Monday, August 15, 2016

Monday Gunday: a Transcript of Last Week's Gunblog Varietycast ITAR Rant

I thought folks might find it helpful to be able to refer to a transcript of what I said in GBVC Episode #103 regarding the new ITAR "regulatory guidelines" instead of having to listen to the podcast each time.

The Main Topic:
The State Department, ITAR, and Gunsmiths

This actually has me so upset that I’m in full-on nerd rage about it. I’m going to try to keep my thoughts coherent and logical, but please understand that just talking about this gets me very worked up. Sean, get your finger on the censor button because I might just start swearing.

So before I go off on a rant, let me explain what ITAR is and does before I explain how this latest regulatory clarification is both a perversion of the original intent of ITAR and a gross violation of rights.

ITAR is an acronym for International Traffic in Arms Regulations, and it was created in 1976 to prevent American companies from exporting arms to countries or entities that were hostile to the United States. Since then, its role has expanded to include certain technologies -- for example, some kinds of night vision -- that give our country or our military an edge, and so we heavily restrict the export of those technologies so that the bad guys don’t get it. It’s important to note that technologies can mean concepts as well as material, such as new manufacturing techniques and the like.

Now I’m practically a 1st Amendment absolutist over here -- I believe VERY strongly in Freedom of Speech -- but I do understand the reasoning behind ITAR. Put simply, we don’t want al-Qaeda or Daesh to have access to the same arms and tech that our warfighters have. So in that regard, I grudgingly accept the necessity of ITAR being able to tell companies to whom they may sell their property.

But this most recent regulatory clarification -- hoo boy. I’ve attached a couple of PDFs for people who want to read for themselves; I’ll paraphrase for everyone else.

A big THANK YOU goes out to Firearms Law Attorney Benjamin M. Blatt, Esquire, for helping me decipher the legalese and putting it into simple English. If you need a lawyer in Indiana, he’s your man.

So the short version here is that the Directorate of Defense Trade Controls has decided -- because, you see, much like the ATF, this UNELECTED BUREAUCRACY gets to define the regulations it then enforces -- that, and I quote, “Many -- but not all -- traditional gunsmithing activities do not constitute manufacturing for ITAR purposes and, therefore, do not require registration with the DDTC.” Or, put another way, they have unilaterally and without legislative oversight decided that a lot of gunsmithing tasks DO require ITAR registration -- a process which, by the way, takes around two months and around $2,250 a year. So by making these requirements, they’re going to put many, many gunsmiths out of business. Why? Because fuck you, peon, that’s why.

So let’s look at these terrible technologies that ITAR is going to regulate:
a) Use of any special tooling or equipment upgrading in order to improve the capability of assembled or repaired firearms;
b) Modifications to a firearm that change round capacity;
c) The production of firearm parts (including, but not limited to, barrels, stocks, cylinders, breech mechanisms, triggers, silencers, or suppressors);
d) The systemized production of ammunition, including the automated loading or reloading of ammunition;
e) The machining or cutting of firearms, e.g., threading of muzzles or muzzle brake installation requiring machining, that results in an enhanced capability;
f) Rechambering firearms through machining, cutting, or drilling;
g) Chambering, cutting, or threading barrel blanks; and
h) Blueprinting firearms by machining the barrel.
Yes, you heard right: the DDTC is protecting us from the terrible scourge of 19th-century technology known as drilling, tapping, and threading. Who knew that a simple drill press and lathe could produce such awful, high-tech, restricted capabilities such as -- and I shudder to say this aloud -- putting a scope on a rifle?

I don’t see how anyone can interpret this as anything less than an overt “fuck you” to the gun industry and to firearms owners who want to modify their rifles. Want to put a suppressor on your rifle? Hahahah, screw you, your gunsmith can’t thread the barrel unless he’s spent thousands to become ITAR compliant.

Now some of you may be wondering how, precisely, the Directorate of Defense Trade Controls has authority over gunsmiths in this regard. After all, wasn’t ITAR designed to prevent the export of guns and high-tech concepts? How could this possibly affect American citizens doing work for other American citizens domestically?

Again, put simply, ITAR has been given jurisdiction over things called “Defense articles”. How does one define a defense article? That would be in the second PDF I have attached in the notes, but the easy answer is “practically all guns are defense articles.”

The very first category says “Nonautomatic and semi-automatic firearms to caliber .50 inclusive”, which is… practically every gun we can own legally. But wait, it gets better! Further categories specify automatic weapons up to 50 cal, shotguns with a barrel less than 18”, sound and flash suppressors, riflescopes manufactured to military specifications (and most scopes these days are), and barrels, cylinders, frames and breech systems.

A regular pump-action shotgun might get a pass, except that there’s a category which states “Firearms or other weapons having a special military application regardless of caliber.” I’m pretty sure that the Army issues Mossberg 590s to its Military Police.

So, basically… all guns. And, of course, all the components and ammunition for the above.

Now, here’s what this means for you, based on my knowledge and understanding of what Mr. Blatt told me:
  • If you’re a gunsmith, you’re screwed unless you pay the ITAR registration. And even if you do, you have to wait until your forms are processed, which could take longer than 2 months if a bunch of people -- like, say, all the gunsmiths in the United States -- suddenly applied. 
  • If you want to have your gun modified by a gunsmith to take a suppressor, scope, have it re-chambered -- you’re going to have to wait until your gunsmith pays his tribute and is licensed. Otherwise, anything you have done to it will be illegal. I don’t know if YOU will get in trouble for that, but the gunsmith sure will. 
  • Fortunately, this is all for commercial enterprises. If you do this in your own garage with your own tools, you ought to be okay -- for now, at any rate. Likewise if you allow your buddy to use your tools. I’m not sure how the law would regard a buddy paying you in beer and/or pizza to mod your gun for him, but I wouldn’t risk it. 
  • Regular gunsmith repairs to a broken gun are fine, so long as they don’t involve the BLEEDING EDGE HIGH TECH PROCESSES known as cutting, threading, drilling and tapping… 
    • ...except if such things don’t change the capability of the gun. For example. If you already have a drilled and tapped scope mount and you want iron sights installed, that ought to be okay. Then, drilling and tapping is perfectly legal. Clear as mud, right? 
  • Cosmetic additions and engravings are okay, as are adding accessories that don’t require those dark 19th century machining arts. So you could have a gunsmith install a suppressor for you, so long as the barrel was already threaded, but you couldn’t have him thread it for you unless he was ITAR compliant. 
  • According to Attorney Blatt, “There's an exception on the CFR munitions list for shotguns under .50 without military application. So gunsmiths SHOULD be able to go hog wild on .410s and 20 gauges without registering for ITAR.” I’m not sure if that’s a silver lining or just an oversight on DDTC’s part. 
  • Finally, and surprisingly, manual reloaders are okay. Actually, it says “Manual loading or reloading of ammunition of 50 caliber or smaller”, so it could be argued that this doesn’t apply to 12 gauge shotgun ammo. This seems aimed at systemic production of ammunition -- I’m not sure if the higher end reloaders, such as from Dillon, count as “automated loading or reloading”. I think this is more likely a measure meant to screw with ammunition manufacturers like Remington, Winchester and the like. The big companies will just pay the fine, but the smaller companies may go out of business because of this. 
So, welcome to the final days of the Obama Administration, where our petty and passive-aggressive Coward-in-Chief is going to screw with gun owners and the gun industry as much as possible, because he lacked the wherewithal to actually pass the gun control legislation he wanted.

There’s probably more of this crap ahead, too. I’ve attached another PDF that talks about the Firearm & Ammunition Excise Tax, or FAET. And of course there are all the nasty rumors, about how the EPA wants to define ammunition as hazardous or toxic, and how OSHA wants to implement ammunition storage laws. They’re going to find all sorts of creative backdoor -- and yes, double entendre FULLY intended -- backdoor means to screw with us.

So, how do we fight this current regulatory clarification? Reading through the clarification, you see many references to “the ordinary, contemporary, common meaning for “gunsmithing,” That means the DDTC is not using a legal definition for what gunsmithing is, and as we know by now, there are lots of legal terms of art in use -- such as how the ATF doesn’t define a black powder gun as a firearm.

So it ought to be relatively easy to legally define Gunsmithing, and what gunsmithing entails, as exempt and outside the common meaning of manufacturing. That would short-circuit a LOT of this bullshit.

How would we do that? If just 1,000 gunsmiths contributed $50, that would form an excellent war chest to fight this legislatively. Unfortunately, no one has yes set up a legal defense fund for this, so I cannot tell you where to send your money.

But if, for example, there was a gunsmith organization willing to raise the money, Prince Law definitely has the experience in federal admin law disputes to deal with this. I’m just sayin’.

Regardless, if you know someone in the legal world who has the time and inclination to create something like this, then you bug the shit out of them to do this. Because we have to fight this garbage, and we have to fight it NOW.

Show Notes

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