description of firearm Reactivation of a registered unserviceable NFA firearm The identification of firearms ……………………………………..…………………….44 Serial numbers What is an acceptable serial number? Additional information Measuring the depth of markings Obtaining variances to the marking requirements Variances in the name and location of the manufacturer Variances for manufacturers’ contractors Marking destructive devices Marking parts, other than frames or receivers, defined as NFA firearms Marking frames or receivers that are not complete weapons at the time of disposition Marking silencer parts Manufacturing machineguns .............................................................................................47 Manufacture of machineguns for sale to government agencies or as “sales samples” Manufacture of machineguns for exportation May machineguns be manufactured for distribution to U.S. Government contractors? May machinegun receivers be manufactured and used as replacement parts for machineguns lawfully registered and possessed prior to May 19, 1986? Manufacture of NFA firearms by contractors ..................................................................48 Contractors’ manufacture of machineguns Manufacture of machineguns solely for purposes of testing Manufacturing NFA firearms exclusively for the United States .....................................48 Locations ..........................................................................................................................49 C 7.3.3.1 7.3.3.2 Sec. 7.4 7.4.1 7.4.1.1 7.4.2 7.4.3 7.4.4 7.4.4.1 7.4.4.2 7.4.4.3 7.4.4.4 7.4.5 by Qualifying to import NFA firearms .................................................................................50 Licensing under the GCA Engaging in business at multiple locations Engaging in business as both an importer and a manufacturer Do importers and manufacturers need a dealer’s license to deal in the firearms they import or manufacture? Importers of destructive devices Payment of special (occupational) tax to do business in NFA firearms Registration by importers of U.S. Munitions Import List articles with ATF What is an “importer”?; What is “importation”? ............................................................51 “Importer” “Importation” Importation of NFA firearms ..........................................................................................51 Importation of machineguns Importation for use of the United States, qualifying political subdivisions, and law enforcement agencies ew ed Sec. 8.1 8.1.1 8.1.1.1 8.1.1.2 8.1.1.3 Fi CHAPTER 8. IMPORTING NFA FIREARMS La st Vi 8.1.1.4 8.1.2 8.1.3 Sec. 8.2 8.2.1 8.2.2 Sec. 8.3 8.3.1 8.3.2 vi Importation for use by Nuclear Regulatory Commission (NRC) licensees and authorized contractors 8.3.4 Importation for authorized scientific or research purposes 8.3.5 Importation for use as a model by a registered manufacturer 8.3.6 Importation for use as a “sales sample” 8.3.7 Importing multiple quantities of the same model firearm as sales samples 8.3.8 Importation of NFA weapons classified as curios or relics 8.3.9 Conditional importation 8.3.10 Temporary importation of NFA firearms 8.3.11 Re-importation of NFA firearms temporarily exported from the United States by nonlicensees. 8.3.12 What is the difference between a Customs Bonded Warehouse (CBW) and a Foreign Trade Zone (FTZ)? 8.3.12.1 Customs Bonded Warehouse 8.3.12.2 Foreign Trade Zone 8.3.13 Preparation of ATF Forms 6 8.3.14 “eForm6” 8.3.15 Preparation of ATF Forms 6A Sec. 8.4 Registering the importation of NFA firearms....................................................................56 8.4.1 Preparation of ATF Forms 2 8.4.2 Filing ATF Forms 2 Sec. 8.5 The identification of firearms ...........................................................................................56 8.5.1 Serial numbers 8.5.1.1 What is an acceptable serial number? 8.5.2 Additional information 8.5.3 Measuring the depth of markings 8.5.4 Obtaining variances to the marking requirements 8.5.4.1 Variances in the name and location of the importer 8.5.4.2 Marking frames or receivers that are not complete weapons at the time of disposition 8.5.4.3 Marking destructive devices 8.5.4.4 Marking parts, other than frames or receivers, defined as NFA firearms 8.5.5 When must markings be applied to imported NFA firearms? ew ed by Fi rs t C irc ui tL ib ra r y on 06 /2 1/ 20 1 6 8.3.3 CHAPTER 9. TRANSFERS OF NFA FIREARMS Definition of “transfer” .....................................................................................................59 Only previously registered firearms may be lawfully transferred ....................................59 Interstate transfers of NFA firearms .................................................................................59 ATF forms for use in transferring NFA firearms..............................................................59 ATF Form 3 ATF Form 4 Copies of transferees’ State or local licenses or permits Transfers to entities other than individuals that are not FFLs/SOTs ATF Form 5 Conveyances of NFA firearms not treated as “transfers” under the NFA.......................61 La st Vi Sec. 9.1 Sec. 9.2 Sec. 9.3 Sec. 9.4 9.4.1 9.4.2 9.4.2.1 9.4.2.2 9.4.3 Sec. 9.5 vii Repair of firearm silencers Possession of firearms by employees of FFLs/SOTs for employers’ business purposes 9.5.3 Distribution of estate firearms 9.5.3.1 Distributions to heirs 9.5.3.2 Distributions to persons outside the estate 9.5.3.3 Uncertainty about the registration status of decedents’ firearms 9.5.3.4 Unregistered estate firearms 9.5.3.5 Distribution of decedents’ “sales samples.” Sec. 9.6 Manufacturers’ use of contractors to perform work on firearms.......................................63 Sec. 9.7 Transfers of unserviceable NFA firearms..........................................................................63 Sec. 9.8 Government-owned firearms ............................................................................................63 Sec. 9.9 Law enforcement certifications.........................................................................................63 9.9.1 Is a law enforcement officer required to sign the certification? 9.9.2 Is a law enforcement certification acceptable if signed by an official outside the jurisdiction where the transferee resides? Sec. 9.10 Transfers of imported NFA firearms ................................................................................64 9.10.1 Firearms imported for government agencies 9.10.2 “Sales samples” 9.10.3 Transferring multiple quantities of the same firearm model as “sales samples” Sec. 9.11 Transfers of machineguns imported or manufactured on after May 19, 1986 .................65 9.11.1 Machinegun prohibition in 18 U.S.C. 922(o) 9.11.2 May machineguns subject to section 922(o) be transferred to government contractors? Sec. 9.12 Are FFLs/SOTs required to initiate a background check of the transferee under the Brady Law in connection with the transfer of an NFA firearm? ......................65 Sec. 9.13 May an FFL/SOT transfer a personally owned destructive device without qualifying to do business in destructive devices? .............................................................66 Section 9.14 Transferable Status and the Form 10 …………………………………………………...66 Fi rs t C irc ui tL ib ra r y on 06 /2 1/ 20 1 6 9.5.1.1 9.5.2 by CHAPTER 10. COLLECTORS OF NFA FIREARMS La st Vi ew ed Sec 10.1 Curios or relics .................................................................................................................67 10.1.1 Definition of curio or relic 10.1.2 Curio or relic classification 10.1.3 NFA firearms classified as curios or relics 10.1.4 The Firearms Curios or Relics List (ATF P 5300.11) 10.1.5 DEWATS 10.1.5.1 Reactivation of DEWATS Sec. 10.2 Licensed collector ...........................................................................................................69 10.2.1 Collector of curios or relics license 10.2.2 Receipt of NFA curios or relics by a licensed collector 10.2.3 Transfer of NFA curios or relics by a licensed collector Sec. 10.3 Recordkeeping requirements ..........................................................................................70 10.3.1 Acquisition and disposition records 10.3.2 Termination of a collector’s license. viii CHAPTER 11. EXPORTATION OF NFA FIREARMS ra r y on 06 /2 1/ 20 1 6 Arms Export Control Act (AECA), 22 U.S.C. 2778 ......................................................71 State Department regulations implementing the AECA Firearms and firearm component parts subject to the AECA Category I Category II Registration of exporters and manufacturers under the AECA ......................................71 Submission of registration form, DSP-9 Transmittal letter must accompany Form DSP-9 Notification of changes in information furnished by registrants License requirement for permanent export of a defense article......................................72 License requirement for temporary export of a defense article ......................................72 Prohibited exports and sales to certain countries............................................................ 72 ATF requirements relative to the exportation of firearms ...............................................72 Applying for an export permit on ATF Form 9 Transfers to another person for export Proof of exportation tL ib Sec. 11.1 11.1.1 11.1.2 11.1.2.1 11.1.2.2 Sec. 11.2 11.2.1 11.2.2 11.2.3 Sec. 11.3 Sec. 11.4 Sec. 11.5 Sec. 11.6 11.6.1 11.6.2 11.6.3 ui CHAPTER 12. RECORDKEEPING Maintaining proof of registration....................................................................................74 Manner in which registration documents must be kept Recordkeeping where registered firearms are kept on premises other than the registered owner’s place of business Sec. 12.2 Verifying the description of firearms on registration documents ...................................74 Sec. 12.3 Correcting an error in the description of a registered firearm ........................................74 Sec. 12.4 Custody of NFA firearms by employees of FFLs/SOTs ................................................75 12.4.1 Who is an “employee” of an FFL/SOT? Sec. 12.5 Firearms acquisition and disposition records..................................................................75 12.5.1 Commercial records of firearms received 12.5.2 Variances in the recordkeeping requirements for the acquisition and disposition of firearms 12.5.2.1 Computerized records. Sec. 12.6 Forms 4473 .....................................................................................................................77 12.6.1 Firearms acquired from an FFL by an organization 12.6.2 Return of firearms delivered to an FFL for repair or customizing 12.6.3 Maintaining Forms 4473 Sec. 12.7 Record retention period...................................................................................................78 La st Vi ew ed by Fi rs t C irc Sec. 12.1 12.1.1 12.1.2 ix CHAPTER 13. REQUIRED REPORTS AND NOTIFICATIONS TO ATF 6 20 1 /2 1/ 06 on y ra r ib tL rs t C 13.8.1 13.8.2 13.8.3 ui Sec. 13.4 Sec. 13.5 13.5.1 13.5.2 Sec. 13.6 Sec. 13.7 Sec. 13.8 Change of business address ..............................................................................................80 GCA requirements Application for amended license NFA requirements Change in trade name ........................................................................................................80 GCA requirements NFA requirements Change in control ..............................................................................................................81 Changes in an FFL’s “responsible persons” A “change in control” is distinguishable from the sale or transfer of a firearms business to another person or entity Reporting firearms transaction information ......................................................................82 Reporting thefts or losses of firearms ...............................................................................82 GCA requirements NFA requirements Reporting theft or loss of NFA registration documents ....................................................83 Reporting information in response to ATF trace requests ................................................83 Requesting permission to transport certain firearms in interstate or foreign commerce .. .......................................................................................................................83 A written (letter) request Form 5320.20 One-year approval irc Sec. 13.1 13.1.1 13.1.1.1 13.1.2 Sec. 13.2 13.2.1 13.2.2 Sec. 13.3 13.3.1 13.3.2 Disposition of GCA records ..............................................................................................85 “Records” for purposes of this section Transfer of the business to a new owner Discontinuance of the business Disposition of NFA firearms (other than “post-‘86 machineguns”) .................................85 Sole proprietors Corporations, partnerships, and associations Effect of dissolution of a corporation, partnership, or association Avoiding NFA transfer tax Disposition of “post-‘86 machineguns” ............................................................................86 La st Vi ew ed Sec. 14.1 14.1.1 14.1.2 14.1.3 Sec. 14.2 14.2.1 14.2.2 14.2.2.1 14.2.3 Sec. 14.3 by Fi CHAPTER 14. GOING OUT OF BUSINESS x CHAPTER 15. PENALTIES AND SANCTIONS 06 /2 1/ 20 1 6 NFA ..................................................................................................................................88 Criminal Forfeiture Assessment of NFA tax GCA ..................................................................................................................................88 Criminal Forfeiture License denial or revocation AECA ................................................................................................................................89 Criminal Forfeiture on Sec. 15.1 15.1.1 15.1.2 15.1.3 Sec. 15.2 15.2.1 15.2.2 15.2.3 Sec. 15.3 15.3.1 15.3.2 ra r y APPENDIX A (NFA, 26 U.S.C. Chapter 53) .......................................................................................90 ib APPENDIX B (ATF Rulings and articles) ….....................................................................................141 tL APPENDIX C (ATF Forms) .........................................................................................................................179 La st Vi ew ed by Fi rs t C irc ui APPENDIX D (Sample form letters) ..................................................................................................207 xi CHAPTER 1. INTRODUCTION Section 1.1 History of the National Firearms Act (NFA) 06 /2 1/ 20 1 6 1.1.1 The NFA of 1934. The NFA was originally enacted in 1934.1 Similar to the current NFA, the original Act imposed a tax on the making and transfer of firearms defined by the Act, as well as a special (occupational) tax on persons and entities engaged in the business of importing, manufacturing, and dealing in NFA firearms. The law also required the registration of all NFA firearms with the Secretary of the Treasury. Firearms subject to the 1934 Act included shotguns and rifles having barrels less than 18 inches in length, certain firearms described as “any other weapons,” machineguns, and firearm mufflers and silencers. ib ra r y on While the NFA was enacted by Congress as an exercise of its authority to tax, the NFA had an underlying purpose unrelated to revenue collection. As the legislative history of the law discloses, its underlying purpose was to curtail, if not prohibit, transactions in NFA firearms. Congress found these firearms to pose a significant crime problem because of their frequent use in crime, particularly the gangland crimes of that era such as the St. Valentine’s Day Massacre. The $200 making and transfer taxes on most NFA firearms were considered quite severe and adequate to carry out Congress’ purpose to discourage or eliminate transactions in these firearms. The $200 tax has not changed since 1934. by Fi rs t C irc ui tL As structured in 1934, the NFA imposed a duty on persons transferring NFA firearms, as well as mere possessors of unregistered firearms, to register them with the Secretary of the Treasury. If the possessor of an unregistered firearm applied to register the firearm as required by the NFA, the Treasury Department could supply information to State authorities about the registrant’s possession of the firearm. State authorities could then use the information to prosecute the person whose possession violated State laws. For these reasons, the Supreme Court in 1968 held in the Haynes case that a person prosecuted for possessing an unregistered NFA firearm had a valid defense to the prosecution - the registration requirement imposed on the possessor of an unregistered firearm violated the possessor’s privilege from self-incrimination under the Fifth Amendment of the U.S. Constitution.2 The Haynes decision made the 1934 Act virtually unenforceable. La st Vi ew ed 1.1.2 Title II of the Gun Control Act of 1968. Title II amended the NFA to cure the constitutional flaw pointed out in Haynes.3 First, the requirement for possessors of unregistered firearms to register was removed. Indeed, under the amended law, there is no mechanism for a possessor to register an unregistered NFA firearm already possessed by the person. Second, a provision was added to the law prohibiting the use of any information from an NFA application or registration as evidence against the person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration.4 In 1971, the Supreme Court reexamined the NFA in the Freed case and found that the 1968 amendments cured the constitutional defect in the original NFA.5 1 National Firearms Act, Public Law 474, approved June 26, 1934. Haynes v. U.S., 390 U.S. 85 (1968). 3 Gun Control Act of 1968, Public Law 90-618, approved October 22, 1968. 4 26 U.S.C. 5848 5 U.S. v. Freed, 401 U.S. 601 (1971) 2 1 Title II also amended the NFA definitions of “firearm” by adding “destructive devices” and expanding the definition of “machinegun.” /2 1/ 20 1 6 1.1.3 Firearm Owners’ Protection Act. In 1986, this Act amended the NFA definition of “silencer” by adding combinations of parts for silencers and any part intended for use in the assembly or fabrication of a silencer.6 The Act also amended the GCA to prohibit the transfer or possession of machineguns.7 Exceptions were made for transfers of machineguns to, or possession of machineguns by, government agencies, and those lawfully possessed before the effective date of the prohibition, May 19, 1986. 06 Section 1.2 Meaning of terms. Certain terms and abbreviations used in this book are defined as follows: on 1.2.1 “AECA” means the Arms Export Control Act, 22 U.S.C. 2778. ra r y 1.2.2 “ATF” means the Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Department of Justice. tL ib 1.2.3 “ATF Ruling” means a formal ruling published by ATF stating its interpretation of the law and regulations as applied to a specific set of facts. irc ui 1.2.4 “CFR” means the Code of Federal Regulations in which Federal firearms regulations are published. C 1.2.5 “DIO” means an ATF Director of Industry Operations responsible for regulating the firearms industry within an ATF field division. Fi rs t 1.2.6 “FFL” means a Federal firearms licensee, person or entity having a license to import, manufacture, or deal in firearms under the GCA. by 1.2.7 “FTB” means ATF’s Firearms Technology Branch. ew ed 1.2.8 “GCA” means the Gun Control Act of 1968, 18 U.S.C. Chapter 44. 1.2.9 “NFA” means the National Firearms Act, 26 U.S.C. Chapter 53. st Vi 1.2.10 “NFRTR” means the National Firearms Registration and Transfer Record containing the registration of NFA firearms. La 1.2.11 “SOT” means a special occupational taxpayer, a person or entity qualified to import, manufacture, or deal in NFA firearms by having paid the special (occupational) tax to do so under the NFA. 6 7 Firearm Owners’ Protection Act, Public Law 99-308, approved May 19, 1986. 18 U.S.C. 922(o) 2 1.2.12 “U.S.C.” means the United States Code in which Federal firearms laws are codified. Section 1.3 Administration and enforcement of Federal firearms laws /2 1/ 20 1 6 Until January 24, 2003, authority to administer and enforce Federal firearms laws was the responsibility of the Bureau of ATF within the U.S. Department of the Treasury. As a result of enactment of Section 1111 of the Homeland Security Act of 2002, ATF and its firearms authorities were transferred to the U.S. Department of Justice, effective January 24, 2003. ATF’s name was also changed to the Bureau of Alcohol, Tobacco, Firearms and Explosives. ATF continues to have the authority to administer and enforce Federal firearms laws. The Department of State retained its authority over the enforcement of the export provisions of the AECA that relate to firearms. 06 Section 1.4 What are regulations and rulings? irc ui tL ib ra r y on 1.4.1 Regulations. Regulations interpret the statutes (the law) and explain the procedures for compliance. The Administrative Procedure Act (APA) generally requires agencies to publish proposed regulations in the Federal Register as a notice of proposed rulemaking, giving the public the opportunity to comment on the proposals before they may be issued as final regulations. The APA provides no specific comment period for proposed rules under the NFA.8 As specifically provided for in the GCA, GCA regulations require a comment period of at least 90 days.9 An exception in the APA eliminates the need to provide any notice or comment period with respect to AECA regulations. Regulations have the force and effect of law. Courts will uphold a regulation if they find reasonable legal basis for it and if it generally is within the scope of the statute. by Fi rs t C 1.4.2 Rulings. ATF publishes rulings in its periodic bulletins and posts them on the ATF website. These contain ATF’s interpretation of the law and regulations as they pertain to a particular fact situation. Rulings do not have the force and effect of law but may be cited as precedent with respect to substantially similar fact situations. Courts will recognize and apply such rulings if they are determined to correctly interpret the law and regulations. Section 1.5 Other ATF publications Vi ew ed 1.5.1 ATF’s internet website. This is the best source for up to date information on ATF’s firearms administration and enforcement activities, including amendments to the law, rulings, regulations, and open letters to firearms industry members. The website address is http://www.atf.gov. 1.5.2 ATF P 5300.4. This is ATF’s publication, “Federal Firearms Regulations Reference Guide.” La st ATF supplies the publication to all FFLs and SOTs. It contains all Federal firearms laws and regulations (except those pertaining to the firearms and ammunition excise tax and State Department export regulations), ATF firearms rulings, articles on various firearms issues, and questions and answers. The publication can be found on ATF’s website, http://www.atf.gov, and downloaded. 8 9 5 U.S.C. 552 18 U.S.C. 926(b) 3 Section 1.6 ATF points of contact 20 1 6 Chief, National Firearms Act Branch Bureau of Alcohol, Tobacco, Firearms and Explosives 244 Needy Road Martinsburg, WV 25405 Phone: (304) 616-4500 Fax: (304) 616-4501 06 /2 1/ Chief, Federal Firearms Licensing Center Bureau of Alcohol, Tobacco, Firearms and Explosives 244 Needy Road Martinsburg, WV 25405 ra r ib irc ui tL Chief, Firearms & Explosives Imports Branch Bureau of Alcohol, Tobacco, Firearms and Explosives 244 Needy Road Martinsburg, WV 25405 Phone: (304) 616-4550 Fax: (304) 616-4551 y on Phone: (304) 616-4600 or 1-866-662-2750 Fax: (304) 616-4501 or 1-866-257-2749 by Fi rs t C Chief, Firearms Technology Branch Bureau of Alcohol, Tobacco, Firearms and Explosives 244 Needy Road Martinsburg, WV 25405 Phone: (304) 260-5476 Fax: (304) 260-1701 ew ed Section 1.7 ATF Forms La st Vi ATF forms may be ordered from ATF’s Distribution Center by use of the Center’s order form on ATF’s website at http://www.atf.gov. After entering the website, click on “Forms.” They may also be obtained by calling the Center at (301) 583-4696 or writing the ATF Distribution Center at 1519 Cabin Branch Drive, Landover, MD 20785-3816. 4 CHAPTER 2. WHAT ARE “FIREARMS” UNDER THE NFA? Section 2.1 Types of NFA firearms on 06 /2 1/ 20 1 6 The NFA defines the specific types of firearms subject to the provisions of the Act. These definitions describe the function, design, configuration and/or dimensions that weapons must have to be NFA firearms. In addition to describing the weapon, some definitions (machinegun, rifle, shotgun, any other weapon) state that the firearm described also includes a weapon that can be readily restored to fire. A firearm that can be readily restored to fire is a firearm that in its present condition is incapable of expelling a projectile by the action of an explosive (or, in the case of a machinegun, will not in its present condition shoot automatically) but which can be restored to a functional condition by the replacement of missing or defective component parts. Please be aware that case law is not specific but courts have held that the “readily restorable” test is satisfied where a firearm can be made capable of renewed automatic operation, even if it requires some degree of skill and the use of tools and parts. Fi rs t C irc ui tL ib ra r y 2.1.1 Shotgun A shotgun is a firearm designed to be fired from the shoulder and designed to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles or a single projectile for each pull of the trigger.10 A shotgun subject to the NFA has a barrel or barrels of less than 18 inches in length. | 15 inches _ | La st Vi ew ed by The ATF procedure for measuring barrel length is to measure from the closed bolt (or breech-face) to the furthermost end of the barrel or permanently attached muzzle device. Permanent methods of attachment include full-fusion gas or electric steel-seam welding, high-temperature (1100°F) silver soldering, or blind pinning with the pin head welded over. Barrels are measured by inserting a dowel rod into the barrel until the rod stops against the bolt or breech-face. The rod is then marked at the furthermost end of the barrel or permanently attached muzzle device, withdrawn from the barrel, and measured. 10 26 U.S.C. 5845(d) 5 2.1.2 Weapon made from a shotgun. A weapon made from a shotgun is a shotgun type weapon that has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length. 25 inches _ | /2 1/ 20 1 6 | on 06 The overall length of a firearm is the distance between the muzzle of the barrel and the rearmost portion of the weapon measured on a line parallel to the axis of the bore. ib ra r y 2.1.3 Rifle. A rifle is a firearm designed to be fired from the shoulder and designed to use the energy of an explosive in a fixed cartridge to fire only a single projectile through a rifled barrel for each single pull of the trigger.11 A rifle subject to the NFA has a barrel or barrels of less than 16 inches in length. 12 inches ________| Fi rs t C irc ui tL | La st Vi ew ed by The ATF procedure for measuring barrel length is to measure from the closed bolt (or breech-face) to the furthermost end of the barrel or permanently attached muzzle device. Permanent methods of attachment include full-fusion gas or electric steel-seam welding, high-temperature (1100°F) silver soldering, or blind pinning with the pin head welded over. Barrels are measured by inserting a dowel rod into the barrel until the rod stops against the bolt or breech-face. The rod is then marked at the furthermost end of the barrel or permanently attached muzzle device, withdrawn from the barrel, and measured. 11 26 U.S.C. 5845(c) 6 2.1.4 Weapon made from a rifle. A weapon made from a rifle is a rifle type weapon that has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length. 6 18 inches _____________| /2 1/ 20 1 | on 06 The overall length of a firearm is the distance between the muzzle of the barrel and the rearmost portion of the weapon measured on a line parallel to the axis of the bore. pengun knife gun La st Vi ew ed