National Firearms Act For Beginners: Using Form 1 to Manufacture an NFA Item

When an individual or a trust/corporation (read about the Silencer Shop Single Shot Trust HERE) purchases an existing NFA-regulated “firearm” (silencer, short-barreled rifle, short-barreled shotgun, “any other weapon,” destructive device, or machine gun), the application for transfer is done via ATF Form 4. When an individual or a trust/corporation wants to create an NFA item, whether it’s as simple as a minor configuration change or as complicated as manufacturing one from scratch, the application for approval to do so is ATF Form 1.

Even if it’s nothing more than bolting a vertical forward grip onto a GLOCK, thereby turning it into an AOW, the Form 1 applicant becomes the “manufacturer” of that new, NFA-regulated firearm. But what does that mean? What does the manufacturer have to do? What’s this about engraving? Glad you asked. . .

We should be clear about two basic things right off the bat.

• First, you absolutely cannot legally configure a firearm into an NFA-restricted format — technically you can’t even possess the necessary parts to assemble an NFA firearm, but more on “constructive possession” later — or create parts for a silencer/suppressor/firearm muffler prior to the approval of your Form 1.
• Second, your existing firearm does not become an SBR/SBS/AOW immediately upon approval of your Form 1. The 5320.1, simply referred to as “Form 1,” is mainly just permission to manufacture/configure it as such and is proof of your tax payment for that privilege. If you don’t follow through with the build, your firearm remains a standard firearm. In fact, you can also revert it to a standard firearm and sell it as such at any point in the future. (There’s a form to inform ATF of this so they remove it from the registry)

Constructive Possession

As we’ve seen in the whole SIG/SB Tactical pistol brace debacle, “intent” is crucial with the ATF and the NFA. Nothing proves this more than what is referred to as “constructive possession.” Simply put, a violation of the National Firearms Act — in this example, possession of an unregistered NFA item (10 years Federal prison) — doesn’t only happen if you configure an NFA firearm without approval. As far as the ATF is concerned, it happens if you merely possess the parts required to assemble such a firearm prior to Form 1 approval.

Frankly, this is such a horrifying, “pre-crime” type of garbage law or ruling that I can’t imagine any lawyer smart enough to tie his/her own shoes couldn’t win acquittal for a client who didn’t actually configure a restricted item.

For instance, I own a bunch of rifles. I also own an angle grinder and I’m sure there’s a hacksaw in the garage somewhere. Constructive possession of SBRs? Give me a break. While the law hasn’t gone quite that far, it’s still pretty much full you-know-what since owning, for instance, an AR-15 rifle while at the same time owning a pistol-length upper but no dedicated pistol lower is constructive possession. Another example, straight from one of the ATF’s FAQ pages:

Q: If a person has a pistol and an attachable shoulder stock, does this constitute possession of an NFA firearm?

A: Yes […]

Note that doesn’t say the stock is connected to the pistol. It’s possession. It’s the ability to create an NFA firearm. However, a clear exception is made if you own both pistols and rifles and parts happen to be interchangeable (e.g. an AR-15 pistol and an AR-15 rifle). In this case, you’re trusted not to mix-match the parts in the wrong way.

This may seem like I’ve gone off on a rant or tangent here, but it’s directly relevant to filling out a Form 1, because…

The Planning Phase

To “manufacture” an NFA firearm, which includes a silencer, you must enter information about the firearm. That is, physical information about the resulting NFA firearm, not about whatever the current state of the firearm is. Caliber, barrel length, overall length…

No, you may not mock up the firearm to figure out what the overall length is going to be when you slap a stock on your pistol or buy a pistol-length upper, or swap or cut down the barrel on your rifle or shotgun. You may not create any of the parts for the silencer you plan to build. Yes, you are required to provide length and other information in all of these cases prior to approval. Yes, if your plan is to create an AR-15 SBR you must specify caliber and barrel length and overall length (this does not permanently stick you with that configuration, though, don’t worry).

Regarding overall length, since this is the most confusing figure to nail down, there is one primary thing to keep in mind: Overall length is in as-fired configuration. So if you have a folding stock or a telescoping stock, it’s the overall length with it extended into firing position. Most people take this to mean stock unfolded and fully extended (AKA the gun’s maximum length).

In the example above, which is the Form 1 (which was approved) to turn the Scorpion Evo pistol I purchased a few months ago into an SBR, I simply had to take some measurements and make an educated guess on what the actual, as-assembled overall length would be once the stock was added. There’s no [legal] way around this.

I measured the pistol from muzzle to the end of the AR-15 buffer tube adapter. I used manufacturer and 3rd party information for my stock of choice, the DoubleStar AR-15 SOCOM Stock (in standard length flavor), to calculate how much length that was going to add to the mix when installed and fully extended.

For an AR-15 rifle that’s going to receive a shorty upper once the Form 1 comes back, you’d basically take current overall length and subtract the difference in barrel length between current and SBR.

Again, basically, mind “constructive possession” BS and don’t assemble anything before approval. If that means you’re eyeballing or estimating overall length, so be it. But, yes, in many cases you do have to decide on the caliber of your build, the barrel length of your build, etc., before you can even legally acquire the parts for the build.

Filling and Filing the Form

A trust is the way to go. Read THIS ARTICLE on Silencer Shop’s Single Shot Trust for information on that option compared to filing as an individual, corporation, or with a standard NFA trust.

Either way, it’s filled out with your information (whether trust or individual, but there’s a whole lot of fields you leave blank if it’s a trust), the information on the firearm you intend to manufacture, the type of application, your signature, date, etc. Oh, and your $200 in the form of a check if you’re mailing it in or just pay via credit card during the e-process.

Ah, yes, and in field 4(i) you must “State Why You Intend To Make Firearm.” Most people simply enter, “For any and all legal uses.” In the photo above, you can see I wrote, “Increase stability & accuracy by adding a shoulder stock.” Why did I put that instead? No idea. I guess that’s just the boiled-down, basic, actual reason why I intended to make an SBR of my Scorpion pistol, so that’s what I put.

There are probably infinite responses that would still lead to approval, but the idea of “any and all legal uses” is to avoid accidently limiting oneself. For instance, if the Form 1 is approval of your stated intention, could you be in violation of the law if you put “only for sanctioned competition use” and then shot the firearm outside of that activity? No idea. But if vague and broad gets approved — and it does — I think it’s fair to recommend that your answer remains vague and broad.

After Approval

First, if there was a mistake on your application and you were denied for some reason, the ATF will tell you why. Fix the issue and turn the paperwork back around as soon as you can. It will not go back to the beginning of the queue. Even a year or two ago when wait times on approvals were approaching a year, turnaround on re-submissions for error fixing was only a couple of weeks. So don’t get too dejected.

Second, once approved, keep your approval documentation. More on this in the “Just Sayin'” section below.

When approved, but ideally before actually assembling your NFA toy, you’ll need to do some engraving. Actually, I should probably say, “have some engraving done” (unless you’re much braver than me). Regardless, the engraving requirement differs if you’re legitimately manufacturing the firearm or silencer from scratch (no pre-existing, serialized “firearm” existed), or if you’re changing the configuration of an existing item to turn it into an NFA firearm (e.g. adding a stock to a pistol or cutting down or replacing the barrel of a rifle with a sub-16″ one).

The Gun Control Act stipulates that a firearm must have certain information engraved/stamped/cast into it:

• Serial Number: On frame or receiver. In metal. Minimum depth of 0.003″. Minimum print size no smaller than 1/16″. Must be conspicuously placed, meaning “unobstructed from plain view.”
• Additional Information: Includes the model (if such designation has been made), the caliber or gauge, the manufacturer’s name, and the city and state (two-letter state abbreviation is okay [glad I don’t spell “okay,” “OK”]) of the manufacturer. This information can go on the frame, receiver, or barrel. No requirement that it’s on metal. Minimum depth of 0.003″. No minimum print size required other than it obviously has to be legible to be “conspicuous.”

If you’re making your item, then all of these things are required. If you’re reconfiguring an existing firearm, you or your trust is considered to be the manufacturer of the resulting NFA firearm. However, since it’s an existing firearm it already has a serial number on it and it likely has a model designation and a caliber designation as well. There’s no need to repeat information already on it if it’s still valid. You’re now the manufacturer, though, so your name or your trust’s name goes on there along with your/your trust’s location:

Ugh. When I made my trust, SBRs and SBSs weren’t legal in Washington! I never considered I’d be doing a Form 1. Form 4 for transfers of existing NFA items doesn’t require any engraving by the purchaser, of course, since all of the necessary engraving is already on there. Had I been blessed with more foresight, I would have chosen a significantly shorter trust name instead of just agreeing to the default under the assumption that it didn’t matter to me. I mean, it can be anything. “JMS Arms” would have been just dandy. Live and learn. If you don’t have a trust yet, keep it short!

A local engraving business — you know, they do trophies, gifts, plaques, personalized crap, etc — handled the engraving part of the show. I was hoping to put it somewhere slightly more discreet on the ol’ Scorp, such as on the angled strip in the photo above that runs left-to-right and crosses the top of the safety, but the engraver couldn’t do it on that surface.

While, yes, the information could go on the barrel, in the case of the Scorp the barrel is far too short to leave enough for an unobstructed-from-plain-view engraving. In the case of an AR, you’d be stuck with that upper/barrel combo or would have to engrave others. Better to put it on the receiver somewhere. I’ve heard of folks doing it inside of the magwell flare on an AR, on the bottom of an integrated trigger guard, on the front of the magwell, etc.

As mentioned previously, once you have Form 1 approval, an existing firearm still doesn’t become an NFA item unless it’s configured it as such. Therefore, if your state permits private firearm transfers then there’s no issue leaving the firearm with an engraving business.

You can obviously also just provide them with the stripped receiver instead of a functional firearm, which is what I did with the Scorpion — it was just an empty, plastic shell. Still, due to the new WA State “universal background check” law that bans private transfers (defined very broadly), I’m sure I chose to stay right by the engraver’s side the entire time to maintain legal control over the piece of plastic.

W00t!

Now you can build your NFA item. Enjoy.

Changing the Configuration Stated on Your Form 1

So, on the Form 1 you received approval to assemble or manufacture a firearm in a very specific configuration. Specific barrel length, overall length, and caliber. This doesn’t mean you’re stuck with any of those things. If you want to make a permanent change, you are to notify the ATF in writing (mail them a letter). Information and mailing address is near the bottom of page 2 of the Form 1 application. If you want to make a “temporary” change, no notification is required.

For instance, if you have an AR-15 that’s a registered SBR, you’re welcome to swap uppers and/or stocks around as much as you want. Change calibers, change barrel lengths, change overall lengths, etc. The underlying compliance point that prevents a change from being “permanent” is that you can revert it to Form 1 form. Basically, keep the upper and stock that match your Form 1 description. Or, don’t keep it and mail a 2-sentence letter to the ATF informing it of your new, permanent configuration. No permission or response from the ATF is required.

Same process, by the way, for changing your permanent address within the same state. Just a notification, no permission/approval/response from the ATF required.

Still, Just Sayin’. . .

It’s probably wise not to forget that an NFA item is a highly-regulated and controlled item. For instance, is it owned by you personally or do people exist who aren’t on your trust? If someone else has access to it when it isn’t in your immediate control, that’s a serious felony. And by “has access,” this could simply mean you’re out of the house, your NFA toy is in your safe, but your wife (who isn’t on your trust for some reason or, again, you own it personally) knows the combination to the safe.

As far as “they’re” concerned in this case, the regulated item is as good as in her hands while it’s completely out of yours. Don’t leave it in the back of your car after a range trip and then let a friend borrow the car to run an errand. On the range, other people can shoot your NFA toys, but you must remain in control of them at all times. Practically speaking, this means they stay in your sight.

Additionally, you need to retain your approved application. It “serves as evidence of registration of the NFA firearm in the owner’s name.” You must be able to produce that document for inspection if requested. While there is no legal requirement that you actually have it with you while you’re out with your NFA items, it’s highly suggested by pretty much everyone, including the ATF, that you have a copy of it with you.

Again, from one of the ATF’s FAQ pages: “It is suggested that a photocopy of the approved application be carried by the owner when the weapon is being transported.” I used to have a photocopy of my Form 4s stuffed in the carry pouches of my silencers, copies of Form 1s in my SBRs’ cases or inside of pistol grip or butt stock storage compartments, copies of form 5320.20s (see next paragraph) with the relevant items, etc. I now rely less on photocopies and instead have PDFs of all of my relevant ATF docs in an NFA folder on my phone and have them backed up and easily accessible in the cloud as well.

There’s no restriction on crossing state lines with a silencer or AOW as long as it’s legal wherever you go. For any of the other NFA items, you actually need permission from the ATF to bring it across state lines, no matter how brief that trip may be.

Form 5320.20 must be filled out, and you do have to receive approval, before taking SBRs, SBSs, machine guns, and/or destructive devices out of state. On the bright side, it’s free, it usually takes just 2-3 weeks to receive approval (and a phone call can usually get one processed very quickly in an “emergency”), and it can be valid for up to 364 days.

When I used to live in Washington State, but shot primarily in Idaho and traveled back and forth almost weekly, the 5320.20 for the Scorp would be valid for, as an example, April 1, 2015 to March 31, 2016. For the “Reason for Transportation” field, I kept it vague with a “for recreational and all other legal purposes.” While I had an actual address in Idaho to input for the “Transporting to” field and have chosen simply to use it, I’ve heard that 5320.20s have been approved with vague/broad stated destinations such as “various legal destinations within the state of ___.”

Should You Change Your Mind Entirely . . .

This FAQ lays it out pretty clearly, but if you revert your firearm back to a non-NFA configuration and no longer possess the parts to re-configure it into NFA land, then the firearm is officially no longer subject to the NFA. You can, and likely should, shoot a letter to the ATF to inform them of this, but you don’t legally have to. You can now treat the gun like any other gun, from storage to transport to loaning to selling.

Conclusion

These days approval of an eFiled Form 1 is taking only 3 to 6-ish weeks. So get out there and make yourself an SBR or other NFA item.