EP Armory 80% poly lower update

tepin said:

Unfortunately, "readily converted" means whatever the ATF wants it to.

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And therein lies the problem.

JRH6856 said:

wildbill, I think that assessment is on target. Also, it is a very neat trap that EP and Ares have sprung here. Makes me wonder if it was planned.

So where do you think this might go? Might we wind up with a ruling that parts must be assembled to a certain point of functionality before the assembly (and not any individual part) is considered a firearm?

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I don't think it was meant to be a trap, it's just turning out that way. And the "readily convertible" ambiguity is something the BATFE may wish to keep out of the courts now that the "arbitrary and capricious" rulings seem to be coming.

These cases lead me to believe the ATF has something against polymer ar15s.

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I don't know about all polymer lowers but they do have an issue with polymer lowers that have a the fire control cavity injected in a secondary operation. I think the key concern is that the white core can be pried away from the receiver body leaving the injected shape for the fire control cavity.

As seen on Youtube:
https://www.youtube.com/watch?v=XDmFUz-ceVM&list=WL1KoDNOW5uIBfV3z0uhlLPPOJ1WXxt7HI
Minute 5 is where he starts prying out the white material.

I really don't see anything new in EP Armory's statement. Basically they said what we already know. The key is if they submitted their design for prior approval. I think it is quite obvious by now that EP didn't. If they had an approval letter from the ATF it would have come out by now. Also, I've seen them duck the question when asked by people in build threads on other forums. Someone will ask if they have an approval letter from the ATF for their lower and the EP rep won't say yes or no but instead says something to imply the design in legal.

At this point, it doesn't matter if someone can pry out some of the remnants of the cavity "biscuit".
Even after the "biscuit" is pried out, the milling operation is not yet complete. The ridges are still left to be filled or milled out.
It's obvious from the records posted on the law firm website that they did submit a sample. The BATFE decided that it was a firearm, it's just that they used a flawed analysis of whether the chicken or the egg came first as to the fire control cavity.
The response from EP contained detail, including the part about how the "biscuits" are left to cure for a few days before the receiver is formed around it using a similar composition material.
Bottom line, EP did not have a letter of determination that the lower was not a firearm. The proof of this is the fact that they have not posted any such document on the law firm website. There is no reason to hold back such a document.
What EP did was proceed forward without the non-firearm determination, likely on the advice of counsel.
They have stood up to the BATFE and the BATFE doesn't like it when they are challenged, they don't like it when someone decides they don't want to follow the established procedures, even if there is no lawful basis for the BATFE to require a letter of determination before selling a product.
Now it is going to be quietly settled or it is going to be "United States of America v EP Armory, et al"

It's obvious from the records posted on the law firm website that they did submit a sample. The BATFE decided that it was a firearm, it's just that they used a flawed analysis of whether the chicken or the egg came first as to the fire control cavity.

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But it is not obvious that they submitted the sample prior to going into production and sale. If they did, it doesn't look like they waited for the determination before starting production, and if they went into production after receiving the determination, they do have a problem.

Actually, it is obvious from the dates on the letters to and from EP and BATFE that they did not wait for a determination. The letter from EP is from July 2013 and the BATFE letter that says "it's a firearm" is dated February 2014.
What is not so obvious is there was likely some off record communication that led to the submission of the sample that was found to be a firearm. The recent date of the BATFE rejection of a non-firearm status is timely to the current removal of the products from sale.
What is obvious is the BATFE is hanging their hat on the premise the "biscuit" came after the lower was formed.
Once it is proven in a court of law that this was not the way the part came to be, the BATFE will have to back down or move the goalposts and start ranting about some other criteria heretofore not cited such as the fact the plastics are two different colors.
And that is what takes it to the arbitrary and capricious stage.

At this point, it doesn't matter if someone can pry out some of the remnants of the cavity "biscuit".
Even after the "biscuit" is pried out, the milling operation is not yet complete. The ridges are still left to be filled or milled out.

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Once the insert is pried out all one has to do is file small ridges down to a flat service. The profile, corners, depth, and bottom radii of the cavity is set by injection process. That is completely different that having to machine a cavity from scratch in a block of continuous material. THAT is the issue at hand.

Actually, it is obvious from the dates on the letters to and from EP and BATFE that they did not wait for a determination. The letter from EP is from July 2013 and the BATFE letter that says "it's a firearm" is dated February 2014.

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Yes, it is obvious they didn't wait for a determination to start selling they product. This is EP Lowers introduction of their product to Calguns on July 1st, 2013:

http://www.calguns.net/calgunforum/showthread.php?t=786883

The first question is: Do you have a determination letter from the ATF? EP Lowers dodges the question and then when asked directly for a yes or no answer doesn't respond.

Maybe they thought 'tis better to seek forgiveness than permission. Or, as someone else said, "Hope" is not a good business plan.

I don't think BATF is necessarily "hanging its hat" on the manufacturing process. They are building this case on it, but the case is that a firearm was manufactured and then plugged. They may be hanging their hat on the readily convertible criteria that does not require a firearm be made, just that what is made be readily convertible to a firearm.

IOW, the evaluated what they received as a deactivated firearm which had been manufactured without a license.


Perhaps with that determination, they stopped evaluating.

If that is an incorrect evaluation, they can evaluate further to determine whether or not the plugged non-firearm is readily convertible. As JSH1 suggests, that is a good question and may or may not be arbitrary and capricious. I guess we'll see.

I see what you did sir, you made a receiver then filled the rest in to make it into this square hunk of metal/plastic. OBVIOUSLY you are manufacturing firearms. I don't care if you are calling a toaster.

Honestly how much of our country's money is being hemorrhaged over this stuff and being used against us? If they'd just legalize the Constitution we might actually be able to start paying some of this national debt off. I know, crazy talk.

Also, see signature.

BATF just does what its told. WE need to stop electing the idiots that tell them to do these things.

See this thread on the latest idiocy.

I don't know about all polymer lowers but they do have an issue with polymer lowers that have a the fire control cavity injected in a secondary operation. I think the key concern is that the white core can be pried away from the receiver body leaving the injected shape for the fire control cavity.

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They shut cav arms down for months nearly putting them out of business. They were selling actual firearms not 80% lowers and the ATF decided after 10 years that their process might be illegal so they shut them down and seized their equipment. Then the ATF decided nothing illegal was going on. So yeah I'm going to go with they have something against poly lowers.

The totality of these actions by BATFE is that they believe the whole "80%" lower thing, combined with the 3D printing coming online; the whole unserialized thing is about to go mainstream, they are trying to quash it before it gets too prevalent.
I recently saw an article about someone making the lower from plywood.

Yes, they are being kind enough to spell out the areas they deem as having gone too far.
The only solution at this point is for EP to make the thing homogenous, eliminate the nubs that locate the holes and start supplying a jig made out of the same material to keep the cost down. This could be molded over the outside of the lower. This would be acceptable since the in the original flawed analysis they decided that you can't "back fill" the fire control cavity; therefore once the lower is cast, it is a "non-firearm" if it has a homogenous filled cavity. The fact that later on an additional layer is added that has all of the points located that can be peeled away afterwards would have nothing to do with the fact that it is still a "non-firearm".
But the amount of labor and skill involved is going to have to increase and the cost will likely go up a little more.
What is left in the legal case is how to resolve the arbitrary nature of how these determinations are made, not so much as to give guidance to EP, but to make sure this doesn't happen to the next person/entity.
One issue that appears to be a non-issue now is the fact that it isn't metal.
The BATFE letter is careful not to make any statements that cause problems for other manufacturers who purchase these types of lowers (metal).
I do see an issue in the letter. They are now saying that the reason they classified it as a firearm in the last letter due to the supposed steps in manufacture (which was the wrong supposition), doesn't matter anyway. Thusly, the letter was meaningless as they are saying they can hold back any other reasons for rejections for a later date. That is capricious. I think EP is owed money damages due to the defective analysis of the sample they submitted.
One last thing: There is no date on this BATFE letter.

Much better analysis by the ATF

The fact that later on an additional layer is added that has all of the points located that can be peeled away afterwards would have nothing to do with the fact that it is still a "non-firearm".

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Unless this was determined to be another form of "indexing". ISTR in another case, it was determined that the jig/template had to be completely separate, but I could easily be wrong on this.

I see it as the same thing as a decal wrapped around a sten tube

Now if only BATF sees it that way.

Which brings us back to the a&c argument. They should have to publish the guidelines instead of having to play cat and mouse. The "clarification" letter we are now discussing is proof of the guessing games.

I guess I just don't see any guessing games going on by BATF. They seem to be using a consistent criteria, even if it is unpublished. The guessing seems to be coming from folks trying to get as close to the unknown line as possible without crossing it.

Based on what I have seen so far (which is not exhaustive) I suspect BATF may be able to demonstrate sufficient consistency in criteria to avoid a&c, but they may not be able to avoid publishing the criteria they use to avoid it.

And I suspect they would rather not publish the criteria so that manufturers will have to contact them for a determination giving them some record of who is making what. Whait a published criteria, BATF will actually have to get out and work harder to know who is making partially complete receiver blanks.

Something fundamental to consider here is the difference between a LAW and regulatory power given an agency under that law.

It is pretty unusual to see a law written so specifically as our National Firearms Act's rules on barrel length for rifles or shotguns. There they wrote two specific numbers and said "this is the law." For lots of other things -- such as silencers as a great example -- the law outlaws, limits, or regulates something but then leaves to a regulatory agency the duty to define, decide, and enforce what is or isn't covered by that law.

So, the law says that a shoulder fired, rifled-barrel firearm is a rifle, and if it has a barrel ANY AMOUNT less than 16" then it is an NFA-regulated firearm. Period. No leeway. And that's ok, in so far as the items in question are pretty clearly a binary "IS/ISN'T" thing. (More or less...but if you add a muzzle break...?)

Silencers are regulated too. But what is a silencer? Any tube on the front of a gun? Anything at all that makes a gun quieter? How much quieter? Etc. The ATF has to interpret that law and decide that yes it's any amount of reduction, but no just a bare tube doesn't meet the spirit of the restriction, and, well...no even if you make the barrel 40" long JUST so it will be quieter, we aren't going to call that a silencer, etc., etc., and other details like that.

This is an inherent function of trying to write laws that place concrete limits on all the possible permutations of human ingenuity and design. As we see so often with the NFA (again), Congress writes a concrete law that says X is regulated and years later someone invents something that is not quite just like X but works just like X and without an agency with some ability to make determinations and regulations, the law wouldn't be flexible enough to deal with that. (I'm talking to YOU, Mr. Sig arm brace and Mr. 3MR trigger! )

So, no, the BATFE probably doesn't at all want to publish what will be seen as an eternally binding document defining EXACTLY what ISN'T a firearm, because it will have to be either so restrictive as to cause great disruption of the status quo or tomorrow someone will have found a work-around that meets the last exacting letter of that determination document but is obviously and completely at odds with the whole concept being enforced.

Now...I don't know that I really have a problem with the BATFE being backed into a corner that way and forced to write a technical code that can be pointed to as carte blanche to do anything that comes right up to the knife-edged line of the rule.

I say that sunshine is the best disinfectant. Let's cut the guessing games. Any other regulatory agency publishes a NPRM and follows the administrative procedures act along with several other regulatory acts; they define specifically what they are trying to regulate; how they are trying to regulate it and finally why they are trying to regulate it.
They it goes out for a public comment period where people that care can put in their 2 cents. Once that period has passed, they publish a rule, the rule includes all of the discussion which shows the original intent. This is so that later the intent can't change. This is what need to take place in this instance.