Just thinking logically about manufacturing "silencers"

[NeoWeird]

This is going to be short because I have several windows opened and am reading and referencing them as I go. I assume it can't be this easy, so I don't have my hopes up. Here it goes.

Ok, so we all know sound suppressors are illegal in California. We know this because of 12520:

Any person, firm, or corporation who within this state possesses a silencer is guilty of a felony and upon conviction thereof shall be punished by imprisonment in the state prison or by a fine not to exceed ten thousand dollars ($10,000) or by both.

Yep, pretty cut and dry. But 12501 has an interesting portion:

12501. Section 12520 shall not apply to, or affect, any of the following:

...

(c) The manufacture, possession, transportation, or sale or other transfer of silencers to an entity described in subdivision (a) by dealers or manufacturers registered under Chapter 53 (commencing with Section 5801) of Title 26 of the United States Code, and the regulations issued pursuant thereto.

Ok, so 12520 doesn't apply to dealers and manufacturers as per Title 26 of the United States Code. So we go look up Title 26 of the USC to find out that Title 26 is actually the Internal Revenue Code (for those that don't know the ATF USED to fall under control of the IRS but as of this years is under the control of the DOJ - still, all their regulations are under the IRC).

Chapter 53 of Title 26 of the USC, as state above in CPC 12501, covers "machine guns, desctructive devices, and other firearms" and particularly covers their excise tax. We look into section 5801, again as stated above in CPC 12501, and we see that it deals with the tax(es) that MUST be paid by a manufacturer or importer when a firearm is made. Again, for those that don't know, NFA items are considered firearms themselves. Suppressors, even though they alone can NOT be made to fire are still firearms and MUST be serialized by their manufacturer. So even though the IRC states "firearm" it also applies to making a firearm into an SBR/SBS, suppressors, etc.

Well 5822, which deals with who can manufacturer a firearm state this:

No person shall make a firearm unless he has
(a) filed with the Secretary a written application, in duplicate, to make and register the firearm on the form prescribed by the Secretary;

(b) paid any tax payable on the making and such payment is evidenced by the proper stamp affixed to the original application form;

(c) identified the firearm to be made in the application form in such manner as the Secretary may by regulations prescribe;

(d) identified himself in the application form in such manner as the Secretary may by regulations prescribe, except that, if such person is an individual, the identification must include his fingerprints and his photograph; and

(e) obtained the approval of the Secretary to make and register the firearm and the application form shows such approval. Applications shall be denied if the making or possession of the firearm would place the person making the firearm in violation of law.

Ok, so we start at the top and go get the application to make a firearm. The proper form is ATF F 5320.1. Now under manufacturer, since this would not be a transfer but a home built suppressor, we would put our personal information. We fill out the rest of the form using the same method as an AOW or C&R SBR/SBS in California and send off the application.

Assuming the application was processed and approved (let's say we sent along all pertinant information and the ATF agreed - for the sake of this arguement) we have now paid the excise tax to make a suppressor and the ATF has recognized us as the manufacturer of the suppressor and has given us license to manufacturer one suppressor with the identification we submitted.

We are the manufacturer of this suppressor as per Chapter 53 of Title 26 of the United States Code.

Section 12501 specifically exempts us from section 12520 which regulates the use and posession of suppressors in California.

We are now legally, both Federally and on a state level, allowed to manufacture, own, and use this particular suppressor.

Obviously we couldn't use this to transfer a Gemtech or the likes as we would not be the manufacturer and wouldn't be exempt, but when we ourselves are the manufacturer we are exempt.

What do you guys think? It CAN'T be that easy..... can it?

[trinydex]

so uh... you gonna make one?

[freakshow10mm]

You aren't registering as a manufacturer when you submit a Form 1, you are registering the NFA firearm. The registration they are referring to is registering as an SOT, special occupational tax [payer].

Form 1s have been submitted by individuals, trusts, etc in California and the NFA branch will consistently deny them unless they show a DOJ permit.

[adamsreeftank]

...
Assuming the application was processed and approved ...

That's a big if. What makes you think the ATF would approve your application?

[Telperion]

I'd say the answer depends on the following language:

(a) by dealers or manufacturers registered under Chapter 53 (commencing with Section 5801) of Title 26 of the United States Code, and the regulations issued pursuant thereto.
Does commencing mean from section 5801 onwards (as it would be by the dictionary definition)? If it does, then it could be read to include 5822, which applies to individuals making title II firearms. Also, is a person who "makes" a firearm (language in 5822) necessarily a "manufacturer" (language used in 5801 and 12501)?

[freakshow10mm]

Yes, you list your name as the manufacturer on the Form 1.

[NeoWeird]

Seeing as how the CPC says commencing, or starting, I would imagine that its intent is to include subsequent sections that pertain to it as well.

And even if they MEANT for it to be SOTs, I don't see how they can legally distinguish between an SOT that pays a large tax to cover their manufacturing needs and a person who submits the $200 tax to make a one time firearm.

Besides, 5801 specifically starts with:

(a) General rule
On 1st engaging in business and thereafter on or before July 1 of each year, every importer, manufacturer, and dealer in firearms shall pay a special (occupational) tax for each place of business at the following rates:
(1) Importers and manufacturers: $1,000 a year or fraction thereof.
(2) Dealers: $500 a year or fraction thereof.

Except we are not entering into business. So the SOT need not be paid until we enter into business. Since we will not be enteriing into business, we apply for the Form 1 and we are the manufacturers. As long as we produce less than would be considered "infrequently" as per ATF wording, then we need not be licensed, but we are still manufacturers.

So we produce less than #x so we don't need an 07FFL. We don't egage into business so we need not pay the SOT. We are manufacturers, as would recognized by the 5320.1 form. I don't see how California could say manufacturer A is exempt, but manufacturer B is not because they produce less or their goods aren't taxable. You ask me and we could have a HUGE class action suit against them if they did.

ETA: And to address the "why the ATF would"; all it would take is copied portions of the CPC and possibly a letter or two from the DOJ specifically addressing portions of law that are already written.

[NeoWeird]

Oh yeah, and this applies to EVERYONE.

USC 5821:

(a) Rate
There shall be levied, collected, and paid upon the making of a firearm a tax at the rate of $200 for each firearm made.
(b) By whom paid
The tax imposed by subsection (a) of this section shall be paid by the person making the firearm.
(c) Payment
The tax imposed by subsection (a) of this section shall be payable by the stamp prescribed for payment by the Secretary.

The $200 tax stamp you pay for when you fill out the Form 1, for WHATEVER you make, is to cover the excise tax to make a firearm. YOU are the manufacturer and we are paying the same as any other manufacturer. SOT, as I understand it, just covers enmase the multitude of firearms that an 07FFL makes. Again, by making firearm "infrequently" we need not have an 07FFL and by not engaging into business we need not pay the SOT.

At least that's how I understand it.

[freakshow10mm]

The $200 tax stamp you pay for when you fill out the Form 1, for WHATEVER you make, is to cover the excise tax to make a firearm. YOU are the manufacturer and we are paying the same as any other manufacturer.
The point you are missing is the distinction between "the manufacturer" and "a manufacturer". On a Form 1 you are "the manufacturer". However you are not "a manufacturer". I can't navigate the Penal code as well as my own state's code, but I recall the definition of "manufacturer" being per Title 18 USC Ch 44 which is bascially the GCA of 1968 defining the type 07 and type 10 FFLs (firearm and destructive device manufacturers, respectively).

If one were a manufacturer registered under the NFA tax code, that is the reference to a Class 2 manufacturer.

SOT, as I understand it, just covers enmase the multitude of firearms that an 07FFL makes. Again, by making firearm "infrequently" we need not have an 07FFL and by not engaging into business we need not pay the SOT.

At least that's how I understand it.
Pretty much. The SOT allows an importer, dealer, or manufacturer to engage in that type of NFA business for one year, no limit to the number of importations, deals, or manufacturing during that time period. The SOT fee for a Class 3 SOT dealer is $500 yearly. The SOT fee for a Class 1 SOT importer is $1000 ($500 for importers with less that $500,000 in sales previous year). The SOT fee for a Class 2 SOT manufacturer is the same as the Class 1 SOT as well as the reduced tax for less than $500,000 in sales.

As an 07/02 I can make as many machine guns, suppressors, and AOWs as I want to (no SBS or SBR in MI; DD requires type 10 FFL) and for each one day I make an NFA firearm I only need to file a one page Form 2 to register the NFA weapon(s) in the registry.

I'll put my money where my mouth is. Go to Titleii.com and download a Form 1. Fill out for the manufacturing of a suppressor and submit the $200 making tax. If it's approved by the ATF's NFA branch, I'll mail you a check for $200 to pay for your tax. You have my word.

[NeoWeird]

I went to the section you described (Title 18 Chapter 44) and it again used the language of "before entering into business". So I'm not so sure that applies to the topic at hand.

It also goes on to state that a license shall be issued to people eligible for a fee of $50 a year (which isn't too bad even if we had to do this). Now I understand there are HUGE loopholes we have to jump through to get an 07FFL. However, I remember a while back talking with a respectable FFL who was talking to me about the ways it used to be and he wasn't sure if it could still be done. He mentioned a way to get a manufacturer's or dealer's FFL without opening a store front - similar to the way people open kitchen table FFLs.

Would it be possible to get licensed as an 07FFL WITHOUT a store front or business location? The FFL was saying that without a store front you need not get the business license or permits through the state. Could something similar be setup for an 07FFL? Say have a safe in your house where all firearms are stored. You pay the $200 per EACH firearm and make it in your garage or shop, then store them in your safe. The safe, if it were big enough, I am sure would meet or exceed those set out as the security measures to store the firearms.

Though I think that question is getting away from my original topic, I still believe that when we fill out a Form 1 it is on par with an SOT filling out your daily paperowrk (here I thought you had a bound book that was open to inspection at any time - not every day needing to be submitted) and as long as we manufacture the firearm, or can, ourselves we would be exempt.

[BLFD1]

I have the FFL07 application from the U.S. DOJ. I plan on looking into getting it, but haven't had the time to sit down and get a plan and course of action together.

I live in Santa Cruz county and have a shop on my property that I would be using. Does anyone know if that would fly? What steps should be taken first to see if this is even remotely possible??

Sorry for the thread jack :D

[freakshow10mm]

For any FFL you do not need a storefront as long as your home is zoned for business use.

$50 per year is the fee. You pay $150 and the FFL is valid for 3 years. The SOT is $1000 per year to start off with. The ITAR registration for manufacturers (even domestic) is $2250 per year.

You do not need a safe to be an FFL. You do not pay $200 per firearm if you are an SOT. That's the point you are missing. You pay the one time yearly SOT tax of $1000. Now you can make as many NFA weapons you want to until you renew your SOT status next July 1st. An SOT just pays one tax for the year, not per firearm like non SOTs.

There are no security requirements.

These are all federally speaking. California may have more restrictive laws regarding FFL businesses. I'm a home based 07 FFL 02 SOT. The village police station is the next block down the road from me. They know full well I have made and sold several machine guns. They couldn't care less.

The Form 2 must be filed with the ATF within 24 hours of having made an NFA firearm. There can be more than one firearm on a Form 2. That's what the "for each day I make an NFA firearm" referred to. I didn't make any NFA firearms today. No Form 2 filed.

[NeoWeird]

I understand the SOT covers the $200 tax and would not be required. I was suggesting that for someone who wanted to make one or two items, it would be financially more feesable to pay the $200 tax per item instead of the $1000 SOT fee.

So you pay $150 to get the 07FFL. You then pay $200 for each firearm or pay the SOT if you want to make many items. I would imagine a personal manufacturer could get away without having the ITAR but it would probably be required if you went the way of the SOT.

I must admit, I had heard reference to the ITAR before but never looked into it. Since we would not be engaging in ANY business with this, I'd imagine we bypass it all together. I mean, for someone like you who may sell one or two a year, you run the risk of transferring something to someone that may eport it. We, on the other hand, would not be transferring to anyone other than ourselves, already US citizens, so there is no possability of it being transferred to a non-US citizen or it being exported. I'd imagine the governement would have a "doesn't matter" mindset, but it's still worth asking. If we don't need it, that takes a HUGE chunk out of the price tag for a civilian to get one here in California.

Again, this is assuming we NEED the 07FFL per California law, which I am still thinking we don't. California law says nothing about us needing to be registered as it says in Title 18, it only says in Title 26 which covers the taxes needed to be paid when a firearm is made. When our Form 1 is submitted they recognize us as the manufacturer and that is all California law says is required of us.

Oh, and Freakshow, keep your money. I am not trying to say "you're wrong", I am trying to use constructive examination of the law to determine what we can and can't do. Like unloaded open carry, there are so many things that are just passed off as being illegal here without people going through the trouble of figuring out if it's legal or not and it won't be recognized as legal until someone really pushes the envelope and forces them to either cough up the exact section of law that states it is illegal or admit that it's not regulated. I think this is one of those points where the law was written poorly, and while it may have intended one thing it is written in another, and I think if we work carefully we can get through on this point.

[Pvt. Cowboy]

It's an interesting idea at least. I think it will flop, but if you believe you can proceed and have the balls, all it will cost you is a refundable $200 check and a trust made with Quicken Willmaker.

Sure seems to be a risky legal gamble just to make a sloppy homemade can out of an old Maglite D-cell flashlight body, five 1-1/2" galvanized washers, a patch of Chore Boy® brass wool sponge, and a handful of fabric rivets in the blast baffle. Behold, the 1971-vintage Sionics suppressor!

[NeoWeird]

It's an interesting idea at least. I think it will flop, but if you believe you can proceed and have the balls, all it will cost you is a refundable $200 check and a trust made with Quicken Willmaker.

Sure seems to be a risky legal gamble just to make a sloppy homemade can out of an old Maglite D-cell flashlight body, five 1-1/2" galvanized washers, a patch of Chore Boy® brass wool sponge, and a handful of fabric rivets in the blast baffle. Behold, the 1971-vintage Sionics suppressor!

Except I have been studing firearm and suppressor design for the last couple years because I want to be a full fledged 07 down the line. Not to mention I work in a machine shop and regularly work every day on a CNC lathe and have access to a CNC mill (as well as manuals) every day. We also got blanchers, surface grinders, boring mills, precision grinders, etc.

I could make a suppressor on par or better than what's offered today because I can make it custom to my spec and with tighter tolerances as it would be fit and timed to my gun. Of course I don't because I like my firearms, ability to vote, and freedom; but if all it will take is a check and a long wait - I'm interested.

Oh, and I already have my trust set up when I was trying to get an old Remington 870 that fell through, so I've kind of been itching to get some paperwork in as it is.

[Pvt. Cowboy]

Except I have been studing firearm and suppressor design for the last couple years because I want to be a full fledged 07 down the line. Not to mention I work in a machine shop and regularly work every day on a CNC lathe and have access to a CNC mill (as well as manuals) every day. We also got blanchers, surface grinders, boring mills, precision grinders, etc.

LOL. So how many K-baffles have you already got stashed inside the hollow metal tube bedposts in your room? :D

[NeoWeird]

LOL. So how many K-baffles have you already got stashed inside the hollow metal tube bedposts in your room? :D

Yeah, I'm not that stupid.

Though a guy at work did have me make something for his girlfriend...

But that's besides the point and off the topic!

[freakshow10mm]

I understand the SOT covers the $200 tax and would not be required. I was suggesting that for someone who wanted to make one or two items, it would be financially more feesable to pay the $200 tax per item instead of the $1000 SOT fee.
You cannot become an FFL/SOT for personal use. You must be in business. The ATF does not **** around with NFA stuff.

So you pay $150 to get the 07FFL. You then pay $200 for each firearm or pay the SOT if you want to make many items.
No, you do not need the 07 FFL for Form 1 an NFA weapon. A Form 1 is for non SOTs that want to make an NFA weapon.

I would imagine a personal manufacturer could get away without having the ITAR but it would probably be required if you went the way of the SOT.
No. If you are a licensed 07 FFL you MUST pay the ITAR fee regardless if you actually manufacture anything or not. It is part of the total package when you submit to complying with all applicable laws regarding the manufacturing of firearms. Because you are licensed as a manufacturer, you must register with ITAR. The penalty is up to 10 years in prison and a $1 million dollar fine. What's cheaper your freedom plus a cool million or the petty $2250?

I must admit, I had heard reference to the ITAR before but never looked into it. Since we would not be engaging in ANY business with this, I'd imagine we bypass it all together.
You would be then obtaining a FFL for the purpose of enhancing your personal collection and would be in violation of federal law. At best your FFL gets revoked.

I mean, for someone like you who may sell one or two a year, you run the risk of transferring something to someone that may eport it. We, on the other hand, would not be transferring to anyone other than ourselves, already US citizens, so there is no possability of it being transferred to a non-US citizen or it being exported.
No there is always risk of exportation. Once you transfer a weapon to someone else, you no longer have control over the fate of that weapon.

Again, this is assuming we NEED the 07FFL per California law, which I am still thinking we don't. California law says nothing about us needing to be registered as it says in Title 18, it only says in Title 26 which covers the taxes needed to be paid when a firearm is made. When our Form 1 is submitted they recognize us as the manufacturer and that is all California law says is required of us.
California PC states "commencing with SS 5801 of 26 USC 53".

Part I SS 5802 states:

On first engaging in business and thereafter on or before the first day of July of each year, each importer, manufacturer, and dealer in firearms shall register with the Secretary in each internal revenue district in which such business is to be carried on, his name, including any trade name, and the address of each location in the district where he will conduct such business. An individual required to register under this section shall include a photograph and fingerprints of the individual with the initial application. Where there is a change during the taxable year in the location of, or the trade name used in, such business, the importer, manufacturer, or dealer shall file an application with the Secretary to amend his registration. Firearms operations of an importer, manufacturer, or dealer may not be commenced at the new location or under a new trade name prior to approval by the Secretary of the application.



That is the registration of manufacturers pursuant to Title 26 USC Ch 53 commencing with SS 5801 that CPC 12501 refers to.

Down the road at Subchapter B SS 5845(m) we see the definition of "manufacturer":

(m) Manufacturer
The term “manufacturer” means any person who is engaged in the business of manufacturing firearms.

Person is also defined elsewhere in 18 USC Ch 44 921 (A)(1) as being a corporation or other legal entity as well as a natural person. Key phrase is "engaged in the business" of manufacturing firearms. Reference Title 18 USC Ch 44 921 (10) also defines manufacturer as

(10) The term “manufacturer” means any person engaged in the business of manufacturing firearms or ammunition for purposes of sale or distribution; and the term “licensed manufacturer” means any such person licensed under the provisions of this chapter.

So therein lies the definition of manufacturer pursuant to Title 26 USC 53 and 18 USC Ch 44 SS 921. If you are not compliant with Title 26 USC 53 as a registered manufacturer pursuant to 26 USC Ch53 SS 5801 and 5802, then you cannot manufacture a suppressor in California.

Bottom line: You need to be a 07 or 10 FFL, Class 2 SOT, and be registered with the US State Department under the ITAR before you can legally manufacture a suppressor in California.