INDUSTRY NEWS: OCTOBER 2004

By Robert M. Hausman

Details on Sales of Firearms to Non-Government Law Enforcement Entities

During the 2004 S.H.O.T. Show, a seminar was presented by the Bureau of Alcohol, Tobacco, Firearms & Explosives on “Sales of Firearms to Non-Government Law Enforcement Entities.” Partly sponsored by Glock, Inc., the presenters from the Bureau included Teresa Ficaretta, Associate Chief Counsel, Firearms, Explosives & Arson, Larry White, Industry Liaison, ATF Firearms Programs Division and Gary Schaible, Program Manager, ATF National Firearms Act Branch. Following is a synopsis of the seminar’s key points.

The Gun Control Act of 1968 (GCA) generally requires that FFLs sell firearms only to residents of their own state and that such sales be in compliance with state law -18 U.S.C. 922(b)(2), (b)(3). The GCA prohibits transfer of firearms when the seller knows or has reasonable cause to believe that the purchaser is a felon or other prohibited person -18 U.S.C. 922(d). The GCA also requires that sales to non-licensees be completed only after a NICS check -18 U.S.C. 922(t).

When individual law enforcement officers are purchasing firearms with their own funds, the purchases must be for official use to qualify for exemption from the NICS check and the filling out of a Form 4473 as long as a law enforcement letter is provided. Such transfers may be conducted interstate.

Transfers of assault weapons to private nuclear security companies must comply with interstate controls, NICS, and prohibited persons restrictions. These firms are not government agencies.

In determining whether a particular entity is exempt under 18 U.S.C. 925(a)(1), 922(o), 922(v), or 922(w), ATF must ensure the entity is an agency of the U.S., a state, or local government and that the entity must be obtaining the firearms for officials who have the authority to act as “peace officers” under federal or state law. Contractors of government agencies are not exempt. Transfers of firearms to government agencies may be interstate, with no NICS checks required.

Title 18 U.S.C. 922(w) prohibits the transfer and possession of large capacity ammunition feeding devices (those holding more than 10-rounds). The 18 U.S.C. 922(w)(3) exceptions are the same as for semiautomatic assault weapons. Note: Sections 922(v) and 922(w) are scheduled to sunset on Sept. 13, 2004.

Title 18 U.S.C. 922(v)(1) prohibits the manufacture, transfer, and possession of semiautomatic assault weapons. Title 18 U.S.C. 922(v)(4) contains exceptions for government agencies and law enforcement officers employed by such agencies for law enforcement use; transfer to private security companies for physical protection at licensed nuclear facilities; possession by retired law enforcement officers who receive a semiautomatic assault weapon upon retirement; and testing or experimentation authorized by ATF.

Title 18 U.S.C. 922(o)(1) prohibits the transfer or possession of machineguns manufactured on or after May 19, 1986. Title 18 U.S.C. 922(o)(2) lists exceptions for transfers to or by or possession by or under the authority of federal, state, and local government agencies.

Title 18 U.S.C. 925(d)(3) prohibits the importation of firearms that are NFA firearms, surplus military firearms, or non-sporting firearms. Title 18 U.S.C. 925(a)(1) provides that the GCA does NOT apply (except for 922(d)(9) and (g)(9)) to sales of firearms to government agencies.

National Firearms Act

The National Firearms Act (NFA), 26 U.S.C. Chapter 53, requires all firearms that are not in the possession or under the control of the U.S. to be registered – 26 U.S.C. 5841. The term “firearm” is defined in 26 U.S.C. 5845(a) to include short-barrel shotguns, short-barrel rifles, machineguns, silencers, destructive devices, and “any other weapons,” i.e. smooth-bored handguns and certain others.

Title 26 U.S.C. 5844 provides that the import provisions of the NFA prohibit the importation of NFA firearms except (1) for official use of government agencies; (2) for scientific or research purposes; or (3) solely for testing or use as a model by a registered manufacturer or as a sample by a registered importer or registered dealer. Title 26 U.S.C. 5852 provides that firearms may be transferred to agencies of the U.S. without payment of transfer tax. Title 26 U.S.C. 5853 provides that firearms may be transferred to state and local government agencies without payment of transfer tax.

In determining whether an entity is eligible to import firearms under the government agency exception of 26 U.S.C. 5844(1), ATF uses the same test as for the GCA exception in 18 U.S.C. 925(a)(1), in that the entity must be an agency of the United States, a state, or a local government and the entity must be obtaining the firearms for officials who have the authority to act as “peace officers” under federal or state law. Contractors of government agencies are not exempt.

NFA Transactions

For state and local agencies, it is recommended that the purchase order from the agency, a copy of the certificate for exemption from the firearms excise tax and/or any letters or supporting documents on agency letterhead be forwarded to ATF. NFA Branch examiners have resource material on hand to research government agencies and information from the Internet can also be used. To help in this process, it should be kept in mind that the well-known federal agencies present no problems in processing the forms. The same applies to well-known state agencies, such as state police, highway patrol, or criminal investigation divisions. At a local level, the police departments for cities and towns and county sheriff offices are easily identifiable. The problems are with the more obscure agencies.

Upon submission of the Form 5 to the NFA Branch, the examiner will review the application to determine whether the receiving party is a federal, state, or local government agency, and (1) is entitled to receive and possess the firearm(s) being transferred exempt from the payment of the transfer tax.

Among the NFA issues to consider is that there is a tax imposed on the transfer of NFA firearms except where the transfer is between licensees who have paid the special (occupational) tax or when the transaction is to or from a government agency. Government agencies may receive firearms interstate.

Transactions between “Class 3” dealers cannot be completed using only a distributors purchase order without a government purchase order or letter. The government documentation must be provided. Acronyms cannot be used on the forms. The agency’s name must be spelled out.

ATF could consider an application for transfer of an NFA firearm to the offices of district attorneys, coroners, and/or federal, state and local judges if they can provide documentation of “peace officer” status under state law.

In regard to secondary schools, ATF has approved transfers of NFA firearms to some school systems where they have school police assigned. ATF cannot approve transfers of NFA firearms to private/corporate railroads, as they are not a government agency.

NFA transfers to the United Nations cannot be approved, as it is not a government agency. NFA transfers to non-profit agencies, Native American tribal police, private universities and colleges cannot be approved, as they are not government agencies. NFA transfers to state or community colleges can be approved only if the schools are part of the government and have law enforcement authority.

Federal agencies can receive NFA firearms. Federal contractors (such as for nuclear plants) cannot as they are not a government agency- while they could possess certain NFA firearms, such as short barreled rifles or silencers (domestically-made), the transfer to the contractor would be subject to the transfer tax and must be made on an intrastate basis.

NFA firearms may only be imported for (1) use by a United States government agency or by an agency of any state, (2) for scientific or research purposes, or (3) for testing or use as a model by a manufacturer or as a sample by an importer or dealer. The possession of machineguns is more restrictive and is limited to possession by a government agency.

GCA Regulatory Requirements

27 CFR 478.132 provides that FFLs may transfer semiautomatic assault weapons (SAW) and large capacity ammunition feeding devices (LCAFD) to law enforcement officers for use in performing official duties and to employees or contractors of nuclear facilities provided certain documentation is presented to the FFL.

The documentation required for transfers to law enforcement officers includes: a statement from the officer, executed under penalty of perjury, stating the SAW/LCAFD is being acquired for official use and not for personal use or transfer or resale; a written statement from the officer’s supervisor, on agency letterhead, stating that the SAW/LCAFD is being acquired for use in official duties, the SAW/LCAFD is suitable for use in official duties, the SAW/LCAFD is not for personal use, transfer, or resale.

To satisfy the “recognized persons in authority” requirement of 27 CFR 478.134(b), the person(s) must be: (in the case of a city/county police department) the commissioner, chief of police or director of public safety; (for a sheriff’s dept.) the sheriff; (for state police/highway patrol) the superintendent or the supervisor of the office to which the state officer is assigned; a federal agency’s supervisor in charge of the office to which the federal officer is assigned. The signor must have delegated authority.

27 CFR 478.134 provides that when making sales to law enforcement officers, no ATF Form 4473 or NICS check is required when the officer is: acquiring a firearm for use in official duties; presents certification on agency letterhead signed by a person in authority, stating the officer will use the firearm in official duties, and that a records check did not reveal a conviction for a misdemeanor crime of domestic violence. A disposition entry in the dealer’s acquisition and dispositions book is required. The firearms may be transferred to the purchasing officer without regard to the officer’s state of residence.

The documentation required for transfers to employees or contractors of nuclear facilities includes a written statement from employee’s/contractor’s supervisor, on agency or company letterhead, stating the SAW/LCAFD is for use in official duties, the SAW/LCAFD is suitable for use in official duties, and that the SAW/LCAFD is not for personal use, transfer, or resale.

The documentation required for transfers to employees or contractors of nuclear facilities also requires evidence of employment and a written statement from the employee or contractor under penalty of perjury, stating the SAW/LCAFD is for on-site facility security or for off-site authorized training (27 CFR 478.40(b)(7)).

AECA Statutory Background

The import provisions of the Arms Export Control Act (AECA), 22 U.S.C. 2778, and implementing regulations in 27 CFR Part 447, prohibit the importation of defense articles from “proscribed countries” – countries that are known sponsors of terrorism and countries with respect to which the U.S. maintains an arms embargo.

The exceptions to the permitting requirements and proscribed country restrictions are for minor components and parts for Category I(a) firearms (except for barrels, cylinders, receivers, or breech mechanisms) when the total value does not exceed $100 (27 CFR 447.41(c); and, importations by the United States. There are no exceptions for state/local government agencies or for contractors of government agencies.

“Defense articles” are defined to include most firearms up to .50 caliber (except for sporting shotguns), silencers, riflescopes manufactured to military specifications, ammunition up to .50 cal. (except for shotgun shells), and castings and forgings for firearms 27 CFR 447.21, 447.22. Parts and components for firearms and ammunition are also included. In order for an entity to be exempt from the permitting and other requirements of the AECA, the entity must be an agency of the U.S. Contractors of government agencies are not exempt.

To import nonsporting firearms and ammunition pursuant to exceptions, the importer must attach documentation to ATF Form 6 that clearly establishes the articles are entering the U.S. for delivery to a law enforcement or governmental agency.

ATF can approve an ATF Form 6 authorizing the importation of nonsporting firearms and ammunition not importable into the U.S. except as provided in 925(a)(1), 922(o) 922(v), or 922(w) when such articles are to be placed into a Foreign Trade Zone (FTZ) or Customs Bonded Warehouse (CBW). Articles placed into an FTZ or CBW have not yet “entered” the U.S. under the GCA. ATF cannot approve an ATF Form 6 for the importation of nonsporting firearms and ammunition into the U.S. except when such articles are being imported for delivery to law enforcement or governmental agencies.

An approved ATF Form 6 is required (27 CFR 447.41) to import defense articles as defined in 447.21, which includes all firearms other than sporting shotguns, and all ammunition other than ammunition for sporting shotguns. Importers of defense articles must also be registered with ATF (27 CFR 447.31).

In determining whether imports are sporting or nonsporting (18 U.S.C. 925(d)(3), ATF’s focus will be on ‘nonsporting firearms and ammunition,” which includes SAWs, LCAFDs, NFA, and surplus military firearms, and armor piercing, incendiary and tracer ammunition. Acceptable documentation for importation includes an original agency purchase order, signed by a person in authority, which stipulates the description and quantities of the articles requested on the ATF Form 6.

Barrels for sporting firearms are importable without restriction. Barrels for SAWs and other nonsporting Title 1 firearms, surplus military firearms, and NFA firearms are importable only for the purposes of repair or replacement.

Acceptable documentation for the importation of nonsporting firearms and ammunition pursuant to GCA exceptions is a letter issued on agency letterhead, signed by a person in authority, which describes and specifies the quantity of the articles the agency wishes to purchase. The letter must specify that the articles are being purchased for agency inventory with agency funds.

SAWs and other nonsporting Title 1 firearms cannot be approved for importation as sales samples.

An importer of NFA firearms sales samples must be a Special (Occupational) Taxpayer. The ATF Form 6 documentation needed is: a letter on agency letterhead, signed by a person in authority, expressing a need for, or an interest in seeing a demonstration of, the described NFA firearm; an agency purchase order; supplies must be available to meet future orders; a statement from the importer that the NFA firearm is not currently in inventory; and, if requesting more than one sample of each NFA firearm listed, an explanation must be provided of why more than one of each is needed. If the articles are surplus military curio or relic NFA firearms, the importer must also establish the suitability of such firearms for law enforcement use.

The author is the publisher of the small arms industry’s two most widely-read trade publications, The New Firearms Business (a bi-weekly newsletter that covers the domestic small arms industry) and The International Firearms Trade (a monthly newsletter primarily of interest to the import community). For subscription information, send an e-mail to: FirearmsB@aol.com or FAX to 802-751-8268.