Cite as Sherwood Int'l Export Corp. v. Higgins, 1986 WL 15702 (D.D.C. 1986) SHERWOOD INTERNATIONAL EXPORT CORPORATION, Plaintiff, v. Stephen E. HIGGINS, Director, Bureau of Alcohol, Tobacco, and Firearms, Defendant. Civ. A. No. 85-1367. United States District Court, District of Columbia. May 23, 1986. MEMORANDUM OPINION NORMA HOLLOWAY JOHNSON, District Judge. Plaintiff brings this action seeking review of the final decision of defendant denying plaintiffs request for a permit to import machine gun receivers. Presently before the Court are cross motions for summary judgment. After careful consideration of the motions, the supporting and opposing memoranda, and the entire record herein, the Court finds, for the reasons set forth below, that the entry of summary judgment in favor of defendant is warranted. I. Plaintiff, Sherwood International Export Corporation, is a California corporation which deals in arms and implements of war and is duly licensed under federal and California firearms laws as an importer of destructive devices and ammunitions for destructive devices. Defendant, the Bureau of Alcohol, Tobacco, and Firearms, is a division of the Department of the Treasury, and is authorized pursuant to 29 C.F.R. section 179.11 to review and act upon applications for permits with respect to the importation of firearms pursuant to the National Firearms Act (the NFA), 26 U.S.C. sections 5841 et seq. By letters dated October 9 and November 19, 1984, plaintiff wrote defendant inquiring whether it could obtain a permit to import frames or receivers for 7.62 mm Browning machine guns, without the parts necessary for assembly into fully assembled machine guns, purchased from the Government of Israel. [footnote *] In the letters, plaintiff expressed its intent to use parts which it had previously purchased from the United States Government to assemble completed machine guns for resale to friendly foreign governments under appropriate federal licensing or to law enforcement agencies in the United States. It is plaintiffs position that because the Browning receivers are not "machine guns" as that term is defined by the NFA, they are not subject to the NFA's import restrictions which are applicable to machine guns only. By letter dated November 15, 1984, defendant informed plaintiff that while it would consider applications to import receivers for the purpose of sale to law enforcement agencies, as long as the applications were supported by purchase orders from those agencies, it would not approve a permit to import the receivers for the resale to foreign governments. Defendant explained that the NFA did not provide for approval of such permits. On February 12, 1985, plaintiff submitted a formal application for the importation of machine gun receivers which was denied by defendant by letter dated February 20, 1985. Having exhausted its administrative remedies, plaintiff filed a two-count complaint in the instant action on April 26, 1985, seeking review of the disapproval of the application to import the machine gun receivers and declaratory judgment that a frame or receiver, without any additional parts from which a complete machine gun could be made, does not constitute a "machine gun" for the purposes of the NFA. II. Standard of Review This court has subject matter jurisdiction over plaintiff s claims pursuant to 28 U.S.C. section 1331 because they arise under the laws of the United States. The Administrative Procedure Act (the APA) provides the standard for reviewing agency action under the court's general federal question jurisdiction, In this regard, the usual standard for review is whether the agency's decision was arbitrary and capricious, 5 U.S.C. section 706(2)(A), and defendant argues that this is the appropriate standard. Under this standard, where a court finds that an administrative decision has a rationally supportable basis, it cannot deem the decision to be arbitrary and capricious. This standard dictates that a court is to show proper deference to the expertise of the agency. Motor Vehicles Mfrs. Association v. Ruckleshaus, 719 F.2d 1159 (D.C. Cir. 1983). Plaintiff advances two theories for the proposition that the Court must undertake de novo review of the agency's decision. First, plaintiff refutes that this action is governed by the APA and argues instead that review of defendant's decision is governed by 18 U.S.C. section 923. Section 923 provides that a reviewing court "may consider any evidence submitted by the parties to the proceeding." That the court is permitted to accept evidence outside the administrative record, argues plaintiff, evidences that Congress intended judicial review to be de novo. Second, plaintiff maintains that even if the standards set forth in the APA govern, the agency's decision is still subject to de novo review because the controlling issue presents a question of law as opposed to a question of fact. Office of Communication of the United Church of Christ v. FCC, 707 F.2d 1413, 1422 (D.C. Cir. 1983). In this regard, plaintiff maintains that the court is not required to accord any special deference to the decision of the agency and need not defer to the agency's legal conclusions. See Coca-Cola v. Atchinson, 608 F.2d 213, 218 (5th Cir. 1979). The court disagrees that 18 U.S.C. section 923 governs the instant action. Defendant submits, and the court agrees, that section 923 supplies the standard for review in instances where a plaintiff challenges defendant's denial of a permit to engage in business as a federal firearms dealer, manufacturer, or importer. The subject of the instant lawsuit involves not the denial or revocation of a license to engage in the firearms business but the denial of a permit to import specific firearms based upon the criteria set forth in 26 U.S.C. section 5844. Plaintiff did not challenge defendant's position in this regard in its opposition to the motion of defendant for summary judgment. Section 923 being inapplicable, this case is governed by the standards set forth in the APA. Here, the Court is not limited to determining whether the agency decision is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law...", 5 U.S.C. section 706(2)(A), as urged by defendant. Rather, as the issue presented in this case involves purely a question of law, the decision of defendant does not carry the presumption of finality accorded a question of fact, and may be decided by the court itself. 5 U.S.C. section 706; see also General Ry. Signal Co. v. Washington Metropolitan Area Transit Authority, 527 F. Supp. 359 (D.D.C. 1979), aff'd, 664 F.2d 296, cert. denied 452 U.S. 915. Hence, as plaintiff has argued, defendant's administrative decision is freely reviewable by this court. North Georgia Building & Construction v . Goldschmidt, 621 F.2d 967, 708 (5th Cir. 1980); Coca-Cola v. Atchinson, 608 F.2d at 218. The primary legal issue before the Court is whether the NFA prohibits the importation of machine gun receivers or frames into the United States. 26 U.S.C. section 5844 provides that "[n]o firearm shall he imported or brought into the United States or any territory under its control or jurisdiction unless the importer" establishes that it meets one of the enumerated exceptions set forth in that statutory provision. Plaintiff does not argue that the importation of machine gun receivers falls within one of the limited statutory exceptions. Rather, plaintiff asserts that machine gun receivers are not subject to the section 5845 import restrictions as machine gun receivers are not included in the definition of machine guns set forth in section 5845(b) of the NFA, defining machine guns as: [a]ny weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any combination of parts designed and intended for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person. Plaintiff reads this definition as excluding machine gun receivers which alone lack the capacity to shoot. It urges that the importation of receivers would not violate the NFA as long as the other parts necessary for assembly were not imported simultaneously. In support of its interpretation of the statutory definition of machine guns, plaintiff cites United States v. Seven Miscellaneous Firearms, 503 F. Supp. 565 (D.D.C. 1980). In that case, the court construed the statutory definition of machine gun. It concluded that a machine gun consisted not only of the receiver but also other component parts necessary to assemble an operative weapon. In reaching this conclusion, the court focused on the word "and" in the second sentence of section 5845(b) and found that because the statutory language was phrased in the conjunctive rather than the disjunctive: ... a reasonable reading of the statute would require the conclusion that the term 'frame or receiver' is not contemplated in isolation but together with the possession of additional parts from which the machine gun could be assembled. The court arrived at its interpretation without "resort to legislative history" as it viewed the statutory language as "clear and unambiguous on its face." 503 F. Supp. at 576. Based on this holding, plaintiff argues that defendant's denial of its permit request was improper. In opposition, defendant takes the position that a machine gun receiver alone is a "machine gun" within the definition of the NFA, thus making it subject to the NFA's importation restrictions. The Court agrees. As a preliminary matter, the Court does not find the statutory definition of machine guns unambiguous and, therefore, resort to legislative history is instructive. A review of the pertinent legislative history makes clear that Congress intended machine gun receivers to be included in the definition of machine guns and are subject to the import restrictions applicable to fully assembled firearms. Prior to 1968, the definition of a machine gun referred only to fully assembled machine guns. In 1968, however, the NFA was amended by Title II of the Gun Control Act of 1968 and the definition of machine gun was expanded to include the sentence of the statute which the court in Seven Miscellaneous Firearms interpreted as requiring that a person have possession or control of a receiver and a combination of parts from which a machine gun can be assembled simultaneously in order to possess or control of a machine gun. See 26 U.S.C. section 5845(b). It is the Court's view that by adding that sentence it was Congress' intent to broaden the definition of machine gun to include a frame or receiver. This is evidenced by the Senate Report which states: This subsection defines the term "machine gun" and the first sentence is the existing law. The second sentence is new. It provides three new categories as included within the term "machine gun": (1) the frame or receiver of a machine gun, (2) any combination of parts designed and intended for use in converting a weapon other than a machine gun into a machine gun; for example, so-called conversion kits, and (3) any combination of parts from which a machine gun can be assembled if such parts are in the possession of a person. This is an important addition to the definition of "machine gun" and is intended to overcome problems encountered in the administration and enforcement of existing law. It is intended that the three additional categories be subject to all the provisions of the chapter applicable to serviceable machine guns. S. Rep. No. 1501, 90th Cong., 2d Sess. 45-46 (1968). That machine gun receivers were intended to be included in the definition of machine guns is further apparent in the Conference report on the legislation which reads: The present National Firearms Act covers gangster-type weapons such as machine guns, sawed-off shotguns, short-barreled rifles, mufflers and silencers. Under the amendment it would also cover machine gun frames and receivers, so-called "conversion kits" for turning over weapons into machine guns, and combinations of machine gun parts when in the possession of a single person. 1968 U.S. Code Cong. & Ad. News 4410, 4434 (H.R. Cong. Rep. No. 1956, 90th Cong., 2d Sess.). Based on the legislative history, it is clear to the Court that the word "and" in the section 5845(b) reflects a purpose to include three new categories of weapons within the definition of machine guns. Accord, U.S. v. Kelly, 548 F. Supp. 1130, 1133 (E. D. Pa. 1982). [footnote *] Plaintiff does not challenge the legislative history as presented. Instead, plaintiff appears to argue that the Court should ignore the legislative history on the ground that it is bound by the statutory interpretation of section 5845(b) set forth in Seven Miscellaneous Firearms, supra. The Court, however, is not compelled to follow that decision, Starbuck v. City of San Francisco, 556 F.2d 450 (9th Cir. 1977); Mueller v. Allen, 514 F. Supp. 998 (D. Minn. 1980), aff'd 103 S. Ct. 3062, and further, finds that case factually distinguishable from the instant action. The dispute in Seven Miscellaneous Firearms stemmed from the Government's institution of a forfeiture proceeding against the National Rifle Association for failure to register seven weapons received for display in the association's firearms museum. These weapons included receivers which had plugged barrels and were missing parts necessary for automatic, semi-automatic, and other firing. In determining that the seized receivers did not constitute "firearms" as that term is defined by section 5845(b), the court placed great emphasis on the fact that the receivers were not designed as weapons but designed and manufactured as museum pieces only. The court stated: ... no one of them shoots, no one of them is designed to shoot, no one of them can be readily restored to shoot, automatically more than one shot without manual reloading by a single function of the trigger. 503 F. Supp. at 576. The court further found the particular forfeiture proceeding as "a highly unusual action." 503 F. Supp. at 578. Recognizing defendant's discretionary authority to exempt from registration requirements certain firearms which are collector's items or curios when they are not likely to be used as weapons, and that the seized items were collector's items or museum pieces, the court determined that the seized items should not have been deemed as firearms and, therefore, not subject to forfeiture under the NFA. The court, citing Davis v. Erdmann, 607 F.2d 917 (10th Cir. 1979), further concluded that to seize such items would not serve the purpose of the NFA and the Gun Control Act. These Acts recognize the interest of citizens in antique and unusual firearms and are not intended "to place any undue or necessary federal restrictions or burdens on law abiding citizens with respect to the acquisition, possession or use of firearms ... [for] any ... lawful activity." Id. at 918. The facts presented in the above case stand in stark contrast to the instant action. Here, plaintiff readily admits its intention to import machine gun receivers which were designed and manufactured specifically to be assembled with component parts, it has already purchased. Plaintiff has freely articulated its intention to manufacture completed firearms. Plaintiff further represents that its principal goal is to export fully assembled firearms "to friendly foreign governments" under proper licensing. Whereas in Seven Miscellaneous Firearms, supra, the court recognized defendant's discretionary authority to exempt from registration certain firearms as collector's items, the Court is not aware of, and plaintiff has not alluded to, any parallel authority for approval of a permit application to import machine gun receivers for the purpose of later export to foreign governments. To the contrary,---section 5844 expressly restricts the circumstances under which firearms may be imported. To permit such importation appears to run counter to the purposes of the NFA. Based on the foregoing, the Court is convinced that the decision of defendant not to approve plaintiff s application to import the machine gun receivers for the purpose of re-export was proper. The Court finds it unnecessary to reach defendant's alternative arguments with respect to Title I of the Gun Control Act, 18 U.S.C. section 925(d). The Court will, therefore, enter summary judgment in favor of defendant. An Order consistent with this Memorandum Opinion will be filed this date. JUDGMENT This case came on for hearing before the Court, Honorable Norma Holloway Johnson, District Judge, presiding, on the motion of defendant for summary judgment and the cross motion of plaintiff for summary judgment. The issues having been duly considered and a decision having been dryly rendered by the Court in its Memorandum Opinion and Order of May 23, 1986, It is ORDERED and ADJUDGED that plaintiff take nothing and that this action he dismissed on the merits. ORDER Upon consideration of the cross motions for summary judgment, the supporting and opposing memoranda, and the entire record herein, and consistent with the Memorandum Opinion of even date, and it appearing to the Court from the pleadings and affidavits that no genuine issue exists as to any material fact and that defendant is entitled to judgment as a matter of law, it is this day of May, 1986, ORDERED that the motion of plaintiff for summary judgment be, and hereby is, denied; and it is further ORDERED that the motion of defendant for summary judgment be, and hereby is, granted. FOOTNOTES * The frame or receiver of a machine gun is the stock of the weapon to which the firing mechanism and barrel must be separately added in order to make the gun operable. * In Kelly, the court concluded: The use of the word "and" rather than "or" in this case is clearly meant to include each of the three separate definitions within a single three-pronged definition of "machine gun" ... the words "and" and "or" cannot be given fixed and immutable meanings independent of their context or clear intent of the statute. See 548 F. Supp. at 1134.