By Dan Shea
“The Yankees beat all creation. There seems to be no limit to what they are able to do.” – Lord Wolseley to Hiram Maxim.
As I look out over the landscape of Raffica, I see that it is good. With the so-called Assault Weapons Ban gone, the innovators and manufacturers in the US are hard at work designing and making interesting new firearms. Shooters and collectors may once again purchase the semiautomatic firearms of their choice, other than the imported ones, the newly made select fire ones and the new designs stuck in the neverland of the approval process. I guess that although things might be good, but they could be better. Hopefully, over the next two years or so, we can effect some positive changes to those situations. In the meantime, we have to keep fixing what we have for personal firearms, so onward with the questions.
Q – I just received an HK MP5SD in from a police department trade, and the Form 5 has the same “Limited to use as Sales Sample” marking as a pre-86 dealer sample machine gun does, but the host firearm is marked with the Post-86 dealer sample literature. I have seen the originals coming in to the PD on Form 5, and they were definitely after 1986. Is there a mistake here or some special category?
A – No, there isn’t a mistake. The short answer is that the suppressors that are imported after 1968 to date, including those imported after the 1986 ban on further manufacture of machine guns for private ownership, are treated the same as a “Pre 86 Dealer Sample machine gun.”
The concept is going to get a bit complicated, but bear with me a bit. In 1968, the so called GCA-68 (Gun Control Act of 1968) banned the further importation of machine guns for private ownership. It also restricted the import of any other NFA type item including suppressors for private ownership. From 1968 until some time in 1971, there were no transfers of imported machine guns to Special Occupational Taxpayers at all. Machine guns imported in this time frame were only allowed for import directly to law enforcement agencies, but those guns if found today are treated as “Pre-86 Dealer Sales Samples.” This made it impossible for the Class 3 dealer community to fulfill the needs of the law enforcement buyers, because they could not do demonstrations. Ed Klein, a prolific Class 3/2 and importer at that time, worked very hard to get the “Dealer Sales Sample” program started and in 1971, the procedures were put into place. Essentially, regulations in compliance with the 1968 law created the “Dealer sales sample” situation after Ed Klein tightened it up in 1971.
From that point in 1968 to May 19, 1986, NFA items that came in were “Dealer Samples” and could not be kept privately on giving up a license. Before 1986, that interpretation varied quite a bit within ATF, and some dealers managed to keep these guns on ending SOT status while others were told no. In 1986, the “Post 86 DS restricted by 922.o” thing started – the so called “Post Sample” machine guns. For a period of two years after 1986, there was a wide variation in how ATF examiners considered the Pre 86 DS machine guns, and there were so many inconsistencies on transfers it was chaos. Many times PD Demo letters were demanded for transfer of Pre 86 samples, and some even went onto Form 4s to individuals. The rumor mill in the Class 3 community ran rampant on this subject, and finally late in 1988, we had a general consensus from ATF. Pre 86 Dealer Sample machine guns did not need LE Demo letters to transfer among SOTs, and they could be kept by a sole proprietor SOT on ending his tax status. Generally, we were told that these machine guns could also be left to a lawful heir on a Form 5. That changed with a simple policy change at ATF around 1995, and that was very contentious with dealers. We had all planned that our heirs could keep these on our passing, and now the heirs had to hold SOT status to keep them.
I am getting way off subject here, but it is necessary to the story. Back on track, the other NFA firearms that were banned from importation for private ownership in 1968 including suppressors, Short Barreled Rifles and Shotguns, AOWs, and Destructive Devices, were unaffected by the 1986 law. 1986 only affected machine guns imported or manufactured after the law change, and there is some speculation that what are referred to as “Post 86 DS” machine guns could be kept by a retiring SOT as well. That remains to be seen as it is definitely not the official ATFE position. However, the ATFE has continually taken the position that the NFA items other than machine guns, imported from 1968 until today, will be treated the same as a “Pre 86 Dealer Sample”. This means they transfer without an LE Demo request letter between SOTs, and they can be kept on ending SOT status (sole proprietors only). In effect, your HK MP5SD machine gun is a totally restricted Post 86 Dealer Sales Sample, needing an LE demo letter to transfer and it must stay with an SOT or a law enforcement agency. The suppressor, however, can transfer without an LE Demo letter, and is treated like a pre 86 dealer sample machine gun. An SOT can keep it on ending SOT status. There are a few integrally suppressed SMGs that have this situation; the MP5SD is one and the L34A1 Sterling is another. In each case, there have been Class 3 dealers who destroyed the host Post 86 DS machine gun, and took the imported suppressor and integrated it onto a transferable machine gun in order to personally keep an integrally suppressed machine gun with an original suppressor on ending SOT status. One should also remember that HK has had different manufacturers for the suppressor used on the MP5SD. There have been HK in Germany, Brugger & Thomet from Switzerland, both of which would be treated as Pre 86 dealer samples, but of original HK MP5SD suppressors, the Qual-A-Tec and Knight’s Armament suppressors would actually be fully transferable to individuals due to their manufacture in the US.
Markings on the HK MP5SD and the matching German made integral suppressor. On this series of guns, the suppressor and the submachine gun had a matching serial number in the Registry. However, the “S” prefix was the submachine gun, not the suppressor, and this has caused a lot of confusion in the past. Also note that the suppressor is marked with a serial number “S. Nr. 000 898” while it is also marked with a weapon number “W. Nr. 097 824”, which matches the “S 97824” serial number on the host submachine gun. The original HK importation put these in the NFRTR as “MP5SD machine gun serial number S976824” and “MP5SD suppressor serial number 97824.” Corrections to the NFRTR should be made as found by those examining the suppressor, simply by putting the correct serial number – in this case 000898 – in section “H” on the form as “Other markings.” In this particular case, the MP5SD submachine gun is a Post 86 Dealer sample, and the suppressor would be treated as a Pre 86 Dealer Sample “Keeper” by the ATF. Reading further into what I have said above, I am sure an astute reader will realize that Short Barreled Rifles and Shotguns, Any Other Weapons, and Destructive Devices that were imported for LE use after 1968, up until current times, can be kept by an SOT sole proprietor on ending status as well. These items occasionally come up for sale, and it is a way for a Class 3 dealer to legitimately keep some interesting original guns in a personal collection on ending SOT status. After a long time in the business, it is fitting and appropriate that one can keep the memories of that business. These are, after all, your paid-for private property.
Since we started the discussion with your reference to the markings on the Form 5, I think it prudent that we look at some of these markings as well. The markings here represent the basic markings you will find on Forms 3, 4, or 5. Remember that the ATF Examiners have frequently made mistakes on status, and either forgotten to stamp a Form with restrictions, or stamped restrictions on Forms that should have no restrictions. An experienced dealer or collector can usually tell when there is something awry, by knowing which importers were only in the Pre 86 days, which ones are only in the Post 86 days, and which guns should typically be of what restriction base. I get a phone call about once a year from someone who is buying a “transferable” MP5 “original” for a small fortune, and the only indication of transferability is that there is no stamp in the lower corner of the form. In reality, by knowing what serial number ranges were imported from Germany, what periods of time these were imported, the serial number ranges of the HK94 host guns used for conversions, it is very possible to discern the status of a gun. Of course, these are usually a mistake, and there is usually a squabble about who owes who what money to settle the deal. Just because there is no stamp, does not mean a firearm is not restricted.
Example 1 This is the lower left “Approval” block of a Form 3, identical on a Form 4 or 5 as well. The “Approved” block has a check mark, with the examiner’s initials placed next to it by pen. The authorized ATF official’s stamp is at the bottom. There are no restrictions in this block. You may find hand written notes correcting something from the other areas of the form in here, but this situation indicates a fully transferable NFA firearm.
Example 2 Same area of the Form 3. In this case, we have the approved check, the initials, the official’s stamp, and the phrase “Limited to Use as Sales Sample” in large block letters. This is the sign of a Pre 86 Dealer Sample “keeper” firearm. There may also be a similar stamp that says “Law Enforcement Use Only.” Both stamps mean the same thing. Remember that there was a time where machine guns being imported could only go to the law enforcement agency. These stamps should be in red ink, but may be found in blue or black.
Example 3 Same area of the Form 3. In this case we have the approved check, the examiner’s stamp instead of initials, the official’s stamp, and the phrase “Restricted Registration: Possession limited to continued compliance with provisions of Public Law 99-30B”. This is the “Post 86 Dealer Sample” stamp, which indicates a machine gun that can not be transferred to an individual, and can not be retained by an SOT on ending tax status. This may be in red, blue or black ink, and there have been several different type sizes seen. Remember, if this is on an imported NFA item other than a machine gun such as the MP5SD suppressor that was the start of this question, it is the incorrect stamp, and does not change the category. The owner should try to get this corrected quickly to ensure no misinformation is taken from the form. Lack of this stamp will not make a Post 86 Dealer Sample into a transferable machine gun as the ATFE takes the position that it is simply a mistake and will not alter the status.
I hope this clarifies this very confusing part of the Class 3 world for you- Dan
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|This article first appeared in Small Arms Review V8N7 (April 2005)