Thursday, September 18, 2014

Owning an SBR - Part 2: Complying with Federal, State and Local Regulations

The National Firearms Act of 1934, in conjunction with Title II of the Gun Control Act of 1986, regulates the ownership of certain firearms, including Short Barrel Rifles ("SBR").  A Short Barrel Rifle is defined as any rifle having barrel length of under 16 inches, as measured from the face of the closed bolt to the muzzle, and/or having an overall length of under 26 inches.

This is the story of how and why Kelsey & Trask, P.C. Partner and Holdover Consulting, LLC Principal Matthew Trask legally obtained an SBR.  Although this process was specific to the acquisition of an SBR, the process would be similar for any other Title II firearm.  To read how Matthew chose his SBR read our previous post: Owning an SBR - Part 1: Finding the right SBR for me.

Owning an SBR - Part 2: Complying with Federal, State and Local Regulations

To convert our DF94 into a legally owned SBR, we would next need to obtain the proper tax stamp.  Obtaining a tax stamp to own/manufacture a Title II firearm is theoretically straightforward, although a prospective SBR owner should be aware of a few regulatory considerations at the Federal, State and Local levels:

Federal Regulatory Considerations:  

The National Firearms Act imposes a statutory excise tax on the manufacture and transfer of certain firearms and mandates the registration of those firearms.  These firearms, often referred to as “Title II Firearms” or “NFA Firearms” fall into one of six categories:

a. Short Barrel Rifles
b. Short Barrel Shotguns
c. Destructive Devices
d. Machine Guns
e. Suppressors/Silencers
f. Any Other Weapons (AOW)

The manufacture of any of these types of firearms requires the purchaser or manufacturer to pay the requisite excise tax of $200.00 (or $5.00, for certain AOW’s transferred on a Form 4).  Additionally some manufacture or transfer do not require the payment of the excise tax – only registration – in certain cases, such as manufacture by a federal licensee who has paid a Special Occupational Tax or transfers pursuant to the administration of an estate.  Generally, if a nonlicensee seeks to acquire a Title II firearm, either by manufacture or acquisition from a Title II dealer, the nonlicensee will be required to pay the $200 excise tax.  Submission of registration documents is required in all cases.

The federal government also prohibits the manufacture for civilian sale of new machine guns, and the transfer of any machine gun which was not registered prior to 1986.  As before, there are some very narrow exceptions to this rule, and it is best to contact an attorney or knowledgeable NFA dealer if you are considering the purchase of a machine gun.

State Regulatory Considerations:  

Some states will limit or restrict the possession of firearms regulated by the National Firearms Act under state law.  Some states laws will ban the possession of certain NFA items outright, while other laws will ban the possession of certain NFA firearms indirectly.

For example, legislation in Massachusetts bans the possession of suppressors outright.  Short-barrel shotguns are not specifically banned, but Massachusetts does prohibit the possession of a “Sawed Off Shotgun” (a weapon, made from a shotgun that has a barrel length of less than 18 inches).  The sawed-off shotgun prohibition does not prevent the registration of all SBS’s; but it is illegal to manufacture a SBS and register it in MA on a Form 1.  A purchaser must register an SBS in Massachusetts on a Form 4, and the SBS must have originated from the original manufacturer as a Title II firearm.

In Massachusetts, machine guns are legal, but anyone seeking to obtain a machine gun must hold a MA License to Possess a Machine Gun issued by the Chief Law Enforcement Officer of the purchaser’s town of residence.  AOW’s and Destructive Devices are not specifically prohibited in MA, although a prospective buyer would need to be conversant on Massachusetts laws regarding (a) The MA Assault Weapons Ban; (b) MA laws regarding disguised firearms; and (c) Massachusetts laws regarding the possession of explosives or “infernal machines”.

Before purchasing a Title II firearm or attempting to obtain federal approval, ensure that such firearm will not violate your state's laws.

Local Regulatory Considerations:

As of September 14, 2014, if a Title II firearm is to be acquired by an individual (and not a corporation, trust, or other legal entity), the individual must obtain a law enforcement certification on the Form 1 or Form 4, as appropriate.  Such certification, by federal law, is not intended to be “discretionary” by the CLEO, but many law enforcement officers refuse to sign the certification, thereby preventing the purchaser from obtaining a Title II firearm.  It should be noted that presently purchases of a Title II firearm by a trust, corporation or LLC do not require (a) CLEO certification; (b) fingerprinting of the intended possessor of the firearm; and (c) the submission of photographs to the ATF.

Assuming that you have met all Federal, State and Local requirements, you may now begin the process to make and register your NFA firearm with the following important notes:

NOTE on Form 1:  In the case of registration on an ATF Form 1 (Application to Make and Register a Firearm), you MUST have the approved Form 1 back from ATF with a cancelled tax stamp BEFORE you manufacture your Title II Firearm.

NOTE on Form 4:  In the case of registration on an ATF Form 4 (Application for Tax Paid Transfer and Registration of Firearm), you MUST have the approved Form 4 back from ATF with a cancelled tax stamp BEFORE you take possession of your Title II Firearm.

Essentially, the NFA registration process is done before a firearm is manufacturer or changes hands. Transferring a Title II firearm without an approved Form 4, or manufacturing a Title II firearm without an approved Form 1 is a violation of federal law.

Therefore, although you may be in possession of certain components for your NFA firearm (a lower receiver or host gun for a Title II conversion), that firearm must remain in Title I configuration until you receive your approved registration documents.  Since the Form 1 will request that you provide certain information regarding the firearm, such as overall length, barrel length and caliber, it will be necessary for you to do a bit of research and planning to determine the specifications of the firearm you intend to build.  Remember that the dimensions disclosed in the Form 1 are for the configuration of the final Title II firearm.

Our Form 1 experience:

The appropriate document for manufacturing an NFA firearm from an existing Title I firearm is ATF Form 1 (5320.1).  The form can be downloaded in .pdf form from the ATF’s website, or completed electronically on via the ATF’s eForms system.  If possible, I highly recommend utilizing the ATF eForms system.  Electronically-submitted Form 1’s have been approved in as little as 25 days, while “hard copy” forms take more than six months and 8-12 month waits are not uncommon.

We submitted and Electronic Form 1 for manufacture (conversion) of our SBR, and received approval in thirty-nine days.

The completion of the Form 1 itself is fairly straightforward.  However, forgetting to attach certain documentation will result in the rejection of your Form 1.  In Massachusetts, this additional documentation which should be filed as part of your Form 1 is:

1. All Applications - Copy of your License to Carry Firearms (LTC)
2. If an Individual – 2”x2” photograph
3. If an Individual – Completed Fingerprint Cards, in duplicate
4. If an Individual – Completed Law Enforcement Certification
5. If a Corporation or Trust – Copy of Trust or Articles of Organization
6. All applications – Payment of $200.00

If you would like any assistance regarding the completion of your Form 1 or guidance on the purchase and registration of a Title II firearm, please contact Attorney Matthew Trask at 508.655.5980.

1 comment:

  1. Damn. Registered for the eForms website and 5320.1 (Form 1) is only available for "legal entities" now - not individuals. The "Intended Use" states it and even if you click "Next", and try to click the "Tax Paid" radio button, you can see the "Individual" radio button grayed-out (non-selectable). BS!


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