By Teresa Ficaretta, ESQ. & Johanna Reeves, ESQ.
Removal of Firearms from the National Firearms Act
Many of our readers are very familiar with the stringent controls the National Firearms Act (NFA) imposes on certain firearms, including registration requirements, transfer taxes, restrictions on importation and the requirement for advance government approval before transfer. What may be less known or understood is how to remove a firearm from the purview of the NFA through modification or destruction. This article will address the required steps to remove covered firearms from the NFA.
I. A QUICK REVIEW OF THE CONTROLLING STATUTES
A. THE NATIONAL FIREARMS ACT
The NFA imposes strict controls only over those firearms identified in the statute. These include short-barrel shotguns, short-barrel rifles, machineguns, silencers, destructive devices and other concealable firearms known as “any other weapons.” We will discuss each of these types of firearms further below.
The statute imposes on manufacturers, importers and makers of controlled firearms marking requirements, registration requirements and the need to obtain advance ATF approval for all transfers of registered firearms. A transfer tax of $200 is imposed on each firearm transferred, but exceptions from the tax are available for transfers between qualified Federal Firearms Licensees (FFLs) as well as transfers to federal, state and local government agencies. The NFA authorizes importation of NFA firearms for limited purposes, such as for government agencies, scientific or research purposes, or testing or use as a model or sample by qualified FFLs.
B. THE GUN CONTROL ACT
For the purposes of this article, we focus on section 922(o) of the GCA, which makes it unlawful for any person to transfer or possess a machinegun. The only exceptions to this prohibition are transfers to or by, or possession by or under the authority of, the United States, a state or a local government agency. The machinegun prohibition does not apply to any lawful transfer or possession of a machinegun that was lawfully possessed before the effective date of the statute (May 19, 1986).
II. REMOVAL OF FIREARMS FROM THE NFA
A. SHORT-BARREL RIFLES AND SHORT-BARREL SHOTGUNS
An NFA-controlled rifle is a rifle having a barrel or barrels less than 16 inches in length. In order to be regulated as a short-barrel rifle, the weapon must have (1) a buttstock (indicating it is designed and intended to be fired from the shoulder); (2) a rifled bore; and (3) a barrel or barrels of less than 16 inches in length.
An NFA-controlled shotgun is a shotgun having a barrel or barrels less than 18 inches in length. To be regulated as a short-barrel shotgun, the weapon must have (1) a buttstock (indicating it is designed and intended to be fired from the shoulder); (2) a smooth bore; and (3) a barrel or barrels of less than 18 inches in length.
The process for removing a short-barrel rifle or short-barrel shotgun from the NFA does not require destruction of the receiver, as long as the firearm does not also shoot automatically. Unlike machineguns, which we will discuss in detail below, all that is required to remove a short-barrel rifle or short-barrel shotgun from the NFA is to remove and discard the barrel.
For an NFA-qualified manufacturer (a Type 07 or 10 FFL and Special (Occupational) Taxpayer), the barrel must be stored separately from the rest of the rifle parts. For any person other than an NFA-qualified manufacturer, however, it is not sufficient to only remove the barrel. As long as the barrel and the rest of the parts remain under the custody and control of the same person, that person will be in possession of a short-barrel rifle or a short-barrel shotgun1. Consequently, the barrel should either be destroyed or transferred to another person. A barrel of 16 inches or more may then be attached to the rifle, or, in the case of a shotgun, a barrel of 18 inches or more may be attached. This will result in both types of long guns being subject only to the GCA and not the NFA.
Another method of removing a short-barrel rifle or short-barrel shotgun from the NFA is to permanently attach a barrel extension to the short barrel. The barrel extension could be a muzzle brake, choke or an additional piece of barrel. In any case, ATF requires that the barrel extension be permanently affixed by gas or electric steel seam welding or the use of high temperature silver solder having a flow point of 1100 degrees Fahrenheit. If the barrel of a rifle or shotgun is permanently extended to at least 16 or 18 inches, respectively, the modified weapons are no longer subject to the NFA.
B. ANY OTHER WEAPON
The NFA defines “any other weapon” (AOW) to include a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell. This language regulates a number of popular “shot pistols” designed to fire shotgun shells. Because the statutory definition requires this category of AOW to have a smooth bore, removal can be accomplished by removing and disposing of the smooth bore barrel. Again, disassembly is not sufficient for removal—the barrel must be destroyed or transferred to another person. Alternatively, ATF also recognizes removal through permanently installing a rifled sleeve chambered to accept a standard pistol cartridge into the smooth bore barrel. This results in the weapon having a rifled bore so that it no longer fits within the statutory definition.
C. DESTRUCTIVE DEVICES
The term “destructive device” is defined to include explosive, incendiary or poison gas bombs, grenades, rockets having a propellant charge of more than four ounces, missiles having an explosive or incendiary charge of more than one-quarter ounce or mines. The term also includes weapons that expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which are more than one-half inch in diameter.
The clearest method of removing explosive and incendiary bombs, mines and grenades from the statute is to detonate them. This results in complete destruction of the device so it is no longer subject to NFA requirements. However, removal of a component of a destructive device may also result in the item no longer having the characteristics of a bomb, mine, grenade, etc. For example, ATF has advised industry members that removing the fuse or fuze from a grenade results in removal of the grenade from the destructive device classification. Industry members who wish to obtain more information about the removal of components so that destructive devices are no longer subject to the NFA should contact ATF for guidance.
Large caliber destructive devices that are not also machineguns may be removed from the NFA by removing and disposing of the barrel. The barrel must either be destroyed or transferred to a person who is not the registrant to effectively remove the device from the statute.
ATF has also recognized an alternative process to equal destruction of the barrel. This involves the following required actions:
Cut a hole in the barrel equal to the diameter of the bore on a 90-degree angle to the axis of the bore. The hole must be cut in the side of the barrel in the high pressure (chamber) area.
Weld the barrel, as altered in step (1) above to the weapon’s receiver.
Weld an obstruction into the barrel to prevent the introduction of a round of ammunition.
If all the above steps are taken, ATF considers the destructive device barrel to be destroyed so that the device is no longer subject to the NFA.
The NFA’s definition of “firearm” includes any silencer, as defined in the GCA, 18 U.S.C. 921(a)(24). The GCA defines “firearm silencer” and “firearm muffler” to include “any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or silencer muffler, and any part intended only for use in such assembly or fabrication.” Accordingly, to remove a silencer from the NFA, every baffle, wipe, and other component must be melted, crushed or otherwise destroyed. ATF advises in the National Firearms Act Handbook, ATF e-Publication 5320.8. section 2.5.1 (available on ATF’s website at www.atf.gov) that a silencer may be destroyed by completely severing each component by means of a cutting torch that has a tip of sufficient size to displace at least one-quarter inch of material at each cut location. Outer tubes of a silencer may be destroyed by crushing them flat in lieu of cutting with a torch.
The term “machinegun” is defined in the NFA as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U.S.C. 5845(b). The term includes the frame or receiver of a machinegun, as well as any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, as well as any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
Accordingly, to remove the machinegun from the NFA and the provisions of 18 U.S.C. § 922(o), the frame or receiver must be completely destroyed. Crushing or melting the frame or receiver in a manner that renders the component totally unusable is acceptable. ATF’s Firearms and Ammunition Technology Division (FATD) advises the preferred method for destroying a machinegun receiver is to completely sever the receiver in specified locations by means of a cutting torch that displaces at least one-quarter inch of material at each cut location. See National Firearms Act Handbook at 2.5.1. ATF also has published rulings with diagrams specifying the locations for torch cuts for specific machineguns, such as FN FAL-type, Heckler & Koch G3-type and Sten-type machineguns. ATF Rul. 2003-2, ATF Rul. 2003-3 and ATF Rul. 2003-4 are available on ATF’s website. FATD will provide FFLs with cutting diagrams for other models of machineguns on request.
If saw cutting, ATF advises a machinegun receiver may be properly destroyed if certain portions of the saw-cut receiver are removed and properly discarded. FATD requests industry members wishing to destroy machineguns by saw cutting contact FATD for guidance on proper methods of destruction.
It is important to emphasize that machinegun receivers not destroyed in accordance with ATF-approved methods and standards may remain subject to the NFA and the provisions of 18 U.S.C. § 922(o).
III. DOCUMENTING REMOVAL OF A FIREARM FROM THE NFA
Alteration or destruction is only the first step in the process of removing a firearm from the NFA. Creating a record of the removal is essential to protect the registrant from charges of an unreported loss or unlawful transfer, as well as record keeping violations. One way to document the alteration or destruction is with photographs showing the configuration prior to destruction, the destruction process and the post-destruction scraps. The photographs should include the markings of the make, model, serial number and caliber or gauge. The photographs should be printed, and the person who took the photographs should legibly mark on the back of the photographs the date they were taken and the place where they were taken. The photographer should also sign the back of the photographs and indicate his or her job title within the organization.
The registrant should also create a certificate of destruction. The certificate should state that the person signing certifies that the following firearm(s) was destroyed on a specified date in accordance with guidelines issued by ATF. The certificate should include the make, model, serial number and caliber or gauge of the firearm, and it should be signed and dated by the person certifying destruction and the person’s title. The certificate should include a witness signature as well. The photographs taken during the destruction process should be attached to the certificate and all should be retained as part of the FFL’s permanent records. If the registrant is not a FFL, the record of destruction should be retained in the event of questions from ATF investigators.
The last step in documenting the removal of a firearm from the NFA is to make a disposition entry in the FFL’s acquisition and disposition records, required under the GCA. The entry would state “destruction” or “removal from the NFA,” depending on whether the firearm was completely destroyed or was altered, as in the case of a short-barrel rifle that has had a barrel extension added.
If the firearm was altered and continues to be subject to the requirements of the GCA, then the requirements of ATF Rul. 2016-3 apply. This ruling addresses the record keeping requirements when a licensed manufacturer makes changes to the model, type, caliber, size and/or gauge of a frame, receiver or assembly of a firearm. The ruling requires that the firearm remain logged into the acquisition record until the alterations to the firearm are complete. At the point the alterations are complete, the licensed manufacturer must then log the firearm out of the acquisition and disposition record as a disposition to itself using its own licensed name and license number. The date of the disposition is the date of the alteration of the firearm. Then the licensed manufacturer must make a new entry in the acquisition record to show the new firearm information on a separate line of the record. The manufacturer would record the acquisition as an acquisition from itself on the same date as the date of the alteration of the firearm.
The procedures of ATF Rul. 2016-3 would similarly apply to alterations to short-barrel shotguns and destructive devices that are removed from the NFA and then reassembled. Of course, remanufacture of a destructive device or other “firearm” as defined in the NFA must be reported on a Form 2, in the case of a qualified FFL, or authorized in advance through submission of Form 1, in the case of a non-licensee.
The final step is to notify ATF that a registered NFA firearm has been removed from the controls of the statute. This can be accomplished by sending a letter to the Chief of the National Firearms Act Branch, 244 Needy Road, Martinsburg, WV, 25405. The letter may also be sent via e-mail to NFA@atf.gov. The letter should include a copy of the registration form for the firearm or firearms in question and should advise ATF that the firearm has been removed from the NFA. The letter should describe the steps taken to remove the firearms from the NFA and the date of destruction or alteration. The letter should request that the Chief of the NFA Branch annotate the National Firearms Registration and Transfer Record to indicate the firearm has been removed from the statute.
There are a number of reasons for which FFLs and other persons may wish to remove firearms from the controls of the NFA. If firearms are outside the United States, for example, removal may make it possible to lawfully import the firearms into the United States as part of a personal collection or for commercial sale. Licensed manufacturers may wish to remove registered firearms from the NFA if the firearms do not meet manufacturing standards for commercial sale. Whatever the reason, there are recognized procedures for removal and documenting the removal that should be followed to avoid inadvertent violations of the law and problems during ATF compliance inspections.
The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.
ABOUT THE AUTHORS
Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, D.C. (www.reevesdola.com). For more than 10 years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2011, Johanna also has served as Executive Director for the FireArms Import/Export Roundtable (F.A.I.R.) Trade Group (http://fairtradegroup.org). In 2016, Johanna was appointed by the U.S. Department of State, Bureau of Political-Military Affairs to serve on the 2016-18 Defense Trade Advisory Group (DTAG).
Teresa Ficaretta is an expert on ATF regulations under the Gun Control Act, the National Firearms Act, the Arms Export Control Act and Federal explosives laws. Before joining Reeves & Dola in 2013, Teresa served as legal counsel to ATF for 26 years, followed by two years as Deputy Assistant Director in Enforcement Programs and Services. Teresa was elected partner to Reeves & Dola in January 2016.
Johanna and Teresa can be reached at 202-683-4200.
|This article first appeared in Small Arms Review V21N7 (September 2017)|