Censored or redacted material is noted with "[]"; these two memos were obtained under the Freedom of Information Act, and have some information censored out, as allowed by that Act. DEPARTMENT OF THE TREASURY Bureau of Alcohol, Tobacco and Firearms Washington, D.C. 20226 MAY 31 1984 MEMORANDUM TO: Chief Counsel FROM: Chief, Firearms and Explosives Division SUBJECT: Machinegun Conversion Kits As you are aware, there are a variety of conversion kits for sale to the public. Some of these kits meet the definition of a firearm under the National Firearms Act as "a combination of parts, etc.," and as such are registerable items under the Act. One of the more common uses of conversion kits coming to our attention is with the Colt AR 15 rifle (and copies thereof) wherein the firearm is fitted with M-16 components (or similar type parts) which permit the weapon to fire automatically. An AR-15 drop-in auto sear combined with a M-16 hammer, M-16 trigger, M-16 disconnector, M-16 selector, and M-16 bolt carrier or bolt carrier converter is a machinegun regardless of date of manufacture. If only the auto sear is removed the firearm will in all probability fire automatically; therefore should or rather would there be a requirement that once an AR-15 is converted to automatic fire, it is thereafter an NFA firearm? What is actually happening in the field is the proliferation of weapons that have been converted and then partially returned to original configuration and are most likely to fire automatically. Yet they are not registered nor is the making or transfer tax paid thereon. Several questions arise as to the manner in which the use of the registered kits to make a machine gun best fits into the NFA scheme of registration. For example, is the possessor of the kit required to submit ATF Form 1 and the $200.00 "making tax" prior to installation of the kit into a firearm? Or is a simple notice to the agency describing the firearm sufficient for purposes of the Act? Further, may a possessor of the kit indiscriminately transfer the kit from one firearm to another? Would a mere notice to - 2 - Chief Counsel the agency be sufficient if this were done (this type action is already creating a clerical burden on the NFA staff)? Or would registration of each firearm so convertible or converted with the kit, be registered? Please give us your opinion as to the legal requirements for the activities involving conversion kits described above (as both registered and unregistered NFA firearms). [signed] [new document] ??? 27 1985 MEMORANDUM TO: Chief, Firearms and Explosives Division FROM: Assistant Chief Counsel (Firearms and Explosives) SUBJECT: Machinegun Conversion Kits Reference is made to your request for our opinion concerning the status under the National Firearms Act, 26 U.S.C. Chapter 53, of firearms which have been converted to fire automatically. Specifically, your question concerns the classification of an AR-15 rifle which has been so converted by the addition of certain M-16 parts and an auto-sear. Subsequently, the auto-sear is removed, yet the firearm continues to fire automatically. In addition, you have requested advice concerning the procedures to be followed regarding the transfer of a registered machinegun conversion kit from one firearm to another. The National Firearms Act, 26 U.S.C. section 5845(b), defines "machinegun" to include any combination of parts designed and intended for use in converting a weapon to shoot automatically more than one shot without manual reloading by a single function of the trigger and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. Such combinations of parts are subject to all provisions of the Act. Based on the above, the Bureau ruled in 1981, that the auto-sear, which is also known by various trade names, which consists of a rear mounting body sear, return spring, and pivot pin, constituted a "combination of parts" designed and intended for use in converting a weapon to shoot automatically. ATF Rul. 81-4, ATFB 1981-3, 78. The Bureau found that the simple addition of the auto- sear to certain AR-15 semi-automatic rifles with certain M-16 - 2 - Chief, Firearms and Explosives Division internal components installed would convert such rifles into machineguns. Therefore, the auto-sear was classified as a combination of parts designed and intended for use in converting a weapon to shoot automatically. Consequently, the auto-sear was classified as a machinegun as defined by 26 U.S.C. section 5845(b) and subject to all the provisions of the NFA. Apparently, in some instances, the AR-15 rifle will continue to fire automatically even after the auto-sear is removed. This "new" NFA weapon is not registered in the National Firearms Registration and Transfer Record (NFRTR), nor has there been a making tax paid. Initially, we would point out that addition of a registered auto- sear to a semi-automatic AR-15 rifle is not a "making" of a machinegun. Section 5845(i) defines the term "make" to include manufacturing, putting together, altering, or otherwise producing a firearm. Section 5821(a) provides that there shall be levied, collected and paid upon the making of a firearm a tax at the rate of $200 for each firearm made. In the instant case, the auto-sear is the machinegun and the registerable part. Generally, if the auto-sear is acquired legally, a $200 transfer tax would have been paid and the auto-sear registered in the NFRTR at the time the individual acquired the auto-sear. The addition of the auto-sear to the AR-15 rifle, which without the addition of the auto-sear is not a machinegun, may be viewed as a gunsmithing operation which does not incur any additional tax liability. This office took a similar position in 1980 when advice was requested concerning the repair of an M-1 carbine which had been converted into a fully automatic weapon by the addition of an M-1 "conversion kit". In that case, the converted carbine never worked properly and was plagued by malfunctions. The registered owner of the weapon wanted to replace the defective M-1 receiver with an operable receiver without paying another $200 making tax. The Bureau held that the replacement of the defective M-1 carbine receiver with an operable receiver was not a new "making" of a machinegun. The seven-part "conversion kit" was treated as the registerable item and a $200 making tax had already been paid when the conversion kit was initially acquired. The replacement of the M-1 receiver, was held to be a gunsmithing operation which did not incur any additional tax. Moreover, even with the removal of - 3 - Chief, Firearms and Explosives Division the defective M-1 receiver the taxpayer was still in possession of a machinegun, i.e., the seven-part conversion kit. The addition of a new M-1 receiver merely created a different type of machinegun, i.e., a weapon that would shoot automatically. See Chief Counsel Opinion No. 22915, dated October 7, 1980. Further, our conclusion would be the same if a person possessed a registered frame or receiver of a machinegun and then assembled the remainder of the weapon around the registered receiver. Such an activity would not result in the making of an additional NFA weapon or incur any additional tax since the person was already in possession of a registered weapon and was not "making" a new weapon. In the instant case, the AR-15 rifle with the M-16 internal components and the auto-sear is a single NFA weapon for two reasons. First, it contains the auto-sear which falls within the "combination of parts" definition of machinegun, and secondly, the addition of the auto-sear and M-16 parts allows the weapon to shoot automatically more than one shot without manual reloading by a single function of the trigger. Nevertheless, it constitutes only one machinegun for tax and registration purposes. Similarly, the Bureau has held that a fully automatic weapon, which incorporates a silencer as an integral or permanent part of the automatic weapon, was subject to only one $200 transfer tax despite the fact that it constituted both a machinegun and a silencer as defined in section 5845(a)(7). [redacted sentence] (December 23, 1983) (copy attached). On the other hand, we believe a $200 making tax would be incurred if upon the removal of the auto-sear the AR-15 rifle still fired automatically. In that case, the removal of the auto-sear constitutes a "making" since the possessor has altered the AR-15 so that it will shoot automatically. Thus, there are two distinct NFA weapons, i.e., a registered auto-sear and an unregistered, automatic AR-15 rifle. Apparently, there is no method to accurately determine whether the removal of the auto-sear will ensure that the AR-15 rifle will not fire automatically. This may occur since the M-16 parts alone may allow the AR-15 to fire automatically. Consequently, possessors of such weapons should be advised that removal of the auto-sear should be - 4 - Chief, Firearms and Explosives Division accompanied by the removal of the other internal M-16 parts to ensure that the rifle will no longer fire automatically. As stated above, failure to remove these parts will result in making tax liability should the AR-15 rife continue to fire automatically. Indeed, possession of such weapons would be in violation of the Act and they would be subject to seizure and forfeiture. Of course, if the AR-15 rifle no longer functions automatically after removal of the auto-sear, the rifle no longer constitutes an NFA weapon. In this regard, the Bureau has held that an M1 carbine converted to an M2 capable of fully automatic fire and then restored to its original condition as an M1 capable of only semi-automatic fire is no longer an NFA weapon. See Chief Counsel Opinion No. 21032, dated June 10, 1970. Your next question concerns the notice which should be given to the Bureau by possessors of registered auto-sears and other conversion kits when such kits are "transferred" from one firearm to another. As previously noted, the addition of the auto-sear to an AR-15 rifle is not a "making" and does not incur any additional tax or registration requirement. However, it would be in the best interest of the registered possessor of such firearms to advise the Bureau of every firearm into which auto-sear has been installed so that the NFRTR adequately describes the registered weapon. This would avoid potential problems for the registered possessor in the event the possessor is later questioned concerning the registration status of a firearm found in his possession. Such notice may be done informally and should include a description, including the serial number, of the firearm into which the auto-sear has been installed. In light of the significance of this matter, we recommend that an ATF ruling be issued on the basis of this memorandum. [Signed] [Jack B. Patterson]