Legally Armed: V19N6

By Teresa G. Ficaretta, Esq. & Johanna Reeves, Esq.

Domestic Assembly of Nonsporting Rifles and Shotguns from Imported Firearms-Avoid Violations of 18 U.S.C. § 922(r)

Licensed importers and licensed manufacturers are generally aware of the provisions of the Gun Control Act of 1968 that make it a crime to assemble a nonsporting semiautomatic rifle or nonsporting shotgun from a specified number of imported parts. However, this little-known provision of Federal law may be violated by any person who adds domestic parts to an imported firearm. This article provides an overview of 18 U.S.C. § 922(r), discusses its history and purpose, and gives the reader information on avoiding unintentional violations of the law.

The Statute

Section 922(r), Title 18, United States Code, makes it unlawful for any person to assemble from imported parts any semiautomatic rifle or any shotgun which is identical to any rifle or shotgun prohibited from importation under the “sporting purposes” test of section 925(d)(3) of the Gun Control Act (GCA). The statute provides exceptions for rifles or shotguns assembled for sale or distribution by a licensed manufacturer to a Federal, State, or local government agency. An exception is also provided for purposes of testing or experimentation authorized by the Attorney General.

The purpose of section 922(r) is to prevent persons from circumventing the import restrictions of the GCA by importing unassembled rifles and shotguns and assembling them into nonsporting configuration in the United States. ATF regulations issued under this provision of the GCA are found in 27 C.F.R. § 478.39.

Willful violations of section 922(r) are punishable by a fine of up to $250,000, imprisonment for a term of no more than 5 years, or both. Such violations may also result in seizure and forfeiture of firearms involved in the violations and in license revocation.

Legislative History

Section 922(r) was added to the GCA by the Comprehensive Crime Control Act of 1990, Pub. L. 101-647, November 29, 1990. The principal purpose of the provision was to avoid circumvention of the import provisions of the GCA by importing firearms parts and assembling them in the U.S. using domestically manufactured frames or receivers. Readers may recall that the ban on importation of semiautomatic nonsporting rifles was imposed by the Bush administration in 1989. The administration apparently believed importers were avoiding the ban by bringing in all the parts for nonsporting rifles and adding them to domestically-made receivers, actions that were perfectly legal before Congress enacted section 922(r).

The “Sporting Purposes” Test for Rifles and Shotguns

Before we discuss the regulatory provisions, let’s focus on the “sporting purposes” test of the GCA. In SAR Vol. 19, No. 4, The Sporting Purposes Test for Imported Firearms, we provided readers with a thorough discussion of the history of the sporting purposes test and how the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) interprets the test as to handguns, rifles, and shotguns. We will not repeat that information in this article. However, so that readers understand how section 922(r) incorporates the “sporting purposes” test for rifles and shotguns, we are summarizing ATF’s criteria for these firearms below:

Nonsporting Rifle Criteria

The rifle is a semiautomatic version of a machinegun;

The rifle is chambered to accept a centerfire cartridge case having a length of 2.25 inches or less; and

The rifle has one or more of the following military features:

• Ability to accept a detachable magazine with a capacity of more than 10 rounds
• Folding or telescoping stock
• Separate pistol grip
• Ability to accept a bayonet
• Flash suppressor
• Bipod
• Grenade launcher
• Night sights

Nonsporting Shotgun Criteria

Any one of the following features render a shotgun nonsporting:

• Folding, telescoping, or collapsible stock
• Bayonet lug
• Flash suppressor
• Magazine over 5 rounds or a drum magazine
• Grenade launcher mount
• Light enhancing device
• Excessive weight (greater than 10 pounds for 12-gauge or smaller)
• Excessive bulk (greater than 3 inches in width and/or greater than 4 inches in depth)

Regulations Implementing 18 U.S.C. § 922(r)

The regulations in 27 C.F.R. § 478.39 implement the provisions of section 922(r), providing specific guidance on the particular parts and how many of those parts can be used to avoid the domestic assembly prohibitions. It is interesting to note that ATF published proposed regulations in 1991 (Notice No. 723, 56 FR 41105, August 19, 1991) that would have prohibited the domestic assembly of nonsporting semiautomatic rifles and nonsporting shotguns by using 2 or more of the 22 parts listed in the regulation. This very restrictive reading of the statute was condemned by members of Congress who sponsored the language of section 922(r), and ATF received over 3,000 written comments, most of them negative. A number of the commenters pointed out that the proposed rule would prohibit the legitimate use of foreign parts in domestically made firearms, a widespread practice in 1990, and one that Congress did not intend to disrupt.

ATF adopted the final rule (T.D. ATF-346, 58 FR 40587) on July 29, 1993 to prohibit domestic assembly from more than 10 of the 20 firearms components listed in the regulation. ATF noted that if a majority of the components are imported, the assembled weapon would be considered reasonably as a foreign weapon prohibited from importation. By identifying the major firearms components and addressing only the assembly of those firearms using a majority of foreign components, ATF reasoned the rule would preclude the assembly of foreign made firearms without interfering with the legitimate use of foreign parts by domestic manufacturers. ATF also revised the regulations to allow the replacement of damaged or defective parts on firearms lawfully imported into the United States or those lawfully assembled prior to November 30, 1990, the effective date of section 922(r).

Application of the Regulation to Manufacture of Rifles and Shotguns

As stated above, the regulations in 27 C.F.R. § 478.39 list 20 parts ATF believes to be “major components” of semiautomatic rifles and shotguns. In applying the regulation to a particular firearm, the first test is to determine whether the finished semiautomatic rifle or shotgun is nonsporting. If the rifle or shotgun to be assembled is sporting, then there is no cause of concern under 922(r). Conversely, if ATF would classify the semiautomatic rifle or shotgun as nonsporting, then the assembly must proceed in accordance with Section 478.39. The regulation establishes the rule that section 922(r) is violated only if the nonsporting semiautomatic rifle or nonsporting shotgun is assembled with more than 10 imported parts of the 20 parts listed in the regulation, as follows:

(1) Frames, receivers, receiver castings, forgings or stampings
(2) Barrels
(3) Barrel extensions
(4) Mounting blocks (trunnions)
(5) Muzzle attachments
(6) Bolts
(7) Bolt carriers
(8) Operating rods
(9) Gas pistons
(10) Trigger housings
(11) Triggers
(12) Hammers
(13) Sears
(14) Disconnectors
(15) Buttstocks
(16) Pistol grips
(17) Forearms, handguards
(18) Magazine bodies
(19) Followers
(20) Floorplates

If Federal firearms licensees are using any imported parts in the assembly of a nonsporting semiautomatic rifle or nonsporting shotgun, it would be a prudent best practice for the licensee to document which parts are imported and which are domestically made. This documentation, along with any invoices demonstrating the provenance of the parts, should be retained in the event an ATF inspection results in questions about compliance with section 922(r).

Meaning of the Word “Assemble”

Section 922(r) makes it unlawful for any person to assemble from imported parts any nonsporting semiautomatic rifle or nonsporting shotgun. The term is not defined in the statute or regulations, and ATF takes the position that assembly has its ordinary, everyday meaning. ATF has advised that “assembly” includes putting together a firearm from unassembled components, adding parts to a complete or partially complete firearm, and removing parts from a completed firearm and adding new parts. As an example, a manufacturer who adds a shoulder stock to a barreled action or a pistol would “assemble” the resulting rifle. “Assembly” would also occur when a folding stock, flash suppressor, bayonet, or night sights are added to a rifle. The term “assemble” would also apply to a situation where machining is necessary before a part is added to a firearm, such as when a magazine well is machined and a magazine is added to a rifle. Questions concerning particular manufacturing operations and whether they are “assembly” should be referred to ATF’s Firearms and Ammunition Technology Division.

Does Section 922(r) Apply to Short Barrel Rifles and Short Barrel Shotguns?

Yes. Section 922(r) applies to the domestic assembly of short barrel rifles and short barrel shotguns if they are also nonsporting under 18 U.S.C. § 925(d)(3).

Rifles having a barrel or barrels of less than 16 inches in length are regulated under the NFA. Shotguns having a barrel or barrels of less than 18 inches in length are also regulated under the NFA. Within the last year ATF advised a manufacturer that its attachment of a shoulder stock to an imported semiautomatic pistol would violate section 922(r) unless the manufacturer added enough domestically made parts to avoid the prohibitions set forth in the regulation. The basis for this advice was that the resulting short barrel rifle would also be nonsporting because it had a detachable magazine with a capacity of more than 10 rounds and a separate pistol grip. These are both nonsporting features identified in ATF’s 1998 rifle import study. Thus, in addition to complying with the registration requirements of the NFA, the manufacturer must switch out a number of the pistol’s component parts to ensure that no more than 10 of the parts listed in section 478.39 are imported. The same rationale would apply to a short barrel shotgun imported into the United States, then reconfigured so it had one or more of the features set forth in the 2012 shotgun study.

Just to clarify, it is not ATF’s position that all short barrel rifles and all short barrel shotguns are nonsporting and therefore subject to section 922(r). Rather, it is ATF’s position that if the short barrel shotgun or short barrel rifle has one or more nonsporting features, then it cannot be assembled with more than 10 of the imported parts listed in section 478.39.

Does Section 922(r) Apply to Pistols and Revolvers?

The plain language of the statute is limited to the assembly of semiautomatic rifles and shotguns. ATF has never applied the domestic assembly provisions of 18 U.S.C. § 922(r) to handguns. This means that importers of sporting handguns may lawfully change features to make the handgun nonsporting without violating section 922(r).

Enforcement of Section 922(r)

The authors have been unable to identify any reported decisions in criminal cases construing section 922(r). This does not mean, however, that the United States Attorneys have never indicted defendants for violating this provision, as many criminal cases are disposed of at the District Court level without being reported.

On the civil side, there is at least one civil license revocation case based on assembly of a nonsporting SKS rifle with a folding bayonet. In this case, Trader Vic’s Ltd. v. O’Neill, 169 F. Supp. 2d 957, 963-64 (N.D. Ind. 2001), ATF’s position that “assembly” includes
adding one part to a fully assembled rifle is clearly illustrated.

It is apparent there are challenges for ATF in enforcing section 922(r). In any criminal prosecution, the United States bears the burden of proving beyond a reasonable doubt that the defendant assembled a nonsporting semiautomatic rifle or nonsporting shotgun “from imported parts.” A violation of section 922(r) must be “willful,” which requires the United States to prove the defendant knew his conduct was unlawful, not that he or she was specifically aware of the particular requirement of the law that was violated (see, e.g., Bryan v. U.S., 524 U.S. 184 (1998)). Thus, to sustain its burden of proof, the government must prove: (1) the defendant assembled a nonsporting semiautomatic rifle or nonsporting shotgun; (2) the rifle or shotgun was assembled with more than 10 of the parts listed in 27 C.F.R. 478.39; (3) the 10 or more parts were imported; and (4) the defendant was aware his or conduct was unlawful. Parts, other than frames or receivers, generally are not marked with the country where the parts were manufactured. Absent an admission that the parts are imported or other evidence the parts are imported, e.g., invoices from abroad listing the imported parts, it will be difficult for the government to determine whether a violation of section 922(r) occurred, much less whether a particular assembler “willfully” committed that violation. It is no surprise there are no reported criminal cases for this provision of the GCA.

However, it is important for manufacturers and other assemblers to remember that the standard of proof for administrative/civil license revocation is lower than that required for criminal prosecution. Although the government must still establish the elements outlined above, the standard is only a preponderance of the evidence, which is lower than beyond a reasonable doubt (see Jim’s Pawn Shop, Inc. v. Carlton Bowers, No. 5:05-CV-524-H(3), E.D. N.C. (Sept. 16, 2008)). Licenses may be revoked under 18 U.S.C. § 923(d)(3) if the licensee has willfully violated any provision of the GCA or any rule or regulation issued thereunder. “Willfulness” in the context of license revocation means that the licensee knew of his legal obligations and purposefully disregarded or was plainly indifferent to the requirements (see Stein’s, Inc. v. Blumenthal, 649 F.2d 463 (7th Cir. 1980; Lewin v. Blumenthal, 590 F.2d 268 (8th Cir. 1979)). Generally technical or inadvertent violations of the law or regulations are not sufficient for license revocation, while evidence of repeated violations with knowledge of the law is sufficient. Consequently, warnings or violations cited by ATF Industry Operations Investigators would be sufficient evidence of willfulness to sustain
license revocation.

Manufacturers who utilize imported parts in their assembly of nonsporting rifles or shotguns would be wise to study 27 C.F.R. 478.39 and ensure that the firearms they assemble do not use more than 10 of the components listed in the regulations. As stated previously, records establishing the origin of the parts will answer any questions ATF may have about the lawful assembly of such firearms.

Finally, section 922(r) is an “any person” offense that can be violated by consumers. Nonlicensed persons who acquire imported semiautomatic rifles or shotguns and add parts to make the weapon nonsporting may violate section 922(r), depending on the number of parts used. Even though it may be more difficult for ATF to prove a willful violation on the part of a nonlicensee, consumers should avoid this violation and its significant penalties.

Conclusion

Manufacturers who import rifles or shotguns and modify them must be wary of adding domestically made parts to such firearms if the final result is a semiautomatic rifle or shotgun that would fail ATF’s sporting purposes test. Such manufacturers should ensure they use no more than 10 of the parts listed in the regulation to avoid violation of section 922(r). Likewise, manufacturers who use imported parts in manufacturing domestically-made firearms should ensure they abide by the restrictions of 922(r) and 27 C.F.R. § 478.39. The provisions of section 922(r) also apply to short barrel rifles and short barrel shotguns if they have nonsporting features and are assembled from imported parts. Questions concerning this provision of the GCA should be submitted to ATF’s Firearms and Ammunition Technology Division to avoid unintentional violations of the law.

(The information in this article is for informational purposes only and is not intended to be construed or used as legal advice.)

About the authors

Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (www.reevesdola.com). For more than ten 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.

Teresa Ficaretta is one of the country’s foremost experts 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. They can be reached at (202) 683-4200.