ATF FFL Newsletter (c. 1990–91) — MP-83 and MP-22 Pistols Classified as Machineguns
newsletter
-- -Federal Firearms Licensees Information Service provided by the Department of
the Treasury, Bureau of Alcohol, Tobacco and Firearms • Washington, D. C.
MP-83 AND MP-22 PISTOLS
ATF has recently examined certain types of
weapons in caliber .22 and 9mm, which fired
semiautomatically from the open bolt position with
a fixed firing pin. These firearms are the MP-83
and the M P-22. Examination revealed that the
disconnecter mechanism of these firearms includes a small pin which can be readily removed
thereby allowing the weapon to fire automatically.
As defined in Title 26, United States Code, section
5845(b) the term machinegun includes any
weapon which shoots, is designed to shoot, or can
be readily restored to shoot, automatically more
that one shot without manual reloading by a single
function of the trigger. The term design covers
weapons which have not previously functioned as
machineguns, but, possess design features
characteristic of automatic weapons and which
facilitate automatic fire by simple modification or
elimination of existing component parts.
The design features of the weapons are similar to
weapons identified in ATF Rulings 82-2, 82-8, and
83-5 which were determined to be machineguns.
Based on their particular design features and the
fact that they will shoot automatically by the mere
removal of a pin, we have determined that the
Holmes open bolt firing pistols are machineguns
and they are subject to all the provisions of the
National Firearms Act (NFA).
It is unlawful for anyone to make, transfer, or
possess a machinegun whichis not registered in
accordance with the provisions of the NFA. Any
such weapons which are not registered in accordance with NFA controls may not lawfully be possessed and must be abandoned. In addition, the
possession or transfer of machineguns manufac-
tured after May 19, 1986, is prohibited except in
certain narrow instances.
There are currently 24 of the MP-83 and MP-22
weapons which have not been abandoned to ATF.
Anyone possessing these firearms should contact
their local ATF office of Law Enforcement for
instructions concerning their abandonment.
Dealers who have acquired and disposed of these
firearms should contact ATF regarding the firearm's disposition. A listing of the serial numbers
of these firearms follows:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11 .
12.
1001
1002
1003
D015
D016
L100-013
L100- 028
L100 - 029
L100 - 030
L 100 - 032
L100 - 034
L100 - 039
13. L100 -048
14. L100 - 049
15. L100-050
16. L100 - 053
17. L100 - 055
18. L100 - 058
19. L100-063
20. L100 - 071
21. L100 - 074
22. L100 - 076
23. L100 - 077
24. L100 - 082
SIGNIFICANT COURT CASES
MACHINEGUN BAN UPHELD BY U.S. COURT
OF APPEALS IN FARMER V. HIGGINS
On July 11, 1990, the U.S. Court of Appeals for
the Eleventh Circuit reversed the prior decision of
the district court and ruled in the case of Farmer v.
Higgins that 18 U.S.C. 922(0) prohibits the private
possession of machineguns not lawfully possessed prior to May 19, 1986.
tions were contrary to statute or were not "necessary" as required by the Gun Control Act. The
plaintiffs also alleged certain defects in the rulemaking process, including the failure to hold an oral
public hearing and the issuance of temporary
regulations prior to inviting and receiving public
comment.
The suit challenged ATF's denial of an individual's application to make a machinegun for his
personal collection. The application was filed in
November 1986 and ATF denied the application
on the grounds that section 922(0) prohibits the
making and manufacturing of new machineguns
for private purposes. The U.S. District Court for
the Northern District of Georgia disagreed with
ATF's interpretation of section 922(0) and ordered ATF to process the plaintiff's application.
Specific regulations which were challenged in the
suit included the definitions of "business premises",
"gun show", and "manufacture", and the
recordkeeping requirements for licensed collectors
and for licensees' receipt and disposition of "personal" firearms.
The Court of Appeals reversed the district court's
order and held that ATF's interpretation of section
922(0) and its denial of the plaintiff's application
was consistent with the language of section
922(0) as well as with congressional intent in
enacting the machinegun ban.
In August 1989, the district court ruled in ATPs
favor, except for the definition of "manufacture"
which the court set aside because the court
believed that the regulation as written could be
confusing to gunsmiths. The plaintiffs then appealed the case to the Court of Appeals.
FLORIDA CONVICTIONS
The Court of Appeals held that two additional provisions in the regulations were invalid as exceeding statutory authority. These included (1) the requirement in 27 C.F.R. 178.125a for licensees to
record in their bound book of sales of "personal"
firearms the license number of the transferee if the
transferee is a licensee and the method of identification used if the transferee is a nonlicensee; and (2) the requirement in 27 C.F.R. 125(f) for
licensed collectors to record as a "receipt" those
curio or relic firearms possessed at the time they
obtained their license.
The U.S. Court of Appeals for the Eleventh
Circuit recently addressed Florida's withheld
adjudications in United States V. Grinkiewicz, 873 ·
F. 2nd 253 (11th Cir. 1989), in which it affirmed
the defendant's conviction for possession of firearms after having been convicted of a felony in
violation of 18 U.S.C. 922(g)(1 ). The prior
conviction was a guilty plea in 1980 for which the
Florida court ordered that adjudication of guilt be
withheld pursuant to Florida Stat. Ann. section
948.01 (3). Relying on a prior decision in United
States V. Orellanes, the court held that the
defendant was "convicted" for purposes of
Federal firearms laws.
The plaintiffs filed with the Court of Appeals a
motion for rehearing which was denied. They
have also filed a motion in the district court for the
Government to pay the attorneys' fees for which
the NRA has been charged in connection with the
case. The amount claimed exceeds $490,000.
The Government will oppose the motion.
FIREARMS REGULATIONS UPHELD BY U.S.
COURT OF APPEALS IN NRA V. BRADY
On September 13, 1990, the U.S. Court of Appeals for the Fourth Circuit upheld ATF's regulations implementing the 1986 amendments to the
Gun Control Act, with two minor exceptions. The
law suit, which was filed by the National Rifle Association and other plaintiffs in the U.S. District
Court for South Carolina in September 1988,
sought an injunctiOl+-against enforcement of the
regulations and a declaratory judgment that the
regulations were invalid.
FIREARMS AND EXPLOSIVES DIVISION
PERSONNEL CHANGES
There have been a number of recent personnel
changes within the Firearms and Explosives
Division (Compliance Operations) which industry
members should be aware of: ·
Chief, Firearms and Explosives Division
Robert E. Daugherty
The primary thrust of the suit was that the regula-
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CERTIFIED COPIES OF LICENSES
Chief, Firearms and Explosives Operations Branch
Louis M. Krivitsky
This section is used to advise dealers of areas in
which ATF inspectors find serious and/or continual
problems in dealer's records during the performance of compliance inspections.
Section 27 CFR 178.94 provides the following for
sales or deliveries between licensees:
"A licensed importer, licensed manufacturer,
or licensed dealer selling or otherwise disposing of firearms, and a licensed collector
selling or otherwise disposing of curios or
relics, to another licensee shall verify the
identity and licensed status of the transferee
prior to making the transaction. Verification
shall be established by the transferee furnishing to the transferor a certified copy of the
transferee's license and by such other means
as the transferor deems necessary: ..."
Handgun sales to nonresidents - There appears to
be some confusion among dealers concerning the
1986 amendments to the Gun Control Act of 1968,
regarding sales of firearms to out-of-State residents. Handgun sales to out-of-State residents
continue to be illegal. However, nonlicensees may
acquire· rifles and shotguns from Federal firearms
licensees outside their state of residence. These
sales must comply with State and local laws applicable at the place of sale and where the purchaser
resides, and may only take place at the licensee's
business premises or organized gun shows (as
defined in 27 C.F.R. 178.100) which are held in the
State in which the licensee's premises are located.
The interstate shipment or delivery of firearms to
nonlicensees is still prohibited.
This section of the regulations requires a licensee
to verify another licensee's status prior to making
sales or deliveries to such licensee. ATF inspectors are discovering many instances of licensees
accepting blurred or illegible copies of FFL's as
verification of another licensee's status. Verification and certification of licensed status is not considered valid unless a legible copy of the transferee's license clear1y identifies the name, address,
license number and expi_ration date of the license,
in addition to containing an original signature of the
licensee in the "Purchasing Certification" section.
Acceptance of faxed, blurred and/or illegible copies
of a transferee's license will constitute noncompliance with the regulations and will result in the
accepting licensee being cited for that violation.
Class 3 Dealers - Upon receipt of a weapon transferred to you on an ATF Form 3, 4 or 5, check the
information on the form describing the firearm
(serial number, description, etc.) to ensure it properly reflects the firearm actually received from the
manufacturer or dealer making the transfer.
ATF has been advised recently that several mail
order firms are offering photo ID's which purport to
identify the holder as a federally licensed firearms
dealer. Licensees are cautioned that the only
acceptable means of verification of a person's
licensed status is the certified copy of the license.
Chief, National Firearms Act Branch
Evans W. Miller
Chief, Firearms and Explosives Imports Branch
Carmen L. Alston
COMPLIANCE INSPECTION PROBLEMS
Numerous firearms are being registered on ATF
Forms 3, 4 or 5 which do not accurately reflect the
description of the firearm transferred. If the firearm
is a receiver only, the ATF Form 3, 4 or 5 should
reflect this information, therefore, a barrel length or
overall length is not applicable.
EXCISE TAX- UPDATE
As announced in the last edition of the FFL Newsletter, it is anticipated ATF will be assuming responsibility for the collection function on firearms
and ammunition excise taxes during 1991.
Additionally, if there is a change to the description
of the firearm, notify ATF (NFA Branch) immediately as to the the change,so that the registration
papers will accurately describe the firearm.
A Federal excise tax is imposed by 26 U.S.C. 4181
on the sale of pistols and revolvers, other firearms,
and shells and cartridges sold by firearms manufacturers and importers.
The tax rate is 10% of the sale price for pistols· and
revolvers, 11 % for firearms other than pistols and
revolvers, and 11% for shells and cartridges.
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This tax is currently being collected by IRS and will
remain their responsibility until further notice. Taxpayers should continue to file returns and deposit
taxes with IRS until given specific instructions by
ATF to do otherwise. Therefore, if you have any
questions concerning this tax and your potential
liability, you should refer the questions to your IRS
District Office, Excise Tax Specialist.
* may have a booth/table at the show at which
he displays his wares and takes orders, but the
sale and disposition of a firearm must be
lawfully effected from his permanent licensed
premises;
* cannot make sales of guns at such shows
even if the transaction is to or through an instate licensee. In this type of transaction the
out-of-state dealer is unlawfully engaged in
business away from his licensed premises.
Additional information concerning tax computation,
filing and deposit requirements is available in ATF
Publication 5300.4, (Your Guide to) Federal
Firearms Regulation, page 99.
LICENSEES WITH LICENSED PREMISES IN
SAME STATE AS THE GUN SHOW:
* may have a booth/table at the show and conduct business the same as at their permanent
licensed premises since the show is considered an.extension of their permanent licensed
premises;
* must prominently display a copy of their
license at all times;
* may sell or dispose of long guns and hand
guns to in-state and out-of-state licensees;
* may sell or dispose of long guns and hand
guns to residents of the State in which the gun
show is held;
* may sell or dispose of rifles and shotguns,
but not handguns, over-the-counter to out-ofstate residents who are nonlicensees, provided
Future editions of the FFL Newsletter, industry
Circulars and ATF news releases will provide more
detailed information concerning A TF's assumption
of this collection function. An information packet
containing tax returns, deposit forms and applicable instructions will be sent to all manufacturers
and importers who are licensed under the Gun
Control Act of 1968 (GCA). Those individuals who
are liable for the excise tax but are not licensed
under the GCA (black powder firearms manufacturers, etc.) are advised to contact ATFthrough the
Firearms and Explosives Operations Branch at
(202) 789-3026 to obtain the information packet
and initial supply of tax returns and deposit slips.
the sale is legal io both states:
Those individuals who are liable for Firearms and
Ammunition Excise Taxes and will be making tax
deposits and filing tax returns with ATF must obtain an Employer Identification Number, if they do
not already have one, prior to making tax deposits
or filing tax returns with ATF. An Employer Identification Number can be obtained by filing an application with IRS on Form SS-4. Form SS-4 may be
obtained from any Internal Revenue District Office
or Service Center.
* must comply with all recordkeeping requirements of ATF regulations, including the
keeping of commercial records of sales to licensees until entry is made in the A&D book,
and ATF Form 4473 for sales to nonlicensees.
* must make proper entry into A&D book on
return to his licensed premises. Must note in
the A&D book that a sa!e was made at (name
and location) of the gun show.
All state and local laws must be followed.
Ucenses will not be issued to gun show locations.
GUN SHOW GUIDELINES
Licenses will only be issued for premises where
the applicant intends to regularly engage in the
business.
A gun show is an event sponsored by any national,
state or local organization devoted to the collection,
competitive use, or other sporting use of firearms,
or an organization or association that sponsors
events devoted to the collection, competitive use or
other sporting use of firearms in the community. A
a gun
notshow.
flea market is
The above guidelines are not all inclusive. For
detailed instructions, please refer to the pertinent
section of law or regulations or call the nearest
ATF Compliance Operations office.
LICENSEES FROM OUT-OF-STATE ATTENDING
AGUN SHOW:
* may purchase/acquire firearms from in-state
licensees or non-licensees at the show;
PERMIT TO CARRY CONCEALED WEAPONS
The Gun Control Act of 1968 contains no provision for the issuance of a Federal permit to carry
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a concealed weapon. The jurisdiction to issue
permits to carry a concealed weapon is that of
State and/or local authorities. Having a Federal
firearms license does not entitle the licensee to
carry a concealed weapon. Customers should be
advised to contact their State Attorney General's
office or local law enforcement officials concerning
restrictions on the carrying of firearms and their
desire to obtain a permit to carry a concealed
weapon.
Therefore, after December 15, 1988, you could
discard any and all firearms records in which the
disposition of the firearms, in their entirety, took
place at least 20 years previous. To further clarify,
if a "bound book" acquisition and disposition record contains one firearm with a disposition less
than 20 years previous, that record must be retained until the 20 year requirement is met. Forms
4473, Firearms Transaction Record, may be discarded 20 years after the transaction date.
INTRATEC RECALL
TEC-22 "SCORPION"
a. If a purchaser of a firearm is a convicted felon
but has received a relief from disability from ATF,
how do I have them fill out the Form 4473. Do they
answer "no" to the questions concerning indict-ments and convictions?
To all owners of TEC-22's from serial #100 to
20,033 and 27,001 to 27,222. A flawed part used
in the manufacture of the pistol may cause the gun
to function in the full automatic mode.
A. Convicted felons who obtain a relief from disability from ATF may purchase and possess firearms insofar as Federal firearms laws are concerned. When the Firearms Transaction Record,
Form 4473, is filled out to purchase a firearm, an
individual with relief from disability must still answer
"yes" to questions 8a and 8b concerning indictments and convictions. A copy of the relief from
disability should be provided to the licensee prior to
the transfer of the firearm from the licensee to the individual. It is recommended that the
licensee attach a copy of the relief document to the
Form 4473.
Already modified (repaired) pistols within the serial
number range can be checked by; opening cover
and looking by fronVside, under cover axis screw
to determine if there is an indentation with an "R"
affixed inside of it, check both sides, then your
firearm "has" been modified (repaired).
If not, send your TEC-22 to lntratec for factory
authorized installation, free of charge.
For return instructions call 1-305-232-1821 or send
your TEC-22, carefully packed and insured to:
a. I recently purchased a computer and would like
to keep my acquisition and dispositions record in it,
but I don't know which software packages are
approved by ATF.
lntratec
12405 S. W. 130th Street
Miami, Florida 33186
A. ATF does not endorse the use of any specific
software packages for computerized recordkeeping
by licensees. Licensees who wish to apply under
27 CFR 178.125(h) for a variance to use computerized records should make certain that their proposed systems meet the following criteria:
LETTERS TO THE EDITOR
The following questions were received regarding
issues of concern to Federal firearms dealers:
a. I am a licensed dealer and want to know if it is
true that after 20 years I can throw away my bound
book and firearms transaction records?
1. The alternate records must contain the
same information as required by the
regulations in 27 CFR 178.122, 123
and/or 125.
A. Under 27 CFR 178.129(d), "The records
prepared by licensed dealers and licensed collectors under the Act of the sale or other disposition
of firearms and the corresponding record of receipt
of such firearms shall be retained through December 15, 1988, after which records of transactions
over 20 years of age may be discarded."
2. Must be able to query by serial number,
acquisition date and name of manufacturer.
3. Must have an acceptable daily memory
backup system, such as disk or tape.
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4. Must be capable of providing a printout
of all records:
(a) for purposes of inspection by ATF,
(b) when the system memory is
purged, and
(c) when business is discontinued.
firearms. My question is: Do I now have to pay
additional special (occupational) tax and if so, can
I apply the $500 I already paid as a Class 2
dealer to the manufacturers' special (occupational) tax due?
A. Yes, you will incur additional special (occupational) tax- (SOT) liability if you change your
business activity from dealer to manufacturer or
importer of NFA weapons. And, no, you cannot
apply the SOT already paid as a dealer to the
new liability incurred as a manufacturer. The
SOT cannot be either transferred or prorated;
thus, you must pay either the $500 "reduced rate"
or the $1000 SOT as a manufacturer before you
engage in the business of manufacturing NFA
weapons. You should be aware, however, that
when the new tax year·begins (July 1, 1991) you
would only have to pay the annual $500 or $1000
SOT as a manufacturer of NFA weapons. You
would no longer be liable for the $500 SOT as a
dealer because the manufacturer's SOT entitles
you to also deal in NFA weapons without incurring the dealer's SOT liability.
5. The computer printout must contain
firearms in inventory as well as all that
were sold during the period covered, sequentially by date of acquisition.
6. Must record both the manufacturer and
importer of foreign made firearms.
7. Printout may include flintlock, per-
cussion cap, or other antique
firearms but cannot include merchandise other than firearms.
8. Names and addresses of the supplier/
consignor and the purchaser must be
included in the computer data. An ATF
Form 4473 transaction number may be
used to reference the additional information such as: date of birth, place of birth,
type of identification used, etc.
Questions and/or areas of concern which you
would like to see addressed in the FFL Newsletter should be submitted to the following address:
9. Cannot rely upon invoices or other paper/
ATF FFL Newsletter
Letters to the Editor
P.O. Box 189
Washington, DC 20044
manual_ systems to provide any of the required information (i.e., must be self-contained).
10. If the business is discontinued, all records
(including a final printout) must be forwarded to the Out-of-Busines Records
Center, per 27 CFR 178.127.
COMPLIANCE OPERATIONS
ADDRESS CORRECTION
Area Supervisor
Bureau of Alcohol, Tobacco & Firearms
6 World Trade Center, Room 620
New York, New York 10048
212-264-4650
11. Any proposed changes in an approved
system must be reported to ATF for evaluation.
If you desire to obtain a variance approval for your
proposed system, please submit a complete
description of the system and a sample printout to
the Regional Director (Compliance) for the region
in which your licensed premises is located. A
listing of the regional office addresses appears on
the back cover of this newsletter.
DISCONTINUANCE OF OPERATIONS
AS AN NFA DEALER, MANUFACTURER,
OR IMPORTER
If you are a Federal firearms licensee who has
paid the special (occupational) tax as a dealer,
manufacturer, or importer in National Firearms
Act (NFA) firearms and intend to discontinue
operations involving NFA firearms, you should be
aware of certain requirements and issues,
especially if you have NFA firearms in inventory.
Q. I am a firearms dealer who has paid the annual
special (occupational) tax as a Class 3 dealer in
National Firearms Act (NFA) weapons. I want to
upgrade my business and become a Class 2
Manufacturer of NFA weapons. I have already
made application for my 07 license to manufacture
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Tobacco and Firearms. The program was
developed in an attempt to stem the illegal flow of
American-manufactured or retailed firearms
across U.S. borders to foreign countries. Literally
thousands of firearms that have their origin in the
United States are recovered each year in foreign
countries. A large percentage of these firearms is
recovered from organized criminal elements
engaged in a wide array of unlawful activity,
including narcotics trafficking and international
terrorism. Investigations have determined that
many firearms unlawfully diverted to foreign
countries are being used to safeguard narcotics
shipments arriving in the United States. Firearms
used in the assassination of three Colombian
presidential candidates last year were determined
to have been acquired in the United States and
subsequently smuggled to Colombia.
If you have acquired certain NFA firearms that
could not have been otherwise acquired were it
not for your special tax status, you should be
aware of possible consequences of possession
when you are no longer a special taxpayer. For
example, some State laws and local ordinances
prohibit the possession of machineguns, but
provide an exemption for special taxpayers.
Thus, a person could be in violation of State law
or a local ordinance if the special tax status
expires. You should check with your local law
enforcement authorities before allowing your
special tax status to lapse.
In addition, if you have in inventory any machineguns which were manufactured or imported on
or after May 19, i986, you are required to dispose of them prior to.the expiration of your
special tax status. The disposition must be made
in accordance with the provisions of 27 CFR
179.105. If you are unable to meet the requirements of this section for the subsequent transfer,
the firearm(s) must be abandoned to an appropriate government agency, otherwise, you would be
in violation of 18 U.S.C. 922(0).
The Administration and Congress have been
petitioned by foreign officials to take steps to curb
the illegal movement of firearms into their countries. To that end, the enforcement commitment
to the ITAR program has been increased.
Responsible actions by law-abiding citizens and
FFLs, acting in concert with ATF Law Enforcement officials, can form an effective network to
combat the violence inherent in the use of firearms in criminal activities.
To properly discontinue your NFA operations, you
must notify our Tax Processing Center in writing
(the address is found on your special tax stamp)
or by noting the discontinuance on your special
tax renewal return.
The effectiveness of the ITAR program can be
greatly enhanced with the support and assistance
of the federally licensed dealer. Shouldyou
suspect that firearm purchases are being unlawfully diverted to foreign countries, you are asked
to contact the nearest ATF Law Enforcement
office.
SPECIAL TAX REFUNDS
Dealers in National Firearms Act (NFA) weapons
(machineguns, short-barreled shotguns, etc.)
should be aware that ATF will not issue refunds
of the special (occupational) tax to NFA taxpayers
on the sole basis that they did not have any
firearms transactions during the July 1 through
June 30 tax year. The absence of weapons
transactions during the tax year is not a sufficient
basis for refund of the special (occupational) tax.
Although the person had no transactions during
the year, there would still be tax liability if the
person continued to engage in the business of
dealing in NFA weapons by holding himself out as
an NFA dealer. If you have any questions, call
the NFA Branch at (202) 789-3223.
DOUBLE HOMICIDE
The Bureau of Alcohol, Tobacco and Firearms,
Pensacola, Florida is assisting the Jackson
County Florida Sheriff's Office with an investigation into a double homicide which occurred on
January 29, 1989, in northwest Florida. One of
the victim's was thumbcuffed from behind and
both victims, Robert and Kathryn McRae, were
shot once in the back of the head with a small
caliber weapon. A spent 124 grain, 9mm, Israeli
T.Z.Z. cartridge and two ski masks were discovered at the scene and personal property had
been taken.
WHAT IS ITAR?
International Trafficking in Arms (ITAR) is a major
enforcement program of the Bureau of Alcohol,
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Subsequent investigation revealed that a similar
double homicide occurred on October 15, 1989,
in west central Alabama where the victims, Acie
and Carolyn Worthy, were shot repeatedly with
124 grain, 9mm, Israeli T.Z.Z. ammunition.
Ballistics examination revealed the 9mm projectiles recovered from both scenes were fired from
the same Uzi weapon.
If you have any information regarding these
cases or the sale of T.Z.Z. 9mm ammunition,
thumbcuffs and an Uzi firearm to a single customer, please contact the Bureau of Alcohol,
Tobacco and Firearms, Pensacola, Florida,
Telephone (904) 434-2697 (Collect calls will be
accepted).
Please note the description of personal property
removed from the crime scene which appears in
the reward circular on the following page.
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