Question regarding ITAR and gunsmiths

[grampajack]

Why does gunsmithing not fall under "Defense Services" instead of "Manufacturing?"

It's clearly a service based industry, at least as far as traditional gunsmithing is concerned. I'm not talking about "custom gunsmiths" who are indeed manufacturers, such as guys like Turnbull, Wilson, Les Baer, etc. I'm talking a bout ye olde gunsmith's shop, where the smith works exclusively with items brought to him by the customer.

Calling a traditional gunsmith a manufacturer seems like putting a car mechanic on the level of GM.

For those not familiar with the definition of "Defense Service" here it is:

§ 120.9 Defense service.
(a)Defense service means:

(1) The furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles;

(2) The furnishing to foreign persons of any technical data controlled under this subchapter (see § 120.10), whether in the United States or abroad; or

(3) Military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice. (See also § 124.1.)

Obviously, the moral of the story is that defense services are only such if the client is a foreigner. Furthermore, there's no actual definition of "Manufacturer" that I could find in any of the actual regulations (not saying there isn't one, but it's well hidden if there is).

So am I the only one to ask this, or has this been addressed already? It just seems like the powers that be are making stuff up to reclassify services as manufacturing in order to force domestic service providers, like gunsmiths, to cough up their lunch money. If classified as a defense service, smiths would only be prohibited from providing their services to non-citizens if they didn't want to pay the 2700 dollars a year, which is a no brainer since non-citizens aren't supposed to be buying guns anyways.

 

[buckhorn_cortez]

...which is a no brainer since non-citizens aren't supposed to be buying guns anyways.

Not according to the BATF.

Question:

May a nonimmigrant alien who has been admitted to the United States under a nonimmigrant visa and who falls within an exception, purchase a firearm or ammunition in the United States?

Answer:

A nonimmigrant alien who has established residency in a State may purchase and take possession of a firearm from an unlicensed person, provided the buyer and seller are residents of the same State, and no other State or local law prohibits the transaction. A nonimmigrant alien with residency in a State may purchase a firearm from a licensee, provided the sale complies with all applicable laws and regulations.

[18 U.S.C. 922(a)(9); 27 CFR 478.29a]

 

[grampajack]

Not according to the BATF.

Question:


Answer:

The ITAR definition of a citizen is different than the fed's. If they're a legal resident then they don't count as a foreigner under ITAR, even if they're not a "full" citizen, and even if they're technically still a citizen of a foreign government. At least that's how I understand it.

I should probably just say that if it's legal for someone to own a gun in the US, then under ITAR it's probably okay to provide them whatever service is in question. But that's only my understanding, so take it with a grain of salt.

My point is that if gunsmithing is deemed to be a service, as it damned well should be, then it's no burden for gunsmiths to preclude service to non citizens as defined by ITAR, in which case there would be no need for them to register. Does that make sense?

What I'm trying to figure out is if anyone has come at it from this angle yet, and what the response was. In my estimation, a gunsmith assists his clients by repairing and assembling firearms. That's taken straight out of the ITAR definition for "defense service."

And I did confirm that there is no definition whatsoever for "manufacturing" in any of the actual legislation.

 

[buckhorn_cortez]

The ITAR definition of a citizen is different than the fed's.

I'm not sure I understand this statement. "ITAR" is International Traffic in Arms Regulations administered by the Directorate of Defense Trade Controls (DDTC) at the State Department. ITAR (regulations) are "the feds" since it is a United States Government regulation administered by the State Department.

The only person that could provide accurate answers to your questions or clarify the regulations for you would be a lawyer who is a specialist in assisting US companies with ITAR issues. In the end, it doesn't matter what you think or I think. It is the regulation interpretation by the DDTC that counts - and, if you don't like their answer, a ruling in a federal court on the issue.

 

[buckhorn_cortez]

The ITAR Part 120

§120.15 U.S. person.
U.S. person means a person (as defined in §120.14 of this part) who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20)...

8 USC 1101(a)(20)

(20)
The term “lawfully admitted for permanent residence” means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.

So the ITAR definition of a "U.S. person" is from a United States Code of Federal Regulations (CFR) and it is not different from any other definition used by the US government. If you are not a citizen of the US, but have been "lawfully admitted for permanent residence" - then you are considered a "U.S. person."

This is why I'm not sure of the point you're trying to make.

 

[grampajack]

The ITAR Part 120



8 USC 1101(a)(20)


So the ITAR definition of a "U.S. person" is from a United States Code of Federal Regulations (CFR) and it is not different from any other definition used by the US government. If you are not a citizen of the US, but have been "lawfully admitted for permanent residence" - then you are considered a "U.S. person."

This is why I'm not sure of the point you're trying to make.

That was the terminology I was looking for. Basically what I'm trying to point out is that any person who can legally own a gun is a "US person" as far as ITAR is concerned, and therefore one can provide "Defense Services" to them without having to register. Thus, if a gunsmith were to be deemed to be a service provider instead of a manufacturer, they would NOT have to register with the DDTC and could still continue to operate as before.

My question is if anyone has already approached it from this angle, and if so, what the response of the DDTC was.

 

[Frank Ettin]

.......My question is if anyone has already approached it from this angle, and if so, what the response of the DDTC was.

ITAR is a highly technical and extravagantly non-intuitive regulatory scheme. Questions like this are for qualified subject matter experts. If a bona fide expert wants to respond he can send me a PM, and I'll consider re-opening the thread.