Administrative Procedures are Important

ATF has a habit of ruling by letter, instead of the method Congress prescribes through the Administrative Procedures Act. Dave Hardy notes that in the case of 80% lowers, which are all over the gun news because of the raid on Ares Armor. It would be possible to do rule making on what a receiver is and is not, and have it be clear in the Code of Federal Regulations.

I don’t know how much you all know about these EP Armor polymer lowers, but it looks to me like they mill out the space for the trigger group, and then backfill it with a different color polymer so the customer knows exactly how much to machine. ATF argues that the milling process constitutes manufacturing a firearm, with all that it entails, regardless of whether you backfill it later. They have an argument to be made there.

But it’s quite disturbing that ATF was fishing for Ares customer list. What crime have the customers committed? Violating a determination letter? I know the courts have a habit of deferring to agency determinations, but how long is ATF going to be permitted to get away with ruling by letterhead instead of federal regulations like agencies are bound to?

I’d say good advice is, if you buy an 80% lower, cash and carry is the watch order of the day.

21 thoughts on “Administrative Procedures are Important”

  1. I heard it the other way around: First they mold the part that you’re going to remove, then they stick that part into the mold for the rest of the receiver such that it is part of the mold, and then they inject the plastic for the rest of the receiver. Then they remove the entire thing from the second mold. The part that will be the finished receiver never existed separately from the remove-me widget. The nature of the plastic is such that the future receiver and the remove-me-widget are permanently fused together as one piece until you use tools to mill out what you don’t need.

    I think the BATFE is going to lose on this one. They already established the precedent concerning how you have to assemble and disassemble a regular longarm so that at no time it is fire-able in a short-barrel-rifle configuration. The same order of operation precedent works against them in this case.

    1. They very well may lose if that’s how they are being manufactured. But in this case their beef is with the manufacturer. But beyond that, why go after Ares and the customer list? Something is fishy.

      1. You are darn right something is fishy. These Obamabots at the ATF are most likely fishing for the names and addresses of “ghost gun” makers the way I see it. Then those names and addresses are going to go on some other federal watch list. Then some private citizens are probably going to get visited, or maybe even raided too.

        “Ghost gun” is this newfangled term that this California legislator named Kevin De Leon was throwing out there during his big press conference that many of us have already seen, you know, where he also went full retard by wailing on about “30 caliber magazine clips” that can be fired down range in less than half a second.

        1. See the TTAG link below. The reason they want the customer list has to do with allegations of selling unserialized guns via a felon in the back room – NOT because of any conspiracy theory of making lists of folks buying 80% lowers. If they wanted such a list, it would be easier to just use credit card purchase histories, and not raid a rinky-dink shop in California selling a tiny amount of lowers.

          1. I have read the TTAG link below. The whole business about the convicted felon/illegal alien guy from Mexico charging a fee to help the undercover ATF agent complete his purchased 80% lower with a drill press in a back room did not happen at the Ares Armor establishment. Nor did this happen at the EP Armory establishment.

            This ATF undercover operation involving getting help to complete 80% lowers for a fee happened in this other place of business in California that I have never heard of. This other place of business has no affiliation with Ares Armor, nor does EP Armory have any affiliation with it, but the ATF goons still raided Ares Armor and EP Armory anyway. The ATF also raided the private home of the guy who founded EP Armory. They did not arrest anybody in these raids, but they did seize people’s computers and smart phones. That sounds like a fishing expedition to me. They are after the customer names and addresses.

            The ATF actually raided Ares Armor when the place was closed and vacant for some reason. It was like they were a bunch of burglars instead of federal agents. Pro-2A people were there to video them from the sidewalk outside. These videos are now on Youtube. Today, I watched the video which shows this ATF agent in a back room of Ares Armor, while he is taking a sledge hammer to their business safe. Like I said already – it was like watching a burglar in the act, rather than an ATF agent doing something that was justifiable.

            The thing is that I was checking out the Ares Armor web site more than a year ago. I never bought anything from Ares Armor, but this was only because their web site seemed to always be sold out of what I wanted to buy. Looking back, I am actually glad now that I never did buy anything from Ares Armor, because I don’t want my name and address to end up on any ATF database or whatever just because I bought an expensive paperweight (80% lower) from them.

            Just like Sebastian said above, if I actually do decide to buy an expensive paperweight from anybody, it will have to be by means of a face-to-face, cash or trade transaction. I am afraid that the ATF is just getting started with their illegal raids on people who run websites that sell expensive paperweights. It’s not going to stop with just these two in California.

      2. That manufacturing process is what I’ve been led to understand, too. I don’t think ATF has a legal leg to stand on in this case.

        Wanting the customer list bothers me. If EP Armory is making “illegal” receivers (by molding the receiver and then injecting the cavity-filler), that’s one thing, and it’s their problem. But whether they are or not, the customer list is only useful as a fishing expedition and owner harassment tool.

        1. “the customer list is only useful as a fishing expedition and owner harassment tool”

          No, the customer list is useful if they want a list of people who may have inadvertently purchased an illegal firearm from the felon allegedly making them in the back room.

          1. The people making actual illegal firearms were in Sacramento, and the raided ARES storefront is in Bakersfield. One was a felon, both were illegal aliens. They bought the parts from ARES. Last I checked, “parts” are not “firearms,” and don’t require a background check, so ARES is not liable even if they could/should have known their residency status and/or criminal histories.

            If the ATF wanted only the sales records pertaining directly to the alleged criminals, I’d be OK with that. But they’re going after the list of everyone who bought or may have bought a polymer 80% lower from ARES. That information is irrelevant, and way beyond the scope of the investigation. All it can tell them is that the alleged criminals bought unfinished lowers from ARES, but the narrowly-defined, directly-pertaining records can do that, too.

            It’d be like saying, “This bank was robbed 10 minutes ago. We need to detain and interrogate every single person within a 10-block radius to try to find the culprit(s).” Ummm… no.

            The remaining question is: If the ATF can get a warrant for the sales records pertaining to the suspects – which they could; it would be relevant and within the scope of the investigation – why are they showing so much interest in all those non-suspected people?

            That is what’s fishy about this.

            1. Oh please. Of all the companies selling 80% lowers, why then did they go after a tiny rinky-dink one that also happened to steer buyers to places that could illegally manufacture those 80% lowers into firearms (some of whom were illegals/felons)?

              I can understand some of the commenters getting caught up in the tinfoil hat brigade, but c’mon Sebastian, this is beneath you.

              Nobody is raiding gun shops and compiling lists of people buying 80% lowers because they want to know who’s making firearms in their basement. It would be far easier to look at credit card transactions for things like, I dunno, 80% lowers, or LPKs or barrels etc. And why are they *only* going after this one type of lower, which ATF also happens to claim is manufactured in such a way that makes it a firearm before being turned into a non-firearm? That’s a trick question, because the answer is in the question. You can also look at EP’s ATF determination letter for more clarification ;)

            2. Yep, Ares wasn’t making guns illegally or steering buyers to folks who would – but they were selling 80% lowers that ATF (rightly or wrongly) takes issue with. THAT is why ATF is taking issue with those specific lowers and raided them etc. But ATF can’t even keep track of guns they sell to Mexican drug cartels. And we’re supposed to believe they’re running some grand conspiracy to gather the names and addresses of people building 80% lowers?

    2. While no defender of the BATFE, I do see their point here. Their argument is the molded firearm receiver is, in fact, past the 80 percent point at the time of creation, depending only on the mechanical or chemical bond with the filler plastic to keep it below the 80 percent threshold. And that filler plastic has the knobs and bits of where all of the holes to be drilled already molded with the other plastic filling it around them.

      Metal 80 percent receivers are molded as a single piece. There is no process in a forging to avoid it. In fact, a few years ago the BATFE redefined what “80 percent” constituted for the AR pattern receivers. Most notably, the rule changed to define 80 percent completion as require the fire control group to be the part that receives the effort at finishing. Prior to that, it was other parts of the receiver including the fire control pocket. Some 80 percent metal receivers sold a few years ago now are technically firearms even if not finished because the fire control pockets came milled out (you had to ream/tap the buffer tube, drill FCG holes, bolt catch, etc). Current 80% metals have the FCG pocket as a solid element requiring milling and finishing with all of the other holes ready to go and able to accept parts. Most notably the bolt catch hole and buffer tube. You mill the FCG pocket, drill the grip screw, buffer stop hole, selector detent hole, and the FCG holes. Everything else is finished and ready to go.

      Similar applies with AK pattern receivers. Look at the difference with a flat with all the holes drilled out but not heat treated or bent versus a pre-bent blank, heat treated but no holes at all. Once you’ve bent a flat or drilled one hole into a pre-bent blank, it’s above 80 percent. But you only get one of these characteristics (drilled but flat or bent but solid), not both.

      The basic rule with 80 percents is it required some significant level of effort (10-20 hours) to complete the receiver/frame to 100% functionality. Since the FCG area is the critical piece, that is where you focus your efforts.

      Hence the mistake, I think, on these polymer lowers. Metal 80% requires you to mill out the pocket. It takes time and requires additional tools (a drill and a Dremel at a minimum, a drill press or mill is better). Not something you’re doing in an afternoon without a lot of practice.

      One of these things I could have finished in two hours with a drill press and a milling bit. And it wouldn’t even be hard. An end mill would chew through that stuff like a hot knife through butter. I’d be limited as to how fast I can change drill bits and position the piece in the vise.

      While they may have wanted to make it convenient for the finisher, they wound up destroying the aspect that makes it 80% and that is the work side. And it also doesn’t require a jig, another feature of 80% metal and other polymers that is essential. They’ve removed too many of the finishing hours in these polymers and brought it above the level the BATFE considers “finished” from a completion and time perspective.

      Note they are only going after this “two tone” lower. The single piece molded polymers they seem to be leaving alone (for the moment) since, other than material, they require the same amount of hours and tools the metal ones require (jig, drill press, Dremel, mills, etc).

      1. Um, there is NO “basic rule” on what constitutes a “finished” receiver, versus one that is not a receiver, but is cas close as you can legally get (i.e., what we call an “80%”). CERTAINLY not “10-20 hours”.

        It takes 30 minutes to finish an ATF-approved “80%” AR15 receiver to “complete” (defined by ATF as being able to fire a single shot), IF you have the skills and tools to do it. I’ve watched it done, in a garage.

        It takes LESS THAN 30 minutes to finish an AK flat into a receiver, if you have the jig and a vice. Including set-up time. I’ve done it.

        It takes LESS THAN 15 minutes to turn a featureless piece of exhaust pipe into a Sten receiver that is, according to ATF, 100% complete. With a Dremel tool, hand drill, and hand held files. I’ve done it (Note that a semiauto Sten receiver, as I made, is HARDER to complete than a full automatic one would be, becuase for one, the receiver walls are thicker.)

        No, the cut off point is “ATF says so”. Period.

        1. Yes, that was my point. If they came across a special case, fine. But they ought to go through the rule making process to change the rule in that case.

          1. I agree. I was merely pointing out that the “80 percent” definition involves a certain amount of work and effort and the ATF definition has changed.

            I would much rather see a defined rule of what constitutes “80 percent” for the purposes of the gun/non-gun discussion. The BATFE showing up at my door and asking me to do a background check on a chunk of plastic I bought years ago would tend to be seen as intimidating and little into the whole “ex post facto” territory.

            There’s also a certain amount of stupidity involved here with the company. Advertising legal, unserialized, untraceable “firearms” is begging for trouble as that is not the reason people build their own firearms. And even if it is, why draw attention to the fact and get the ire up of idiots in the Halls of Power? Especially in California with their “ghost gun” BS which is a term I’m sure we’ll be dealing with for years to come.

      2. I have to agree with Geodkyt on this one. It could be argued that even the metal or single-tone unfinished lowers could be finished without a jig, drill press, mills, etc. It’d require more expertise and a very steady hand, but it could be done. (Besides which, EP Armory also sells a “universal jig sticker,” which simply sticks to the lower to show where to drill, in a 3-pack for $10.)

        For these two-tone polymer lowers, the heat and pressure involved in the molding process will fuse the two pieces of plastic together at the molecular level. In other words, the item is all one piece; that off-colored insert can’t just “come out.” The fact that it easily shows where (and where not) to mill is irrelevant. It still requires the same amount of machining to finish. Should it matter that it might take one person only 30 minutes, but someone else several hours to do the same work? If that’s the case, all “80%” polymer lowers should be illegal; like you said, they’re faster and easier to mill than aluminum ones.

        Also remember that the term “readily restorable” (to fully-automatic fire) is used in both NFA’34 and GCA’68 but is not defined in either Act, and that ATF’s working definition of “readily restorable” could be anything, up-to-and-including giving the entire Firearms Technology Branch “expert” staff eight hours in a fully-loaded machine shop to make it fire full-auto.

        Like I said, I have to agree with Geodkyt. The cut-off point between “firearm” and “non-firearm” – just like the definition of “readily restorable” – is wherever the ATF examiner says it is. In the case of “80% lowers” however, they’ve already defined it, and this case against EP Armory and ARES will probably fall apart once it comes out that ATF has the manufacturing process backwards.

  2. Why would anyone go through the trouble of injection molding a lower, only to mill out part and injection mold more plastic into it? Isn’t it more likely that it was injection molded without that pocket, or as they claim, that the pocket was molded first and then the rest of the lower molded around it?

    Oh, and you’d think a YouTube video of the manufacturing process would be enough to back the ATF down if they’re manufacturing them as they say they are. I guess there’s a concern about disclosing proprietary processes, but getting shut down and having your junk seized doesn’t exactly help business either.

    FWIW TTAG has been following (and hyping) this recently, and there’s a lot more going on than just those lowers:

    Allegations of illegal alien felons making guns for customers and such. It’s not about 80% lowers, although it may be about that particular design – in addition to a bunch of other stuff. Some might conclude that Ares went out of their seeking attention with their big “Unserialized. No Registration. Legal.” AR-15 sign, and they got exactly that in the form of undercover officers and informants poking around. Big surprise there.

    Who knows what will happen, but it’s good TV.

    1. Those illegal alien felons were a completely different shop. They got their lowers from ARES, but nothing in those allegations implicate ARES in any build party. It’s a fishing expedition on steroids.

      1. You’re right – they updated the TTAG post to clarify that the felons making guns wasn’t part of the Ares investigation – it seems Ares is only in hot water for selling the 80% lowers that ATF thinks are more than 80%.

        But that’s still no reason for people to jump to the absurd conclusion that ATF is building a massive database of people buying 80% lowers.

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