Do you have to register for ITAR if you are only manufacturing AR-15 uppers?

Posted on February 5, 2017 by John Pierce

In my last post I answered the question of whether or not an FFL is required if one is only manufacturing and selling AR-15 uppers.

Almost immediately I was asked a follow-up question about whether or not a person who is only manufacturing uppers (and therefore not subject to the requirement of holding an FFL) would still need to register with ITAR.

For those of you unfamiliar with ITAR, I have a detailed article on the registration requirements of ITAR for those holding a manufacturing FFL.  However, here we are talking about manufacturing uppers without holding an FFL of any kind.

To evaluate this unique question, we start with the regulation which governs the registration requirements or the International Traffic in Arms Regulations (ITAR) which were promulgated to implement the provisions of the Arms Export Control Act of 1976 (AECA).  The relevant section (emphasis added) is as follows:

Any person who engages in the United States in the business of either manufacturing or exporting defense articles or furnishing defense services is required to register with the Directorate of Defense Trade Controls. For the purpose of this subchapter, engaging in the business of manufacturing or exporting defense articles or furnishing defense services requires only one occasion of manufacturing or exporting a defense article or furnishing a defense service. Manufacturers who do not engage in exporting must nevertheless register.

As for what constitutes ‘defense articles’, 22 CFR 121.1 contains a complete listing under what is known as The United States Munitions List (USML).  The relevant section is contained in Category I of the list in subsections g and h (with reference to subsection a):

(a) Nonautomatic and semi-automatic firearms to caliber .50 inclusive (12.7 mm).

…

(g) Barrels, cylinders, receivers (frames) or complete breech mechanisms for the articles in paragraphs (a) through (d) of this category.

(h) Components, parts, accessories and attachments for the articles in paragraphs (a) through (g) of this category.

The short answer is that, despite not requiring an FFL, those seeking to manufacture uppers for the AR-15 platform are required to register for ITAR and pay the registration fee.

So … how bad is this fee?  It’s pretty bad.  If you are not engaged in exporting then you would be considered a ‘Tier 1’ registrant.  Therefore you would only have to pay the lowest possible fee.

A set fee of $2,250 per year is required for new registrants or registrants for whom the Directorate of Defense Trade Controls has not reviewed, adjudicated or issued a response to any applications during a 12-month period ending 90 days prior to expiration of the current registration.

I understand that this registration requirement imposes a significant barrier to entry into the firearms industry.  However, until we see federal action on the issue I will continue to educate my clients on the ITAR requirements.

Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states.

Posted in AR-15, ATF, BATFE, Federal Law, ITAR, Manufacturing, Uppers | Comments Off on Do you have to register for ITAR if you are only manufacturing AR-15 uppers?

Do you need an FFL to manufacture and sell AR-15 uppers?

Posted on February 5, 2017 by John Pierce

I was recently asked whether an FFL is required to manufacture and sell AR-15 uppers.

The answer is ‘no‘ but I want to caution readers that this would not necessarily be the case if the upper in question was for a different firearm.

In the AR platform, the lower is the serialized item (the actual firearm), whereas uppers are considered merely accessories and are not serialized.  Therefore, manufacturing and selling only the upper would not require an FFL (Federal Firearms License) since you are not dealing with an item considered to be a ‘firearm’ or ammunition.

This analysis would not be the same on certain other platforms.  For example, in the FN-FAL and Bushmaster ACR designs (to name just a few) the upper is the serialized ‘firearm’ and therefore an FFL would be required to manufacture or sell uppers for those designs.

Disclaimer:  Please note that this analysis is specifically focused on whether an FFL is required.  Individual states may place additional restrictions or requirements upon the manufacture of firearms components.

Posted in AR-15, ATF, BATFE, Federal Law, FFL Issues, Manufacturing, Uppers | Comments Off on Do you need an FFL to manufacture and sell AR-15 uppers?

Can felons hunt with crossbows in Virginia?

Posted on January 12, 2017 by John Pierce

I have written before about the rampant confusion surrounding the issue of whether or not felons can possess, and hunt with, black powder firearms in Virginia.

But there is a separate question that comes up almost as often and that is whether or not felons can possess, and hunt with, crossbows.

I believe that part of the confusion is based upon the fact that crossbows were not allowed to be used for hunting by anyone in Virginia until 2005, except in the case of hunters “whose physical disabilities prevent[ed] them from hunting with conventional archery equipment.”

Because of this, many people seem to mentally separate crossbows from conventional bows and assume that they are regulated more like firearms (which are prohibited to felons whose gun rights have not been restored).  But is that correct?

As always, when we are discussing an issue of ‘firearms’ law, we have to examine both state and federal law.  So let’s start by looking at federal law.

Federal law, at 18 U.S.C. § 921(a)(3), defines a 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.

So … since crossbows use stored potential energy to propel an arrow rather than the action of an ‘explosive’ (or rapidly burning propellant), they are not prohibited to felons under federal law.

But we still have state law to consider.

I will start by noting that there are no statutes which specifically prohibit crossbows to felons in the Code of Virginia.  So we need to determine if they are swept into the state definiton of ‘firearms’.

In Virginia, the definition of ‘firearm’ is contained in a number of statues, including those governing when a background check needs to be performed (§ 18.2-308.2:2).  Under this code section, we see a definition of “firearm” that closely matches the federal definition.

“Firearm” means any handgun, shotgun, or rifle that will or is designed to or may readily be converted to expel single or multiple projectiles by action of an explosion of a combustible material.

Once again we find that crossbows do not meet this definition.  But we are not done yet. As always, we end our analysis by looking at case law.

After reviewing the holdings of the Virginia Supreme Court, Court of Appeals, and Circuit Courts, I am unable to find any case law which could even tangentially be read to imply that crossbows are considered ‘firearms’ under Virginia law or that they are denied to those convicted of a felony.

In summary, it appears that, in Virginia, there are no statutory bars to the lawful purchase or possession of crossbows by convicted felons.  This would include their use for lawful hunting.

NOTES:  The one caveat I must add is that, for those still on supervised probation, there may be conditions of probation which would change this analysis.

If you are a convicted felon who wishes to regain his or her right to possess firearms then I will be glad to discuss representing you in petitioning the court for restoration of your rights.

If you have any other questions feel free to contact me for a free consultation.

Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer is specific to Virginia.

Posted in Bows, Criminal Law, Crossbows, Federal Law, Felons, Gun Rights Restoration, Virginia Law | Comments Off on Can felons hunt with crossbows in Virginia?

You no longer need to print ATF Form 1’s and Form 4’s double-sided

Posted on January 1, 2017 by John Pierce

I received an email today from a client who had noticed that the latest downloadable versions of both the Form 1 and the Form 4 now have new instructions regarding the printing of the forms.

Prior versions of both forms (including the initial versions released for the implementation of 41F) required that the forms be printed double-sided at the risk of disapproval of the application.

The specific instruction on the old versions of both forms stated:

“Photocopies or Computer Generated Versions.   After downloading or copying and printing this form from the ATF website, ensure that the front and back are on the same sheet of paper. The NFA Branch will not approve the application if the front and back are on separate sheets of paper.”

The new version specifically disavows this requirement.  The new instruction states:

“Photocopies or Computer Generated Versions.  The form may be copied or downloaded (for example, from the ATF website (www.atf.gov)). The form does not have to be printed front to back.”

My guides to completing both forms have been updated accordingly.

Posted in 41F, ATF, BATFE, Form 1, Form 4, NFA Transfers | Comments Off on You no longer need to print ATF Form 1’s and Form 4’s double-sided

Understanding the Virginia ban on ‘street sweeper’ shotguns

Posted on November 23, 2016 by John Pierce

saiga_drum_magA question that arises quite frequently concerns the interpretation of the ‘like kind‘ language in the Virginia ban on Striker 12 Street Sweeper shotguns.

With the popularity of semi-auto shotguns such as the Saiga and Vepr 12, these questions are understandable.

Today I was asked this question yet again by a long-time client and I thought the answer might be of interest to others.

His questions could be paraphrased as follows:

In a Saiga or Vepr semi-auto 12 gauge shotgun with a folding stock:

  1. Is it legal to use any box magazine regardless of capacity?
  2. Is a 10 round drum magazine allowable?
  3. What about a 20 round drum magazine?  Since the statute specifically requires a 12 round magazine wouldn’t a 20 be acceptable?

Let’s start by looking at the applicable statute which is § 18.2-308.8 of the Code of Virginia.  It reads as follows:

“It shall be unlawful for any person to import, sell, possess or transfer the following firearms: the Striker 12, commonly called a “streetsweeper,” or any semi-automatic folding stock shotgun of like kind with a spring tension drum magazine capable of holding twelve shotgun shells. A violation of this section shall be punishable as a Class 6 felony.”

Breaking the prohibition down, we see that the ‘like kind‘ language requires that, in order to be prohibited, a firearm must be:

  • A semi-auto …
  • shotgun …
  • with a folding stock …
  • with a spring tension drum magazine …
  • that is capable of holding 12 shotgun shells

Now that we have broken down the requirements, let’s answer the 3 questions above.

  1.  Is it legal to use any box magazine regardless of capacity?
    1. “Yes.  In order to fall under the prohibition, a firearm must have a spring tension drum magazine.  A box magazine would fall outside the prohibition.”
  2. Is a 10 round drum magazine allowable?
    1. “Yes.  A 10 round drum magazine is not ‘capable of holding 12 shotgun shells’ and therefore that configuration would fall outside the prohibition.”
  3. What about a 20 round drum magazine?  Since the statute specifically requires a 12 round magazine wouldn’t a 20 be acceptable?
    1. “No!  The statute does not require that the magazine be exactly 12 rounds, only that it be ‘capable of holding twelve shotgun shells’, which a 20 round drum certainly is capable of.  Anyone who interprets this statute to only prohibit drum magazines which hold exactly 12 rounds subject themselves to a significant risk of prosecution and conviction!”

I hope this clarifies the issue somewhat.  The good news is that one can take either of these shotguns (or any other semi-auto shotgun capable of holding a drum magazine) completely out of the purview of this statute by removing the folding stock and replacing it with a fixed stock.

NOTE:  This analysis governs ‘like kind‘ shotguns that are not NFA items.  As I explained in this article, the Striker 12 Street Sweeper itself is now classified as an NFA item.

Posted in Street Sweeper, Virginia Law | Comments Off on Understanding the Virginia ban on ‘street sweeper’ shotguns