INDUSTRY NEWS: MARCH 2006

By Robert M. Hausman

ATF has issued Ruling 2005-4 finding that certain integral devices intended to diminish the report of paintball guns are not “firearm silencers” or “firearm mufflers” under the Gun Control Act of 1968 or the National Firearms Act.

The ruling came about by the Bureau’s recent receipt of requests from paintball gun manufacturers to evaluate and classify integral devices intended to diminish a paintball gun’s report. Specifically, the manufacturers asked whether the device would be considered a “silencer” as defined in the Gun Control Act of 1968 (GCA), 18 U.S.C. Chapter 44, and the National Firearms Act (NFA), 26 U.S.C. Chapter 53.

A sample compressed air paintball gun was submitted to ATF containing a ported device attached to the barrel. The paintball gun’s barrel was one inch in diameter and was permanently welded in place. The section of the barrel the device was attached to had an internal diameter of .68 inches and was ported with 20 openings. Ten of the openings were rectangular in shape and were about .430 inches wide and 1 inch in length. The other 10 openings were oval in shape and approximately .25 inches wide and 1 inch in length. Two end caps, each with a diameter of 1.5 inches, were permanently welded to the barrel at either end of the ported section of the barrel.

A section of plastic tube about 8 inches in length and 2 inches in diameter covered the ported section of the barrel. It was attached by sliding it over the paintball gun barrel and was held in place by two rubber “O” rings affixed to metal bushings. These bushings were permanently welded to the barrel, one toward the rear and one at the muzzle end. The plastic tube was removable.

To determine whether the ported barrel and outer sleeve would function as a silencer on a firearm, it was removed by cutting with a hack saw. A threaded adaptor with tape wrapped around it was utilized so the device could be attached to a .22 caliber Ruger Mark II pistol. With the device attached, a sound meter test was performed, with five shots being fired with the device attached and five shots fired without the device attached. The testing indicated that the attachment of the device resulted in a 7.98 decibel sound reduction.

Definitions of Terms

In making its determination, ATF noted that the GCA defines the term “firearm” as: (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

Further, the definition of “firearm silencer” and “firearm muffler” in 18 U.S.C. 921(a)(24) provides as follows: The terms “firearm silencer” and “firearm muffler” mean any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication.

The NFA defines the term “firearm” to include any silencer as defined in section 921 of the GCA. 26 U.S.C. 5845(a)(7).

The term “make” is defined in the NFA to include manufacturing, putting together, altering, any combination of these, or otherwise producing a firearm. 26 U.S.C. 5845(i).

The paintball gun examined by ATF was determined not to be a “firearm” as defined, as it did not, is not designed to, and may not be readily converted to expel a projectile by the action of an explosive and does not utilize the frame or receiver of a firearm. Thus, the sole issue presented was whether the ported barrel and outer sleeve are a firearm muffler or firearm silencer as defined in the GCA and NFA.

ATF reasoned that the design characteristics of the paintball gun’s ported barrel and outer sleeve are similar to those of conventional commercial silencers. The barrel was ported to allow the escape of gases from a fired round and the outer sleeve dampens or muffles the sound when a round is fired. Moreover, the sound meter test indicated a reduction of 7.98 decibels when the ported barrel and sleeve were attached to a .22 caliber pistol, which ATF said is consistent with the sound reduction resulting from the use of commercial silencers.

Especially noteworthy is that the definition of “firearm silencer” and “firearm muffler” requires that the device be one for diminishing the report of a portable firearm. The device considered by ATF was permanently attached to and an integral part of a paintball gun, which is not a firearm as defined in the GCA or NFA. The device cannot be removed from the paintball gun without destroying the barrel and rendering the paintball gun unusable. Under these circumstances, the integral device is not a firearm muffler or firearm silencer.

However, once the device is cut from the paintball gun, it can be used to diminish the report of a firearm. As stated previously, the design characteristics of the device are consistent with those of commercial silencers, and ATF’s testing indicated that the device functions to reduce the report of the firearm. Moreover, removal of the device from the paintball gun “indicates some intention to utilize the device for something other than reducing the report of the paintball gun,” ATF said. Since the device will no longer be permanently attached to an unregulated item, and because of its silencer design characteristics, removal will result in the making of a silencer under the NFA and GCA. This is consistent with the definition of “make” (as stated above) in the NFA, as removal of the device results in production of a silencer, ATF says.

The Ruling

ATF thus “held” that a device for an unregulated paintball gun, having a permanently affixed, integral ported barrel and other components, that functions to reduce the report of the paintball gun is not a “firearm silencer” or “firearm muffler” as defined, as the device is not one for diminishing the report of a portable firearm.

ATF held further, removal of the permanently affixed ported barrel and other components from a paintball gun is a “making” of a silencer under the GCA and NFA that requires advance approval from ATF. The ruling, which is dated October 12, 2005, is signed by Carl J. Truscott, ATF’s director.

Case Against CA Importer Dropped

The state of California’s case filed against federally licensed importer Andy Sun has been dropped. The case was one of California’s largest gun possession cases on record and involved allegations that while Sun possessed the necessary federal licenses to operate his business, he did not have the required state permits. Judge Frank P. Briseno ruled last October that the state Dept. of Justice’s Firearms Division used protected information to get a search warrant for Sun’s Business and residence. Sun, 49, was indicted in 2004 on 55 felony counts of possession and sale of illegal assault weapons.

Agents of the state reportedly seized two machine guns, two grenade launchers, 26 “assault” rifles, one “assault” pistol, 482 “assault” shotguns, 388 rifles, 10 shotguns, 527 pistols, and 23,572 “high-capacity” magazines, according to the state attorney general’s office.

Among the guns Sun allegedly possessed were an Omega SPS-12, a Norinco MAK-90, a DPMS Arms Model A-15, a Colt Sporter rifle, a Romanian Model MAK-3, a Romanian Model MAK-2, a MAADI AK-47, a Norinco Model NHM-91, a Norinco Model 320 “Uzi”, an Arsenal Model SA93, a Yugoslavian Model M-90, a Poly Tech AK-47-S, a Norinco Model 56S, a Mitchell Arms Model M-90, an HK SL8-1, a Federal Ordnance Model M-14, a Thompson Auto-Ordnance firearm, a Norinco SKS, and an L1A1 Sporter.

Apparently, Sun did not have the necessary state licenses to own the above listed firearms and although not a federal issue, an ATF inspector notified California state authorities that firearms banned by the state were in Sun’s possession.

Judge Briseno ruled that the search warrant used by the state was based on mandatory information Sun was required to submit to the Bureau of Alcohol, Tobacco, Firearms & Explosives during an administrative inspection. He also consolidated the original 55 criminal counts to three.

Senior deputy district attorney Brian N. Gurwitz admitted the search warrant was based on evidence gathered during the course of an ATF inspection (in other words ATF agents tipped the state off as to what they found in Sun’s business premises) but said the dismissal would be appealed. “We respectfully disagree with the trial court’s ruling,” Gurwitz explained. “They (ATF) went to do an administrative inspection of his business, and they observed weapons he was not entitled to possess under state law.”

Remington to Import Zastava Rifles to U.S.

Serbian weapons maker Zastava Oruzje, in mid-October, signed a U.S. importation agreement with Remington Arms Co. The agreement, worth 3.2 million US dollars, was signed in Kragujevac, a major city located 140 km southeast of Belgrade, where Zastava Oruzje is based, the official Tanjug news agency reported. The deal involves the production for Remington of some 24,000 rifle barreled actions (without stocks) in various calibers. The rifles will be marked, “Remington-Zastava.”

The agreement also calls for the joint development of new models and the lending of expertise by Remington to aid the older Zastava plant in developing technical and technological innovations.

Zastava rifles were previously imported by K.B.I., Inc. of Harrisburg, PA. The firm’s founder, Michael Kassnar, said that the switch by Zastava to Remington came as somewhat of a surprise. He added that K.B.I. formerly had a $3.7 million contract with Zastava for the U.S. importation of rifles and that only about half that amount had actually been delivered due to the antiquated production processes and aging equipment employed by the Zastava factory. Remington declined comment.

ATF’s NFA Branch Now Relocated in WV

ATF’s National Firearms Act (NFA) Branch is now located in Martinsburg, W.Va. Since moving to the new offices, the NFA Branch has added Customer Service Representatives to assist industry members and the public with questions and in determining the status of the processing of notices and applications.

The NFA Branch’s new mailing address in Martinsburg, W.Va. is: National Firearms Act Branch, 244 Needy Road, Martinsburg, West Virginia 25401 Tel: (304) 616-4500 Fax: (304) 616-4501.

NFA Branch personnel assigned to Martinsburg, who may be reached at the above numbers, include: Kenneth Houchens – branch chief, Dawn Henson – section chief, Amy Stely – specialist, and legal instruments examiners Andrew Ashton, Nicole Dudash, Jason Frushour, Rob Howard, Dejuana McConner, Barbara Payne, Daniel Pinckney, Scott Robertson, William Shipman, Sandra Snook and Kendra Tate.

The following NFA Branch personnel continue to work at ATF Headquarters in Washington, DC, and may be reached at (202) 927-8330: Gary Schaible – Program Manager, specialists Sylvia Alexander, Denise Brown, Janice Fields, Cheryl Fisher and Maurice Walker, as well as legal instruments examiners Lucretia Fountain and Alma McCoy.

New ATF Form 4473 Must Be Used

All Federal Firearms Licensees (FFL) are reminded by ATF that they should have started using the new ATF Form 4473 on Monday, October 17, 2005.

Every FFL should be in receipt of the new forms (OMB No. 1140-0020). The new forms were required to be used starting Oct. 17th, as previous versions are obsolete. If any FFL is not in receipt of new ATF Forms 4473, he or she should immediately contact their local ATF office. If any FFL has received new forms but wishes to place an additional order, please contact the ATF Distribution Center at (703) 455-7801.

Canada May Sue U.S. Gunmakers

Canada is looking into ways to sue U.S. gun manufacturers for the spread of illegal weapons into the country, according to the Toronto Star newspaper. It’s one part of a multi-faceted crackdown on gun crime, due to be unveiled shortly. The package follows months of unusual violence in Toronto that came to be known as the “Summer of the Gun.” Of the 61 homicides so far this year, 41 have involved firearms, a record number.

The policy will also be seen as another shot by Prime Minister Paul Martin’s government across the bow of Canada-U.S. relations. Government sources told the Star that Canada will be looking into “every legal option” to stem a tide of crimes involving arms that make their way into the country illegally from the United States, often being smuggled across the border.

This includes possible suits against U.S. manufacturers, launched either in the United States or in Canada if the firm has assets there, the sources said. Though no precise estimates are available, Toronto police have said that almost half the gun crimes committed in Canada involved illegal, U.S. origin firearms.

The anti-gun-crime package will also include: tougher rules on sentencing and parole in gun crimes, including longer minimum sentence provisions and lifetime firearm-ownership bans on repeat offenders. Minimum sentences of one year in some firearms offenses could be doubled to two years, and 10-year ownership bans would be extended to lifetime prohibitions, the source said. Improvements to the witness protection program, to encourage people coming forward to reveal and testify against acquaintances who commit gun crimes, are expected to be proposed as well.

The author publishes two of the small arms industry’s most widely read trade newsletters, The International Firearms Trade which covers the world firearms scene, and The New Firearms Business which covers the domestic market. He also offers FFL-mailing lists to firms interested in direct marketing efforts to the industry. He may be reached at: FirearmsB@aol.com.