Legally Armed: V20N3

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

Regulation of Firearm Silencers Under Federal Law

In the past few years there has been a significant surge in consumer interest in firearm mufflers or silencers. This is due, in part, to changes in state law that previously prohibited private consumer possession of silencers. Now that state laws in over 40 states allow consumers to lawfully acquire silencers, and in light of the advances in silencer design and manufacture, silencers are one of the fastest growing segments of the firearms industry. Given the increasing volume of silencers being manufactured, imported, and distributed in the United States, it is essential that federal firearms licensees (FFLs) have a thorough knowledge of the laws regulating these devices. This article provides an overview of federal law pertaining to the manufacture, importation, and distribution of firearm silencers.

I. Regulation under the Gun Control Act and National Firearms Act

Silencers are regulated as “firearms” under the Gun Control Act of 1968 (GCA) and the National Firearms Act (NFA). GCA regulation means that silencers are subject to the following requirements:

• Licensing requirements for persons “engaged in the business” of manufacturing, importing, or dealing in silencers;
• Marking requirements for silencers manufactured by licensed manufacturers and imported by licensed importers;
• Record keeping requirements for licensed manufacturers, licensed importers, and licensed dealers;
• Interstate controls, which generally prohibit the interstate transfer of firearms to non-licensees;
• Prohibited person provisions, making it unlawful to transfer firearms to felons and other prohibited persons; and
• Import provisions, which generally prohibit the importation of NFA firearms, including silencers, except for sale to federal, state, or local government agencies.

NFA firearms, including silencers, are subject to more stringent regulation, including the following:

• Manufacturers, importers, and dealers must register with ATF prior to engaging in a firearms business and must pay special (occupational) tax;
• All NFA firearms must be registered by their manufacturer, importer, or maker, and registration must be done within narrow timeframes established by regulation, i.e., no later than close of business the day following manufacture;
• Transfers of NFA firearms must be approved in advance by ATF, and transfers to non-licensees are subject to a $200 transfer tax per firearm; and
• NFA firearms may be imported only for the official use of federal, state, or local government agencies, for scientific research or testing, or for use as a model by a qualified FFL.

II. Statutory Definition of “Firearm Muffler or Silencer”

Now that we have outlined the basic controls under the GCA and NFA, the next question is what items are covered by the two statutes? Both statutes use the definition in the GCA, and the statutory definition has three distinct parts. First, the definition provides that the terms “firearm silencer” or “firearm muffler” mean any device for silencing, muffling, or diminishing the report of a portable firearm. The second part of the definition covers any combination of parts designed or redesigned and intended for use in assembling or fabricating a firearm silencer or firearm muffler. The third part of the definition applies to any single part intended only for use in assembling or fabricating a silencer. We will discuss each of the portions of the definition below.

(1) Complete silencer

This portion of the definition covers devices “for” silencing a firearm. Federal courts interpreting this portion of the definition have held that a device can be intended for silencing even if it was not originally designed as a firearm silencer. The best example of such a device is an automobile or lawnmower muffler redesigned or adapted for use as a silencer for a firearm. Automotive fuel filters have also been classified as firearm silencers if they have been modified for
use on a firearm.

However, courts have made it clear that devices that diminish the sound of a firearm may not be firearm silencers if the reduction in noise is not the primary purpose of the device. Examples of such devices are chokes, muzzle brakes, flash hiders, or compensators. A cautionary note is in order here, however, as the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the agency responsible for administering and enforcing the GCA and NFA, may or may not agree that a particular device is a choke, muzzle brake, flash hider, or compensator. ATF’s Firearms and Ammunition Technology Division may determine that the design features of a device make it a silencer despite the manufacturer’s intention to design and market the device as a muzzle brake or compensator. Later in this article we discuss ongoing litigation on this issue.

Federal courts have also held that a firearm silencer need not work well or at all in diminishing the report of a firearm to be classified as such. These decisions generally support ATF’s determination that the design features of a particular device determine whether it is a silencer subject to the GCA and NFA. One court in particular, the Fifth Circuit Court of Appeals, has held that even if the device is not in operating condition, the government need only prove that the device could readily have been put into operating condition.

ATF Rul. 2005-4, available on ATF’s website (www.atf.gov) addresses a complete device that the agency determined is not a silencer. The device is described in the ruling as a ported device attached to the barrel of a paintball gun. Because the paintball gun used compressed air to expel a projectile, it is not a “firearm” under the GCA. ATF cut the device from the barrel of the paintball gun, attached it to a .22 caliber pistol, and tested it to determine whether it would reduce the report of the pistol. Testing determined a significant sound reduction. Nonetheless, ATF determined that because the device was permanently affixed to an unregulated paintball gun, it is not a device for diminishing the report of a portable firearm. The ruling held that the device would be regulated as a silencer only if it is removed from the paintball gun and rendered usable on a firearm.

ATF Rul. 2005-4 was significant because prior to its issuance, ATF consistently held that devices permanently affixed to unregulated items, such as air guns, are silencers if they have design features consistent with silencers. ATF Rul. 2005-4 departs from the agency’s clear position of ignoring the item to which the purported silencer is attached and considering only the design features of the device. The ruling creates ambiguity as to devices permanently affixed to items that do not expel a projectile by the action of an explosive, and the authors are not aware of ATF extending the rationale of Rul. 2005-4 to other silencer-like devices permanently affixed to unregulated items. Nonetheless, the ruling creates ambiguity concerning ATF’s criteria in determining whether a device is or is not a “firearm silencer.”

(2) Combination of parts

The “combination of parts” portion of the definition was added to the statute in 1986 as part of the Firearms Owners Protection Act. Prior to 1986, the statutory definition lacked such a reference, which presented difficulties for the United States in prosecuting cases where silencers were unassembled. Government experts testified before Congress that the addition of combination of parts language would assist in extending the statute to cover silencer kits. See Stephen P. Halbroook, Firearms Law Deskbook at 730 (2015-2016 ed. 2015). The amendment made it easier to prosecute silencer kit cases, and federal courts have had no problem applying the statutory definition to unassembled combinations of silencer parts that can be used to assemble a complete silencer.

(3) Any part intended only for use in assembling a silencer

The Firearms Owners Protection Act of 1986 also added the third portion of the definition, “any part intended only for use in such assembly or fabrication.” Use of the word “only” coupled with the intent standard in this part of the definition makes it clear that the part in question may not be a dual or multi-use item that is capable of use in something other than a silencer. The single part language, for example, generally prevents ATF from classifying baffles and wipes as silencer parts (in the absence of evidence of intent) as this type of hardware may be used in manufacturing a variety of devices. The language also prevents ATF from classifying lawnmower mufflers, oil filters, and other pieces of hardware as silencers, unless there is evidence the possessor intended to adapt these items for use in making a silencer.

ATF has also classified certain threaded barrels or muzzle thread adapters allowing silencers to be screwed onto barrels as silencers under the “any part” portion of the definition. In a series of private letter rulings on this issue, ATF distinguished items that allow attachment of devices other than silencers from those that will only allow attachment of a silencer. For example, if the threaded barrel or adapter allows attachment of a muzzle brake or a silencer, ATF does not classify the item as a silencer. Conversely, if the threaded barrel or adapter is only for attaching a silencer, then it is regulated as a silencer. See Halbrook, supra at 738.

III. Ongoing Litigation

Industry should closely watch two cases currently making their way through federal court. Both involve devices the manufacturers contend are muzzle brakes, and ATF classified both as silencers. The first is Innovator Enterprises, Inc. v. Jones, 28 F. Supp. 3d (D.D.C. 2014). In this case ATF classified a device called the “Stabilizer Brake” as a “firearm silencer” because it has design features of a silencer, including an expansion chamber, ported inner tube, and end cap. The District Court found ATF failed to articulate a satisfactory explanation for its decision, as the agency relied solely on the physical characteristics of the device. The court noted ATF compared the three listed features of the device to the agency’s list of six features of “known” silencers and failed to explain its conclusion that the device is a silencer. The court also expressed concern that ATF failed to conduct any sound meter testing of the device to determine whether it diminished the report of a firearm. For these reasons the court held that ATF failed to articulate a satisfactory reason for its decision and reversed and remanded the decision to ATF for further consideration.

Unfortunately for Innovator Enterprises, the case has been languishing at ATF since March 2014, with no further action following remand. It is unclear when or if ATF will provide a second letter ruling in accordance with the court’s instructions.

The second case is currently on appeal in the First Circuit Court of Appeals and involves a single part the manufacturer used as both a muzzle brake and a component of a silencer. The case is Sig Sauer, Inc. v. Jones, No. 14-cv-147, 2015 WL 5656067 (D. N.H. 2015), and it is interesting because it concerns the “any part intended only for use” part of the statutory definition. In 2013, Sig Sauer submitted the part to ATF seeking confirmation that the item is a muzzle brake. Sig Sauer submitted the part permanently affixed to a short barrel rifle, explaining the company’s intention that the part serve as a muzzle brake and also to avoid classification of the rifle as a short barrel rifle under the NFA. The company made it clear in its submission to ATF that the part was a dual-use part the company designed and intended both as a component of silencers and as a muzzle brake on the short barrel rifle submitted to ATF for classification. ATF classified the part as a firearm silencer.

In Sig Sauer’s case against ATF, the District Court granted the government’s motion for summary judgment, holding ATF’s classification of the part as a silencer was not arbitrary and capricious. Sig Sauer filed a notice of appeal with the First Circuit on October 19, 2015.

This case should be watched carefully, as it will affect dual- and multi-use parts, and the analysis ATF uses in making silencer classifications.

IV. Marking, Registration, and Transfer

The GCA requires “firearms,” including silencers, be marked with a serial number, model, caliber or gauge, and the name, city, and state of the manufacturer. If the silencer is imported, it must also be marked with the name of the country of manufacture and the name, city, and state of the importer. Because the definition of “firearm silencer” includes each and every part of the device, literal application of the marking requirements would require each baffle, wipe, end cap, silencer body, and other part to be marked with the required information. Fortunately for the silencer industry, ATF has adopted a common-sense interpretation of the marking requirements in implementing the 1986 amendment adding parts to the definition. FFLs who are properly qualified under the NFA as manufacturers may manufacture silencer parts without marking them if the parts will be used by that manufacturer or another manufacturer to make complete silencers. This position is reflected in Section 7.4.6 of ATF’s National Firearms Act Handbook, ATF E-Publication 5320.8, available on ATF’s website.

Similarly, ATF allows manufacturers who make silencer parts for assembly into complete silencers to forego registration until the parts are assembled into complete silencers. If the manufacturer will be transferring the parts to another manufacturer, no transfer application and approval by ATF is required. This position is also articulated in section 7.4.6 of the NFA Handbook.

Fully assembled silencers must be marked in accordance with the law and regulations, registered by close of business following the day they are completed, and transferred only pursuant to an approved transfer application. ATF strongly recommends that manufacturers place all required markings on the outer tube of the silencer, as this is the industry standard.

V. Repair

ATF has published information on its website concerning repair of registered silencers. Questions and answers first issued in 2008 address the legal requirements for registered silencers to be sent to the original manufacturer or another qualified manufacturer for repair. (Research tip: If you have trouble finding the questions and answers on ATF’s website, they are also published in an Appendix to the National Firearms Act Handbook) The bullet points below summarize ATF’s positions on repair.

Registered owners of silencers may lawfully ship a silencer to any qualified manufacturer or qualified gunsmith for repair without an approved NFA transfer application. ATF treats such transactions as “conveyances” that do not require an approved transfer. The silencer should be accompanied by a letter from the registrant to the manufacturer requesting repair and return of the silencer.

Qualified manufacturers and qualified gunsmiths may repair silencers by replacing worn, damaged, or defective parts. All parts not reinstalled in the silencer must be destroyed. However, replacement of the outer tube results in the making of a new and different silencer that requires filing of a new Form 2 Notice of Firearms Manufactured or Imported (ATF Form 5320.2), and the transfer of the silencer to the registrant must be undertaken in accordance with the NFA. Repaired silencers and replacement silencers may be shipped directly to the registrant in interstate commerce without going through a FFL in his or her state of residence.

If the outer tube is replaced or the repairs otherwise result in the manufacture of a new and different silencer, it must be marked in accordance with the GCA and NFA. The required markings include an individual serial number and the name, city, and state of the manufacturer who made the new silencer. The silencer may not be marked with the same serial number as the old, and the name of the manufacturer conducting the repair must be marked, rather than the name of the original manufacturer.

Repairs may not result in the removal, obliteration, or alteration of the serial number. If a silencer part bearing the serial number (other than the outer tube) must be replaced, the new part must be marked with the same serial number as the replacement part.

The repair must be limited to replacing damaged or worn parts with identical parts. If the identical parts are not available, the new parts must not result in a change in the dimensions or caliber of the silencer. Change in the dimensions or caliber result in the manufacture of a new and different silencer that requires registration on Form 2 and transfer in accordance with the GCA and NFA.

Minimal reduction in the length of the tube due to rethreading is permissible. Increasing the length of the tube is not permissible without new registration.

Registered owners who wish to obtain parts to repair their registered silencers may do so, but the parts must be registered and transferred to the owner in accordance with the GCA and NFA.

VI. Conclusion

The GCA and NFA requirements regulating firearm silencers are complex and ATF’s interpretations subject to change. As the silencer market continues to grow, it is worth the effort for licensees to ensure they understand this area of the law and regulations.

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, DC (www.reevesdola.com). She has dedicated her practice since 2003 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.

This article first appeared in Small Arms Review V20N3 (April 2016) and was posted online on February 19, 2016

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