Industry News: ATF Issues Rule on Marking Requirements
By Robert M. Hausman

The Bureau of ATF has issued a rule (ATF Rul. 2009-5) stating that ancillary licensed manufacturers, who perform a manufacturing process on a firearm already marked with a serial number, need not place additional identifying information on a firearm provided certain conditions are met.

ATF’s issuance of the rule clears up a great deal of confusion on the part of manufacturers concerning the ATF requirement that each manufacturer performing a manufacturing process on a firearm, including a frame or receiver, place their identifying markings on each firearm.

At the ATF Annual Importers Conference held last August, importers present raised the issue with Kenneth E. Melson, ATF’s Acting Director, who indicated that a ruling was forthcoming.

Many licensed manufacturers contract with other licensed manufacturers to perform various steps in the manufacturing process on firearms that already have a serial number and other required marking. The manufacturers performing a manufacturing process for another manufacturer often ask ATF for approval not to place their identification marks on the firearm. ATF has approved many of these “non-marking variance” requests provided certain conditions were met.

ATF says it recognizes that multiple identification markings on a firearm may be confusing to law enforcement and potentially can hinder effective tracing of firearms. Thus, ATF has ruled licensed manufacturers who perform a manufacturing process on a firearm for, or on behalf of, another licensed manufacturer need not place their serial numbers and other identification marking on the firearm provided the following conditions are met:

  1. The manufacturer is receiving the firearms, including frames or receivers, from another manufacturer.
  2. The manufacturer is performing a manufacturing process on the firearms as directed by another manufacturer before distributing those firearms to another manufacturer or into the wholesale or retail market.
  3. All manufacturers involved in the manufacturing process possess a valid manufacturer’s FFL and are performing only the manufacturing processes authorized under that license.
  4. The firearms, including frames and receivers, are already properly marked with a serial number and all other required identifying markings. (See 27 CFR 478.92(a) and 479.102(a)).
  5. Prior to engaging in the manufacturing process, the manufacturer desiring not to mark must submit to ATF the following information:
    1. The manufacturer’s name, address, and license number, and the name, address, and license number of the manufacturer for which the manufacturing process is being performed;
    2. A copy of the license held by each manufacturer;
    3. A description of the type of manufacturing process to be performed by the manufacturer desiring not to mark;
    4. The model(s), if assigned, of the firearms subject to the manufacturing process described;
    5. The serial numbers of the firearms in sequential order;
    6. The calibers or gauges of the firearms; and
    7. Any other information concerning the firearms manufacturer(s) or manufacturing process that ATF may require.
  6. The manufacturer desiring not to mark must maintain copies of its submission to ATF of the information required by this ruling with its permanent records of manufacture and should keep proof of its submission, such as a certified mail receipt. The manufacturer must allow ATF representatives to inspect such documents upon request at any time during business hours without a warrant.
  7. All manufacturers involved in the manufacturing process must maintain all records required by federal law and regulation.

Once the manufacturer has submitted the necessary documentation to ATF pursuant to this ruling, and provided the manufacturer has complied with all other conditions set forth in this ruling, no “non-marking variance” approval from ATF is required, and the manufacturer may engage in the manufacturing process for, or on behalf of, another licensed manufacturer without placing its identifying markings on the firearms.

Additionally, licensees manufacturing firearms under the NFA and 27 CFR Part 479 should note this ruling only applies to the relevant marking requirements for those firearms. Manufacturers still must abide by all other provisions relating to the manufacture, transfer, and possession of NFA firearms.

The ruling was approved on November 9, 2009 by Kenneth E. Melson, ATF Acting Director.

U.S. Changes Course on Arms Trade Treaty

The United States has changed its stance on a legally binding arms trade treaty long-sought by the United Nations that would tighten regulation of, and set international standards for the import, export and transfer of small arms and ammunition.

The decision, announced in a statement released by the U.S. State Dept., overturns the policy of the Bush Administration which had opposed the treaty, saying individual nations should be able to impose their own controls.

Secretary of State Hillary Clinton said the U.S. would support the talks on the treaty as long as the negotiating forum, the Conference on the Arms Trade Treaty, “operates under the rules of consensus decision-making. Consensus is needed to ensure the widest possible support for the treaty and to avoid loopholes in the treaty that can be exploited by those wishing to export arms irresponsibly.”

However, some groups opposed the U.S. stance. Amnesty International and Oxfam International released a statement calling on governments to reject the U.S. stance that would allow any single nation the power to veto the treaty, saying this could hold the process hostage during negotiations.

The proposed treaty in its present form would allow nations to remain in charge of their arms export controls but nations would be legally obligated to assess each export against criteria agreed under the treaty. Governments would have to authorize transfers in writing and in advance.

A resolution before the U.N. General Assembly calls for preparatory meetings in 2010 and 2011 for a conference to negotiate a treaty in 2012.

In one of his first public appearance after being sworn in as Undersecretary of State for arms control and international security affairs, John Bolton in 2001 delivered the opening statement for the U.S. at the U.N. arms conference and shocked many of the delegates present. His message made it clear that the U.S. would not be a party to any international effort that directly or indirectly infringed on Americans’ fundamental right to keep and bear arms.

As former Georgia Congressman Bob Barr points out in a recent article in the Atlanta Journal Constitution, “Over the next five years, in meeting after meeting, the U.S. was true to the words Bolton delivered in 2001. Refusing to bow to intense pressure from many of our ‘allies,’ including most notably the U.K., the U.S. opposed and even vetoed numerous efforts to afford the U.N. any legally-binding power to regulate the ‘international’ trafficking in firearms. The Bush Administration realized that doing so would tie U.S. policy makers’ hands in supporting certain small arms transfers in our own national security interests.

“Moreover, and more relevant for Second Amendment purposes, a legally-binding instrument purporting to regulate the illicit international transfers of firearms, would necessarily touch domestic activities. For example, in order to know and regulate international transfers, the U.N. folks would have to know what firearms were being manufactured, stocked, and purported to be transferred within each country.

“The playing field now has changed dramatically,” Barr continued. “We have a president, a secretary of state, and an undersecretary philosophically in sync with the U.N. and its member nations who have been clamoring for the U.S. to join the march to an arms trade treaty. In her statement of Oct. 14th announcing Washington’s reversal on this issue, Clinton made not even passing or indirect reference to the Constitution, much less the Second Amendment; a position so clearly and forcefully employed by Bolton when defending our interests against the international ‘community.’

“The irony in all this is that the U.S. maintains the most rigorous and consistent legal control on the export and import of firearms of any nation. If those nations pushing for an international arms trade treaty were sincerely concerned with tightening such controls internationally, all they would have to do would be to adopt regulations and laws as we have in the U.S. already. But that’s not their true agenda.

“The real agenda of these folks at the U.N., and in London, Tokyo, Brasilia, and the other capitals around the world of nations pushing the U.S. to ‘come on board,’ is not international regulation, but limiting the freedom we enjoy within the United States to keep and bear arms,” Barr concluded.

Canadian Gun Registry May Be On Way Out

The long embattled rifle and shotgun registration system in Canada appears to be on its way out.

Canadian newspapers are reporting that both proponents and opponents believe that the Conservative political party (which has been pushing the registry’s end) now has enough votes in the House of Commons to give parliamentary approval in principle to a bill to kill the registry.

A vote was taken in early November on the second reading of the bill in which a majority of representatives voted to give approval in principle to the bill to end the registry. While the bill to end the registry is still subject to more study and possible amendment, both sides of the debate believe the legislation will ultimately reach the Senate for a final decision.

In a surprising softening of Liberal policy, party leader Michael Ignatieff made an offer to introduce legislation to decriminalize penalties for violating requirements of the long gun registry, in an effort to save the gun registration program.

The debate over the registry has pitted supporters, mainly city residents in eastern Canada and police, against rural gun owners, mainly in western Canada.

The gun registry has incurred enormous costs, way over its projected budget since its implementation. The Royal Canadian Mounted Police (RCMP), which has been administering the program since 2006, recently published its annual performance report which showed registry operations have been streamlined.

The RCMP report indicated planned spending for the 2008-2009 fiscal year on the gun registry alone was $13.6 million, but actual spending was just $8.4 million - 38% less than planned.

PA Latest to See Bill Opting Out of Federal Regs

Pennsylvania State Representative Sam Rohrer has introduced the “Firearms Freedom Act” (HB1988) to exempt firearms and ammunition made in that state from federal law. The bill has already gained 48 co-sponsors and is similar to bills recently enacted into law in both Montana and Tennessee.

Rohrer’s bill relies on the 10th Amendment to the U.S. Constitution’s restriction on the power of the federal government which reads “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people” to advance the view that Congress has not expressly preempted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, accessories, and ammunition.

The effect of the laws already passed in Montana and Tennessee and that proposed by Rohrer, represent a powerful challenge to the supremacy of the federal government which has relied on the Constitution’s Commerce Clause to derive much of its power.

In a letter to Pennsylvania House members, Rohrer wrote: “Under the current, expansive interpretation of the Interstate Commerce Clause in Article I, Section 8 of the U.S. Constitution, which reads ‘The Congress shall have power: ...To regulate commerce with foreign nations, and among the several States, and with the Indian tribes’, “it is permissible for the federal government to regulate the sales of goods that are manufactured and sold exclusively within a state’s borders. Effectively, the federal courts hold that if a product might possibly find its way into streams of interstate commerce, federal laws to regulate that product are appropriate. The product need not actually be sold between states.

“In 1942, the U.S. Supreme Court ruled against a farmer who was fined by the federal government for growing too much wheat. Effectively, the argument in Wickard v. Filburn was that the wheat he grew and consumed himself would lead to decreased wheat sales in other states, so it fell under federal jurisdiction because of the interstate commerce clause.

“As recently as 2005,” Rohrer continued, referring to a case involving medical marijuana, “in Gonzales v. Raich, the Supreme Court cited Wickard as standing for the proposition that ‘Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for interstate sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”


In explaining his strategy, Rohrer disclosed, “According to the Supreme Court, wheat (in Wickard) and medical marijuana (in Raich) are completely indistinguishable from such products made and sold in interstate commerce, so federal regulation is appropriate. Under my bill, the policy of this Commonwealth would be that firearms and firearm accessories manufactured and exclusively sold in the Commonwealth of Pennsylvania, carrying the brand “Made in Pennsylvania” (all clear indicators of intrastate commerce), would be subject only to state law,” Rohrer concluded.

The principle behind such legislation is nullification, which has a long history in the American tradition, points out the Tenth Amendment Center, an organization advocating for Tenth Amendment rights. When a state “nullifies” a federal law, it is proclaiming that the law is void and inoperative within the boundaries of that state. There is increased activity in this arena lately.

In addition to the passage of the aforementioned bills in Montana and Tennessee, a proposed state constitutional amendment to effectively ban national health care will go to a vote in Arizona in 2010, and up to 10 states may consider similar amendment proposals. Some thirteen states now have some form of medical marijuana laws in direct contravention to federal laws prohibiting all forms of marijuana use.

While advocates and legal theorists concede that a 10th Amendment federal court battle has a slim chance of success, they point to the successful effective nullification of the Real ID Act (which requires standardization of drivers licenses and mandates other federal requirements for state-issued IDs but the implementation of said legislation has been resisted by many states) as a blueprint to resist federal laws they see as outside the scope of the Constitution. In the past two years, nearly two dozen state legislatures have passed resolutions and laws refusing to implement the 2005 Real ID Act.

Gary Marbut, author of the Montana Firearms Freedom Act, said during an interview with the Tenth Amendment Center: “We’re not depending on permission from federal judges to be able to effectuate our state-made gun bills. And, we’re working on other strategies to wrest essential and effective power from the federal government and put it where it belongs.”

It should be noted that after Montana and Tennessee passed their Firearms Freedom bills, the Bureau of ATF sent letters to licensed dealers in those states warning them that they still must follow all federal laws in the acquisition and sale of firearms.

FNH USA’s 2010 New Products

“Our goal for 2010 is to perfect and enhance the strong products we have in our firearms line and roll out our new line of handguns,” notes Ken Pfau, VP Law Enforcement & Commercial Sales at FNH USA.

In the handgun segment, the new FNX 9 and FNX 40 hammer pistols feature ergonomic polymer frames with a low bore axis for flat shooting and less felt recoil. Other features are deep checkered grip panels with four interchangeable backstrap inserts. The profiled stainless steel slide has cocking serrations front and rear, a 4-inch hammer forged stainless barrel, both a decocker and a manual safety, and fully ambidextrous operating controls.

The new FNP-45 Tactical, originally developed for the U.S. Joint Combat Pistol Program, has several unique features. The 5.3-inch stainless steel barrel has a threaded muzzle to accept a sound suppressor or compensator. The stainless steel slide is fitted with high-profile combat night sights and includes two mounting bases to accept an optional red dot electronic sight. Each pistol comes packaged with three 15-round magazines and an Eagle tactical soft case.

The innovative Five-SeveN pistol now comes with the option of adjustable target sights or fixed three-dot sights and is available in olive drab green, matte black or flat dark earth finishes. Its low-recoil 5.7x28mm cartridge, FNH USA notes, was recently approved by the NRA Law Enforcement Activities Division for use in its Tactical Police Competition - and has a textured, ergonomic polymer frame with checkered grip panels. The polymer slide cover reduces weight and the operating controls are placed for easy access with a reversible magazine release and ambidextrous manual safety levers. The barrel is hammer-forged and chrome lined.

In the long gun arena, the SCAR 16S, the semiautomatic version of the U.S. Special Operations Command’s newest service rifle - is now available in matte black with all of the same features as the flat dark earth model and can be purchased with 10- or 30-round magazines.

The highly-anticipated SCAR 17S will now be available for civilian purchase. It is chambered in 7.62x51mm NATO (.308 Win.) and slightly heavier than the SCAR 16S. Both SCARs have fully ambidextrous operating controls, a free-floating, cold hammer-forged Mil-Spec barrel with hard-chromed bore; a receiver-integrated Mil-Std 1913 optical rail plus three accessory rails for mounting other optics. The side-folding polymer stock is fully adjustable for comb height and has six settings for length of pull. The SCAR also features a tactically advantageous reciprocating charging handle for quick ammo and magazine failure response.

The FNAR is now available with 16-inch cold hammer forged Mil-Spec fluted barrel with a hard-chromed bore and target crown barrel. This semi-auto has an ambidextrous magazine release button that drops the detachable 20-, 10- or 5-round steel box magazine. A one-piece receiver mounted Mil-Std 1913 optical rail comes standard for unlimited optics choices and the rifle also features three rails on the stock’s fore-end for mounting tactical lights or lasers.

There are also several new accessories. The first is a shooter’s mat: olive drab in color, it has pockets for shooting supplies. There are also two new custom formed carry cases for the PS90 and FS2000 with foam cut-out sections and an external pocket for magazines and accessories. The new FS2000 tactical foregrip can replace the standard foregrip with a unit featuring a tri-rail Mil-Std 1913 forend for mounting optics and other accessories. FNH-USA is the sales/marketing arm of FN Herstal S.A. Belgium.

HK Suit v. GSG Settled - No More Guns in Original Configuration to be Imported

The suit filed by Heckler & Koch, Inc. against German Sports Guns GmbH and its U.S. distributor, American Tactical Imports, Inc., has been settled, ATI reports.

Terms of the settlement have not been disclosed. A dismissal of the litigation and of all of the party’s claims against each other is expected to be filed in the near future.

As a result, production and importation of the original design GSG-5 firearm (which looks like an H&K MP5) ceased as of Oct. 8, 2009 with the signing of the agreement.

The remaining inventory now in the U.S. can be sold by ATI, its distributors and dealers. All sales of the GSG-5 by ATI must have concluded by January 31, 2010. ATI says it will continue to service each of the firearms it imports. The settlement announcement was made by Anthony DiChario, president and CEO of ATI.

Swiss Gunmaker to Build Plant in VA

TDI Inc., maker of the Kriss Super V .45 caliber submachine gun, is expanding its operations by moving to a new 9,000 square foot facility in Virginia Beach, VA and is planning to hire 35 employees.

TDI (Transformational Defense Industries, Inc.) is a subsidiary of Switzerland-based Gamma Research and Technologies Holding SA. The company currently employs 29 people in the U.S. The firm manufactures several full auto guns designed to substantially reduce recoil and muzzle climb.

The Virginia Beach Development Authority has given initial approval for a $45,000 incentive grant for building upgrades and employee training. “Virginia Beach is focused on growing its defense and high performance manufacturing industries,” Warren Harris, the city’s economic development director said. “This company fits that bill.”

The author publishes two of the small arms industry’s most widely read trade newsletters. The International Firearms Trade covers the world firearms scene, and The New Firearms Business covers the domestic market. Visit www.FirearmsGroup.com. He may be reached at: FirearmsB@aol.com.

This article first appeared in Small Arms Review V13N6 (March 2010)
and was posted online on April 27, 2012


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