ATF Update on the Modi cation of Markings on Recon gured NFA Guns
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- Georgia Rogers
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1 ATF Update on the Modi cation of Markings on Recon gured NFA Guns 14 In my December 2010 column, I discussed the parameters in the Gun Control Act of 1968 (GCA) and the National Firearms Act of 1934 (NFA) governing when and how a manufacturer can modify the markings on a recon gured rearm. I advised that generally, the required markings placed on rearms should not be altered from their original state, because the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) relies on the information in these markings to track and monitor rearms in the United States. In the months following the publication of that column, I have received numerous inquiries as to what remedies are available for a licensee in possession of an NFA rearm with unlawfully modi ed markings. Speci cally, many individuals possess NFA weapons with a model number that has been modi ed to re ect a recon guration. This month s column will address what recourse and options an individual has in the event that the individual possesses such a rearm with improperly modi ed markings. Both the GCA and NFA require various identifying markings to be placed upon the rearms as a means of accounting for and tracing these rearms, if the need should arise. For instance, the NFA s implementing regulations require that NFA weapons be marked with the rearm s serial number, model, caliber, and the name and address of the U.S. manufacturer or importer. 27 C.F.R (a). In the event of a crime, such as the theft of a rearm or the use of a rearm in the commission of a felony, ATF uses the rearm s markings to obtain information about the rearm for use in the investigation of the crime. It is for this reason that the NFA regulations specify that the required markings must be engraved, cast, or stamped in a manner not susceptible of being readily obliterated, altered, or removed. Id. Clearly, the intent of the law is to preserve these markings so that they may be used for legitimate law enforcement purposes. While the importance of compliance with these marking requirements is likely common knowledge among the licensee community, it is worth reiterating that substantial penalties can result from violating federal rearms law, and speci cally those laws regarding required markings on rearms. As an example, section 5871 of the NFA makes the obliteration of any of the required markings a criminal offense, punishable by up to 10 years in prison and a $250,000 ne. These laws apply to even those marking changes made to re ect a recon guration of the rearm, which is why it is so vital to comply with these laws in all circumstances. As I noted in my December 2010 article, under the GCA, at 18 USC 922(k), it shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any rearm which has had the importer s or manufacturer s serial number removed, obliterated, or altered... While it is clear that this statute prohibits any alteration of the serial number, there is no speci c prohibition on the alteration of any other required markings, such as the model, caliber or gauge, manufacturer or importer name, city, and state, or country of origin. The NFA, however, makes it unlawful to obliterate, remove, change, or alter the serial number or other identi cation of a rearm required by this chapter. 18 U.S.C (emphasis added). As is evident from a comparison of these two statutes, there is substantially more freedom to alter the markings of a Title I rearm (a rearm regulated by the GCA) than a Title II rearm (one regulated by the NFA). The GCA allows marking modi cations for Title I rearms so long as the unique serial number remains intact. In contrast, the NFA requires the preservation of all markings on the weapon, including the model. For many years, however, it was a somewhat common industry practice, in cases in which an NFA rearm was recon gured into a different model, to modify the markings on the rearm to re-
2 ect the recon guration. Licensees followed this practice in an effort to identify rearms accurately after there had been an alteration to a rearm. Unfortunately, this practice was the result of widespread mistake and misunderstanding regarding the differences between the laws and regulations for markings on GCA and NFA rearms. To illustrate a typical situation in which this problem might arise, imagine the HK33 - a standard fully automatic 5.56mm assault ri e. The HK33 is a relatively common machine gun developed and manufactured by Heckler & Koch beginning in the 1960s. With the proper conversion kit, the HK33 can be recon- gured as an HK53, which is a similar rearm with a shorter barrel, a telescopic shoulder stock, and a forearm resembling an MP5 submachine gun. This type of conversion would not constitute a remanufacture, because one may legitimately recon gure a machine gun to another model within the same class of rearm without creating a new rearm. Since it is not a remanufacture, stamping new markings on the rearm is not appropriate. However, a licensee who performed such a recon guration might legitimately be concerned that the old markings for the HK33 no longer accurately identify the rearm, which is now an HK53. A natural inclination might be to alter the existing markings applied at the time of manufacture of the NFA weapon to correctly identify the rearm as an HK53, but in fact, this action is prohibited. Even though a new and corrective marking of HK53 would accurately re ect the current state of the rearm, such an alteration would be illegal under section 5861 of the NFA. This rule has been a source of signi cant confusion in the industry, leading to the improper alteration of markings NFA rearms that are being recon gured. The law plainly states that it is illegal to alter the serial number or other required marking on an NFA rearm, and it is illegal to receive or possess such a rearm (18 U.S.C. 5861(g), (h)). The markings this article addresses are those other than the serial number. Neither the NFA nor its implementing regulations offer any guidance on what remediation efforts may be taken if an NFA rearm s original markings have been subsequently modi ed in violation of these statutes. This puts licensees or NFA owners in a dif cult position: it is illegal to possess Visit SAR on line at: 15
3 an NFA rearm that has modi ed markings, but the rearm s markings cannot be changed back to their original form without further violating the law against altering markings on an NFA rearm. Two possible solutions to this problem could be adopted that would help the licensee resolve the marking violation while serving ATF s law enforcement aim of using rearm markings to aid in tracing and investigations. The law could be interpreted either to (1) allow individuals in possession of rearms that have marking modi cations to apply for a marking variance, correcting the marking discrepancy in the ATF database and allowing for more accurate traces; or (2) require each rearm with improper marking modi cations to have its markings restored to their original state. The rst option, allowing individuals to submit variance requests, would provide ATF accurate marking information for these rearms and would likely be the most straightforward administrative approach. The second option, requiring each rearm with improper marking modi cations to have its markings restored to their original state, would also ensure that ATF has accurate marking Visit SAR on line at: 16
4 information for these rearms. However, this approach is less desirable than the rst option because of the dif culty in determining what the original markings were and in physically placing the new markings on the rearm. At rst glance, it appears that ATF has the power to adopt either of these solutions pursuant to 27 C.F.R , which authorize the use of alternate methods or procedures when ATF determines that such an alternate method is appropriate. In order for ATF to authorize one of the proposed solutions above, ATF would need to nd that: (1) there is good cause to use the alternate procedure; (2) the alternate procedure is consistent with the purpose and effect of the procedures required by law; and (3) the alternate procedure will not be contrary to law and will not increase government costs or hinder the effective administration of the law. An argument could certainly be made that the alternate procedures proposed above would meet these variance requirements. First, there is likely good cause to offer an alternate procedure, such as the two options mentioned above, because there is currently no avenue for rearms 17
5 with altered markings to be brought into compliance with federal law. Second, the solutions discussed above are consistent with the intended effect of facilitating law enforcement efforts because both will aid in efforts to trace rearms, which is the apparent intent of the NFA marking requirement. Third, the proposed solutions are arguably not contrary to law, as no law stipulates that retroactive variances cannot be granted. Since the proposed procedures seem to satisfy the requirements for ATF to grant an alternate procedure, they appear to be viable solutions that ATF could consider. However, when my of ce proposed these two alternate procedures to ATF as a solution for clients in possession of NFA rearms with altered markings, ATF rejected, after careful consideration, both proposals, stating that both remediation alternatives are contrary to law and are thus not acceptable options under 27 CFR With this of- cial denial of these variance requests, it seems clear that ATF has determined as a matter of policy that it will not accept any remediation solution that has so far been proposed. Consequently, at present, there is no way for someone in possession of an NFA rearm with unlawfully Visit SAR on line at: 18
6 modi ed markings to bring the rearm into compliance with section 5861(g) the NFA, and ostensibly there is no way to continue possessing such a rearm without violating section 5861(h). So far, the only lawful apparent option is to arrange for a surrender of the machine gun to either ATF or local law enforcement. Of course, the conclusion that surrender may be the only option rearms owners have in this situation is, especially for the vast majority of owners who came into possession of these rearms in good faith, unacceptable. One remaining solution that, to my knowledge, has not yet been fully explored with ATF might be for ATF to grant a limited amnesty that would allow possessors of unlawfully marked rearms to modify the registration of their rearms with ATF to re ect the current markings. Such an amnesty would not be unprecedented; there is an amnesty provision in section 207 of the GCA (82 Stat. 1235) authorizing the Secretary of the Treasury (now the Attorney General) to grant amnesties for up to 90 days to permit the registration of previously unregistered NFA weapons without the imposition of criminal penalties. An 19
7 amnesty was granted under this authority in 1968, when the GCA was passed, in order to give NFA weapons owners time to adjust to the stricter requirements the NFA imposed after the GCA s enactment. The Attorney General has been reluctant to exercise this amnesty authority. A limited amnesty that only focuses on markings other than the serial number would be an effective way for ATF to allow the owners of mis-marked rearms to bring their rearms into full compliance with the NFA. This option should not be limited by the GCA s general machine gun ban, at 18 U.S.C 922(o), because allowing an adoption or correction of subsequent markings other than the serial number does not create a new post-86 machine gun. Additionally, 18 U.S.C 922(o) does not apply at all to the other NFA weapon categories. If ATF were to decide for pragmatic policy reasons a limited amnesty is desirable, it would provide an equitable solution for those in the licensee community who wish to fully cooperate with ATF in rectifying these mistaken modi cations. As discussed above, the penalties for violating the NFA can be extremely harsh. For this reason, any person or entity in possession of an NFA rearm with a modi ed model number should consult legal counsel to explore the best course of action. The lack of remediation options emphasizes the importance of lawfully marking rearms during both manufacture and recon guration. To ensure full compliance with marking requirements for NFA rearms, licensees should make sure that no changes are or have been made to the original markings on the rearm, even in the event of a signi cant recon guration. Moving forward, I will continue to work with ATF to achieve a resolution on this matter. It is unlikely that we have heard the last word from ATF on this subject, and I will keep you updated as changes occur. Mark Barnes is an attorney with over 30 years of experience. He began his career in public policy serving in both the legislative and executive branches of federal government. His rm, Mark Barnes and Associates, is located in Washington, D.C. and has been specializing in all aspects of federal rearms law since He can be contacted at MarkB17@aol.com. 20
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