By Teresa G. Ficaretta, Esq. & Johanna Reeves, Esq.
ATF’s Proposed Framework for Armor Piercing Ammunition Exemptions: What Happens Next?
There has been a lot of interest and media attention focused on a document the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) published in February 2015 relating to armor piercing ammunition. In this document, ATF proposed a framework for processing requests seeking exemptions from the restrictions imposed on armor piercing ammunition by the Gun Control Act of 1968 (GCA). After receiving over 80,000 comments on its proposal, ATF announced on March 10, 2015, that the agency would not, at that time, announce a final decision on the standards for acting on exemption requests. The announcement, posted on ATF’s website at https://www.atf.gov/press/releases/2015-03-021015-advisory-notice-those-commenting-armor-piercing-ammunition-exemption-framework.html, states in part: “Although ATF endeavored to create a proposal that reflected a good faith interpretation of the law and balanced the interests of law enforcement, industry, and sportsmen, the vast majority of the comments received to date are critical of the framework, and include issues that deserve further study. Accordingly,bATF will not at this time seek to issue a final framework.”
Given the swift and widespread condemnation of ATF’s proposal in the firearms community and Congress, it is not surprising the agency was stopped in its tracks. This article will explain the proposal, the reaction to the proposal, and what ATF may do in the future on the armor piercing ammunition issue.
The Statute and Background
Ammunition capable of penetrating body armor was originally designed and manufactured for the military and law enforcement, not for use by the general public. Beginning in the late 1970s, however, law enforcement organizations became concerned that armor piercing ammunition had been introduced in the commercial market and therefore posed a threat to police officers. Legislation was introduced in Congress to address this threat.
Congress debated the restrictions on armor piercing ammunition for several years before passing a bill. Congress considered several approaches to regulating the so-called “cop killer bullets,” including a performance-based test that would have required ATF to test and evaluate ammunition to determine whether it would in fact defeat Level II body armor used most often by law enforcement officers. Congressional hearings indicate the Administration opposed performance-based testing, as virtually any rifle cartridge and a number of handgun cartridges will defeat Level II body armor. The Administration also believed that performance-based testing would require establishment of extensive testing criteria, be costly to administer, and likely be the subject of litigation. Bills requiring performance-based testing were dropped in favor of the composition-based test enacted in 1986 by the Law Enforcement Officers Protection Act of 1986 (P.L. 99-408).
As enacted by the 1986 legislation, the GCA prohibits the manufacture and importation of armor piercing ammunition (with exceptions for law enforcement and the military) and the distribution by manufacturers, importers, and dealers of such ammunition. The statute does not, however, make armor piercing ammunition contraband, as it is not unlawful for unlicensed persons to possess armor piercing ammunition. The GCA and implementing regulations impose marking requirements on armor piercing ammunition, including painting or dying the exterior of the projectile with an opaque black coloring and labeling the exterior packaging with the words “ARMOR PIERCING.” The law also imposes record keeping requirements on manufacturers, importers, and dealers in armor piercing ammunition.
The statute defines “armor piercing ammunition” in pertinent part as a projectile or projectile core which may be used in a handgun and which is constructed entirely from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper or depleted uranium. Only those rounds that can be chambered and fired from a handgun are subject to regulation. In 1986, when the bill passed, there were relatively few rifle cartridges with steel or other specified hard metal projectiles that could also be fired in a handgun. Indeed, ATF’s official list of “armor piercing ammunition” in 1988 contained only 12 cartridges.
The GCA at Section 921(a)(17)(C) gives the Attorney General the authority to exempt from the definition any projectile which he finds is “primarily intended to be used for sporting purposes.” In 1986, ATF used this authority to exempt 5.56mm (.223) SS109 and M855 “green tip” ammunition containing a steel core. In 1992 ATF used the sporting purposes exemption again to grant a request to exempt .30-06 M2 AP cartridges.
From 1992 until 2011, the armor piercing ammunition provisions of the GCA received little attention. However, the growing popularity of handguns built on rifle receivers, most notably the AR-15 receiver, resulted in a large number of rounds originally designed for rifles becoming rounds that “may be used in a handgun.” Such rounds that include a projectile made with one of the specified metals became regulated as “armor piercing ammunition” as soon as a handgun chambering the ammunition was introduced in commercial channels.
Exemption Requests
In 2011 ATF received approximately 20 requests for exemption, and that number subsequently grew to over 30 requests.
The reasons for the influx of exemption requests include pressure on the ammunition industry to produce alternatives to lead ammunition, as well as increased production of handguns designed to use conventional rifle ammunition. Even though the ammunition was originally produced for rifles, the fact the rounds can be used in a handgun brings the ammunition within the language of the statutory definition. Consequently, manufacturers of the ammunition requested exemptions so they may lawfully manufacture and distribute the ammunition in commercial channels.
Between 2011 and 2015, ATF solicited input from manufacturers and importers of ammunition, trade associations, sporting organizations, law enforcement and other interested non-governmental organizations on how the sporting purposes exemption should be interpreted.
The firearms and ammunition industries recommended ATF interpret the exemption language to make the manufacturer’s subjective intent controlling. Therefore, if the manufacturer designed and intended the ammunition to be used primarily in rifles for hunting or target shooting, then the fact the ammunition could also be used in handguns should be irrelevant. This approach would result in all the exemption
requests being granted.
By contrast, law enforcement representatives urged ATF to consider the intent of the criminal who uses armor piercing ammunition when interpreting the statutory exemption language. If ammunition containing a steel or other specified metal projectile was used in a handgun – the type of firearm most frequently used by criminals – then, from a law enforcement perspective, the manufacturer’s intent that it be used only for hunting or target shooting is irrelevant. Law enforcement representatives contended the availability of handguns capable of using the armor piercing ammunition creates a potential for diversion to criminals who could use the ammunition in handguns to defeat police body armor; the very threat the 1986 legislation was intended to address.
It was not until February 2015 that ATF finally published its proposal for addressing the armor piercing ammunition exemption requests.
ATF Framework for Determining Whether Certain Projectiles are ‘Primarily Intended for Sporting Purposes Within the Meaning of 18
U.S.C. 921(a)(17)(C)
ATF’s framework emphasized the importance of interpreting the statute in a manner that carries out its goal of protecting law enforcement officers from death or injury from criminal use of handgun ammunition capable of penetrating soft body armor. The agency concluded a specific projectile does not pose a significant threat to law enforcement officers only if the projectile is “primarily intended” for use in shooting sports and is unlikely to be encountered by law enforcement officers on the streets.
In assessing the competing views of law enforcement and members of the firearms and ammunition industries, ATF looked to the plain language of the statute and the statutory framework and found, its view, primary support for the law enforcement perspective in defining “armor piercing ammunition.” ATF provided the following justification for its reasoning: “It would make little sense for Congress to reject an approach focusing on a manufacturer’s design and intent to qualify the ammunition as armor piercing, and for the Attorney General to then exempt out ammunition based on such design and intent. In short, that approach would render the restrictions on armor piercing essentially ineffective, applying only to the small body of ammunition specifically created for the military – a result Congress clearly did not intend.”
In interpreting the “primarily intended” language, ATF considers the most relevant intent as that of a criminal who seeks to use armor piercing ammunition. According to ATF, the manufacturer’s intent that the ammunition be used for hunting or target shooting is irrelevant if the ammunition can be diverted to criminals to defeat soft body armor worn by police officers. For this reason ATF rejected adopting an interpretation that allows the manufacturer’s intent to be dispositive. ATF stated it is appropriate to consider the likely use of a particular type of ammunition in the general community, which leads to consideration of the types of handguns readily available to accept that ammunition. In other words, the characteristics of the handguns in which a specific projectile may be used will determine that projectile’s likely use in the community.
The framework set forth two categories of projectiles which would be eligible for exemption under the “primarily intended to be used for sporting purposes” language. Those projectiles are the following:
1. Category I: .22 Caliber Projectiles
A .22 caliber projectile that otherwise would be classified as armor piercing ammunition under 18 U.S.C. 921(a)(17)(B) will be considered to be “primarily intended to be used for sporting purposes” under section 921(a)(17)(C) if the projectile weighs 40 grains or less AND is loaded into a rimfire cartridge.
2. Category II: All Other Caliber Projectiles
Except as provided in Category I (.22 caliber rimfire), projectiles that otherwise would be classified as armor piercing ammunition will be presumed to be “primarily intended to be used for sporting purposes” under section 921(a)(17)(C) if the projectile is loaded into a cartridge for which the only handgun that is readily available in the ordinary channels of commercial trade is a single shot handgun. ATF retains the discretion to deny any application for a “sporting purposes” exemption if substantial evidence exists that the ammunition is not primarily intended for such purposes.
The framework defines “single shot handgun” as a break-open or bolt action handgun that can accept only a single cartridge manually, and does not accept or use a magazine or other ammunition feeding device. The term does not include a pocket pistol or derringer-type firearm.
Impact of ATF’s Framework on Pre-Existing Exemptions
The framework makes it clear that in applying the sporting purposes categories set forth above, the 5.56mm projectile ATF exempted in 1986 will not qualify for an exemption because cartridges containing this projectile may be used in handguns that are not single-shot. These cartridges are commonly used in AR-type handguns that utilize magazines. Accordingly, ATF proposed withdrawing the exemptions for the 5.56mm “green tip” ammunition, including both the SS109 and M855 cartridges.
ATF noted in the framework that this ammunition is widely available to the public and that, once the exemption is withdrawn, manufacturers would not be able to produce it, importers could not lawfully import it, and distribution by manufacturers and importers would be unlawful. ATF specifically sought comments from all interested parties on how to implement withdrawal of the exemption to minimize disruption to industry members while maximizing officer safety.
Under the criteria proposed in the framework, the exemption for the .30-06 M2 AP cartridges would continue because there are no multi-shot handguns that currently accept such ammunition.
Impact of the Framework on Commercially Available Ammunition
A significant number of cartridges originally manufactured for rifles would not be eligible for the exemption under the criteria proposed in the framework. For example, .223 and 7.62x39mm cartridges would not be exempted due to the availability in commercial channels of AR and AK-type pistols, clearly not single-shot firearms. Projectiles in .430 caliber would also not be exempted due to the availability of .44 magnum handguns which will chamber this ammunition. Finally, .458 bullets, very popular for big game hunting, would not be exempted due to the availability of multi-shot handguns in 45-70 caliber. All of this ammunition would continue to be subject to the restrictions on manufacture, importation, and distribution of armor piercing ammunition.
Reaction to ATF’s Proposed Framework
Reaction to ATF’s proposal was swift and overwhelmingly negative. Some examples of news headlines and commentary include “ATF to Ban Common AR-15 Ammo,” “ATF Move to Ban 5.56 ‘Green Tip’ Ammo Draws Fire,” and “Here’s How the White House is Justifying Trying to Ban Certain Ammo Without Congress.” Some commentary claimed the Obama Administration was attempting to use the armor piercing provisions to ban AR-15-type rifles without legislation.
Members of both houses of the U.S. Congress reacted strongly to the proposed framework, claiming it was inconsistent with the 1986 statute and violated the Second Amendment. The Members of Congress objected to ATF’s proposal to rescind the exemption for the M855 5.56x45mm “green tip” ammunition because it had qualified as sporting for decades and because ATF failed to offer any evidence that the rounds had ever been fired from a handgun at a police officer. The Members of Congress urged ATF to adopt a statutory interpretation that recognized the many legitimate uses Americans make of their firearms, including target practice, hunting, and shooting competitions. There were also allegations that ATF violated the Administrative Procedure Act (APA) because it did not publish the framework in the Federal Register, the official journal of the federal government that contains proposed rules and public notices.
Where Will ATF Go from Here?
Given the beating the agency took from industry groups and Congress, it is unlikely ATF will publish another proposal relating to armor piercing ammunition within the near future – particularly not before the 2016 Presidential election. What is unfortunate is the fact that the ammunition manufacturers who submitted exemption requests to ATF remain in a holding pattern while the rounds are still restricted as “armor piercing ammunition.” The ammunition may be lawfully distributed only to law enforcement agencies, the military, and for export. This is a harsh result for the manufacturers and importers who submitted the exemption requests, particularly as ATF’s proposed framework would have resulted in the agency granting a significant number of the requests.
One point worth noting is that ATF is not legally required to publish its interpretation of the exemption language for armor piercing ammunition in the Federal Register in the same manner as a proposed regulation. This is because the framework is an “interpretive rule” that is exempt from the notice-and-comment rulemaking requirements of the APA. ATF published the framework to solicit industry and public comment – a wise decision given the fallout from its proposal. We anticipate the agency will make good on its pledge to publish additional proposals based on the comments received.
Another important fact to consider is that ATF did not “ban” the M855 5.56x45mm cartridge (SS109). Congress banned this round when it enacted the armor piercing ammunition restrictions in 1986, as the round is made with a steel core. ATF immediately acted to exempt the round under the “sporting purposes” exemption and ATF recently published a proposal that, if adopted, would result in withdrawal of the exemption. Because ATF has put the proposal on hold, the M855 cartridge may continue to be lawfully manufactured, imported, and distributed in commercial channels.
Now to the argument that ATF must obtain or cite evidence of a round actually used against law enforcement officers before it classifies the round as armor piercing. Congress deliberately adopted a composition-based test for projectiles that does not take into account the capability of the ammunition to pierce body armor or its misuse against law enforcement officers. Consequently, if ATF were to not classify as armor piercing a round meeting the composition standards of the statute due to a lack of evidence showing misuse, claims could arise that the agency ignored the plain language of the statute.
The last point we wish to make is that it is virtually impossible for ATF to act on the pending exemption requests before it articulates an interpretation of the “sporting purposes” language. Industry members have urged ATF to act on the exemption requests on an ad hoc basis, claiming that a framework was unnecessary for the requests granted in 1986 and 1992 and is unnecessary now. Such an approach, however, would leave the agency vulnerable to legal challenge by any person whose exemption is denied because such denial is “arbitrary and capricious” in violation of the Administrative Procedures Act. Such litigants would have a very good chance of succeeding if ATF fails to articulate a rational basis for its interpretation of the exemption language. Conversely, if ATF grants each and every one of the 30+ exemption requests on the basis that the manufacturer intends the rounds to be used in rifles for traditional sporting purposes, the agency may avoid litigation, but it will incur the wrath of law enforcement and pro-gun control groups. Arguably, then, the only way forward is for ATF to come up with another rationale, publish it for comment, and gauge the reaction. But such approach
will likely take years.
Presumably, as we write this, ATF is reviewing the comments it received to its proposed framework. Perhaps ATF will find a proposal that strikes precisely the right balance between the competing interests of ammunition manufacturers to sell their products and the safety concerns of law enforcement officers. Until ATF finds that balance, manufacturers and importers of cartridges meeting the definition of “armor piercing ammunition” will have a very limited market.
About the authors –
Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (www.reevesdola.com). For more than ten years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and
U.S. export controls.
Teresa Ficaretta is one of the country’s foremost experts on ATF regulations under the Gun Control Act, the National Firearms Act, the Arms Export Control Act and Federal explosives laws. Before joining Reeves & Dola in 2013, Teresa served as legal counsel to ATF for 26 years, followed by two years as Deputy Assistant Director in Enforcement Programs and Services. They can be reached at (202) 683-4200.
| This article first appeared in Small Arms Review V19N8 (October 2015) |
