Modern Rifleman’s Comments on ATF Framework Proposal (M855 Ban)

Regrettably, the ATF has taken it upon themselves to issue a regulatory ban on yet another popular type of ammunition. This time, the agency has targeted the popular 62 grain M855 round used by many shooters as a versatile and reliable target ammunition in service-grade 5.56/.223 rifles. This marks the fourth time in the last two years that the ATF has attempted to abuse its regulatory capacity to attack peaceable and law-abiding shooters and collectors (ATF 41P, 7N6 reclassification, SIG brace flip-flop, documentation changes for 01 and 03 FFLs). The proposal is linked below and I have included contact information for the ATF. My official comment is also posted below. I encourage everyone to write coherent, vulgarity-free, comments to submit for ATF consideration before the March 16 deadline. Please also take time to contact your legislators to inform them of this overstep.

http://www.atf.gov/sites/default/files/assets/Library/Notices/atf_framework_for_determining_whether_certain_projectiles_are_primarily_intended_for_sporting_purposes.pdf

Contact information:

ATF will carefully consider all comments, as appropriate, received on or before March 16, 2015, and will give comments received after that date the same consideration if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before March 16, 2015. ATF will not acknowledge receipt of comments.
Submit comments in any of three ways (but do not submit the same comments multiple times or by more than one method):
ATF website: APAComments@atf.gov. Follow the instructions for submitting comments.
Fax: (202) 648-9741.
Mail: Denise Brown, Mailstop 6N-602, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Avenue, NE, Washington, DC 20226: ATTN: AP Ammo Comments.

Modern Rifleman’s comment:

Denise Brown
Mailstop 6N-602
Office of Regulatory Affairs
Enforcement Programs and Services
Bureau of Alcohol, Tobacco, Firearms, and Explosives
99 New York Avenue, NE
Washington, DC 20226
ATTN: AP Ammo Comments

 

Ms. Brown,

The BATFE (ATF) recently published and invited public comments for a proposal “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).” The below paragraphs shall serve as my comments on the proposal for agency review and consideration.

While the document is rife with errors and topical ignorance, the first problem within the ATF framework proposal is the agency’s explicit acknowledgement on page two that LEOPA of 1986 was adopted to protect police officers from “criminal use of handgun ammunition capable of penetrating protective vests” and ATF’s clarification of this to mean ammunition that would penetrate soft body armor. ATF should be aware that no soft body armor as used by police organizations is rated to withstand any rifle or intermediate caliber rounds. This is a widely known fact and penetration of soft armor is not exclusive to M855/SS109. The presence of steel within the core of the projectile is irrelevant at common law enforcement engagement distances and any cartridge capable of reaching sufficient velocity can be expected to defeat soft armor. M855 simply performs exactly like any other rifle round in this regard. As far as officer safety is concerned, this proposal fails to advance the issue in any legitimate way.

Next, on page three of the proposal, ATF references 18 U.S.C. 921(a)(17)(B) for the relevant statutory definition of “armor piercing ammunition”. In doing so, ATF highlights two standards, a partly subjective one (i) wherein a projectile made of certain materials which may be used in a handgun would be considered “armor piercing”. The second (ii) is a more objective one where a projectile “designed and intended for a handgun” over .22 caliber with a jacket that makes up more than 25 percent total projectile weight would also be considered “armor piercing”.  Coincidentally, M855 meets neither definition. The subjective definition (i) contains an objective and condition which requires the projectile core be made entirely of (or a combination of) tungsten alloy, steel, iron, brass, bronze, beryllium copper, or depleted uranium. M855 does not contain a steel core as traditionally defined. Instead, the core used in M855 is a combination of steel and lead wherein lead accounts for over 80% of the overall projectile weight and the steel less than 20% of the projectile weight. The US military does not designate M855 as armor piercing, but has a separate tungsten-cored round (M995) that has been defined as such. Definition (ii) does not apply to M855 as the statute explicitly states that the round must have been “designed and intended” for use in a handgun. ATF has misapplied the definitions laid out in 18 U.S.C. 921(a)(17)(B) in this proposal and should revoke it on these grounds.

Not only is ATF’s analysis of M855 inconsistent with statutory definitions, it also runs counter to determinations made by other agencies. The decision to ignore the substantial section of lead in the projectile as somehow not part of the bullet’s core is counter to numerous previous determinations, including analysis from the very EPA referenced in the proposal. Indeed, as recently as 2013 the EPA encouraged the development of the M855A1 steel/copper cored round as a replacement for the M855. In doing so, the EPA cited the lead within the core of the M855 as their reasoning for supporting the change. The validity of the data behind the EPA push notwithstanding, the fact that the agency noted the lead within the core of the round should not be ignored.

ATF’s attempt to justify the proposal using a “sporting purpose” argument fails to address many concerns held by legal sportsmen. The first of these is the apparent ignorance on the part of the agency with respect to M855’s popularity with target shooters. This can only be taken as ATF’s outright refusal to acknowledge the AR-15 as the most popular target rifle in the nation, both in formal competition and recreational shooting. The M855 has a total projectile weight of 62 grains. This weight (and requisite projectile length) works extremely well in most common barrels with 1:9 and 1:7 rifling twist ratios. M855 happens to be favored by target shooters because it has passed the accuracy requirements of the US military and is one of the highest quality and most consistent options for shooters using commonly available 5.56mm/.223 caliber barrels.

As part of the same “sporting purpose” argument, ATF almost inexplicably delves into standards for determining a pistol as “primarily intended for sporting purposes”. In doing so, ATF narrowly defines “sporting” pistols as single-shot firearms and wholly ignores the overwhelming use of semi-automatic handguns in target competitions. In fact, semi-automatic handguns far outnumber single-shot handguns in competitive shooting. In keeping with this theme, ATF references concealable handguns as one type of firearm not “primarily suited for sporting purposes”. This is completely unrelated to the subject at hand, but leaves readers wondering what the agency’s intent might have been in mentioning these firearms. If the concern is that a handgun can be concealed, AR-15 pistols are just about the least concealable option out there and are every bit as “large” and “heavy” as the single-shot handguns referenced on page thirteen.

It is intriguing that the proposal specifically names AR-15 as a concern for ATF and police. While the agency seems particularly hung up on the idea that a firearm the size of a very large laptop could be easily hidden on the body, ATF also appears completely ignorant of the fact that 5.56mm pistols are far from a new concept. Bushmaster released a similarly sized pistol in 1977, known as none other than the Bushmaster Arm Pistol. This firearm actually predates the exemption that was issued (albeit unnecessarily) for M855 ammunition. Surely this weapon was known when the exemption was issued, so why is ATF ignorant of this history today?

Arguably the most disturbing part of the proposal is ATF’s dedication to implementing the new rule and associated disregard for the state-level ramifications of such a ruling. At this time, as many as twelve states (Alabama, California, Connecticut, Indiana, New Hampshire, New Jersey, New York, Michigan, Mississippi, Oklahoma, Tennessee, and Texas) explicitly forbid the possession of armor piercing ammunition. In several of these, possession constitutes a felony. Simply put, the proposal would instantly turn thousands of peaceable gun owners into felons simply because ATF chose to arbitrarily reclassify one of the most popular 5.56mm cartridges on the market. The consequences of such an action could be quite severe, but at minimum, thousands of gun owners will have sufficient standing to bring the agency to court.

In light of these facts, ATF should take two significant actions. The first is that the agency should immediately withdraw the proposed framework referenced in the opening of this letter. The second action should be prompt removal of the armor piercing classification for M855/SS109 as the projectile does not meet either statutory definition within 18 U.S.C. 921(a)(17)(B).

 

<Place your full name and address down here>

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9 thoughts on “Modern Rifleman’s Comments on ATF Framework Proposal (M855 Ban)

  1. Well researched and articulated response to ATF request for comments. But its obvious to a blind man that facts are not used by the STF in their decision making process. It is my belief that the Director is called into Eric Holders office, who says, “Good morning Todd. Valerie has told Barry that she wants to ban armor piercing ammunition for sale to the public, and to begin to dry up the supply of surplus ammo used by the public. The contents of the directive I am about to hand you details our position, and the wording of the press release, and the response to all comments. As for the public comment period, go ahead and archive all comments, as this decision is not subject to reconsideration. Handle it. “

    • Thanks for the feedback jaquebauer. While I agree with the spirit of your comment, it is nonetheless important to submit our opposition to the public register. The fact that the ATF has requested feedback not on the legality of the proposition, but on the best way to implement the changes is likely indicative of their outlook going into this public comment period. Even so, our comments are unlikely to be submitted in vain.

      I urge everyone who reads this to understand that any comments submitted during this period could be used against the ATF in court at some point down the line. This is why it is important for us to not only emphasize their misapplication of U.S.C. 18 921(a)(17)(B), but we must also submit varied comments in order to capture multiple perspectives of the issue.

      Lastly, an overwhelming influx of submissions might delay or indefinitely postpone a ruling. The ATF is obligated to respond to these comments, so we must make this as challenging as possible in intellectual terms, but also as a product of massive community involvement in the process.

    • A little know case Ellis v Blum (2nd Circuit Court of Appeals) stated that whoever writes or is responsible for writing regulations for an agency-this would be the secretary-may be “vicariously liable” for both a USC 42 Section 1983 or a Bivins type Constitutional Tort for a deprivation of due process. Two years ago the poor soul who was constructing the drop in sears was nabbed and prosecuted for manufacturing machine guns, the sears. The prosecution reversed a long time ATF regulation that resulted in those items manufactured before 1982 were not illegal. The Seventh Circuit Court of Appeals stated that the decision of ATF would be tantamount to legislating and that the 1986 Law that denied the citizenry access to machine guns manufactured after 1986 illegal was styled to make “any part” of a machine gun a machine gun by statutory definition was the object of the legislature and that ATF had no business rewriting the law with its decisions. In fact, the law was bad for the citizenry. However, a sword cuts in two directions.

      With the two aforementioned legal points would be very good information with which to work over the head of the agency. that head would be the Sec. of DHS 🙂 I can think of nothing better than some intrepid attorney setting up the Sec. of DHS and whip his ass in a law suit. The dog will stop hunting if the prey turns and tears him a new hind part no matter what the handler tries to encourage him to do. Together with the fine research the writer has discovered, it would be a wonder to make the dog run for the front porch. Heck I bet that several hundred folks writing in with this information well styled, cogent and written in the formal laws of logic would probably do the trick. It would be a shame to waste it, however.

      There is a time for every purpose unto heaven….. I am of a mind to start an offensive and cease from playing defense. Wars are never won from a defensive position. Either you go for the throat or waste your time fighting all the little bites and scratches from the varmints.

      Of course this is just my observation….

  2. I can’t help but wonder if the committee responsible for this text has even seen an “AR-type” pistol. They’ve got to be one of the absolute least concealable “handguns” (and I use the term loosely) I’ve ever seen. Thanks for pointing out all the inconsistencies in the framework, you brought up a few I didn’t notice that I can use in my comment as well.

    • TNC,
      I am glad that my comment has helped you refine your own submission. The whole point of making comments publicly available is to bounce ideas off one another over the next month.

      I actually think that the ATF is well aware that AR pistol builds are very popular. I also have no doubt that they understand the relatively large size of these “handguns”. Unfortunately for them, the classification of these firearms is codified in law and pushing further regulations on AR pistols would be more difficult. Of course, armor piercing ammunition is obviously also defined in statute and that has not deterred them here.

  3. Polite discussion protesting increased tyranny by the Obama regime has resulted in: Obamacare, open borders, ISIS. Maybe polite discussion and reasoned debate are useless against a lawless tyrannical regime?

    • Boris, I appreciate your feedback and your enthusiasm. However, I have to disagree with the notion that we are somehow wasting our time by holding a reasoned discussion on this and other matters. We are all frustrated with the incessant regulatory and legislative attacks on peaceable gun owners, but we must also recognize that some of these barrages present opportunities to set favorable precedent. This is potentially one such case. Hastily making emotional decisions will not win this battle in the long run.

      • If the Bill of ‘rights states: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. – Meaning citizens can come together and fight, if necessary, in the absence of government forces, to provide their own safety and security, against an invading force, or outright lawlessness after a terrorist attack or natural disaster. In addition,the foremost reason for the inclusion of the second amendment was to insure an armed citizenry will have last resort recourse against government tyranny. SO WHY WOULD IT BE REQUIRED THAT OUR AMMUNITION BE “PRIMARILY INTENDED FOR SPORTING PURPOSES”?!! The world over, citizens are “allowed” limited sporting arms, for sporting purposes! THE SECOND AMENDMENT GUARANTEES US MORE – AMERICANS ARE GUARANTEED THE RIGHT TO MILITIA GRADE MODERN FIREARMS AND AMMUNITION!!! We are not supposed to be harmless to law enforcement, as that would ensure we are not seen as a deterrent to tyranny. The second amendment IS A RIGHT TO POWER – TO ENSURE WE ARE A DETERRENT TO TYRANNY! Laws in more and more states are not only geared to making us harmless to law enforcement, but in making us harmless to schoolchildren. The second amendment has already been effectively repealed in some states! There will have to come a time when everyone recognizes that this government will not acknowledge reason, they will not fear (or lose it seems) lawsuits, and there is no need for truth in the arguments to advance their agenda of “transforming America” into a less free type of nation by “re-defining” our rights as to be meaningless. They have no shame (or fear) in trampling on the rights of “reasonable people”!

        The one time the government “walked on eggshells” and repeated over and over again, “We don’t want to be infringing on anyone’s constitutional rights” – IS WHEN CITIES WERE BURNING, RIOTS RAGING, LOOTING, MASS VIOLENT LAWLESSNESS, MURDER, COP KILLINGS – well everyone knows, for all the mass lawlessness and violence, instead of getting tough, the government was worried about the violent lawbreakers constitutional rights.

        This would not bother me so much if not for the blatant disregard for first, second, and fourth amendment rights for “reasonable America”. IT JUST MAY TAKE AN AGGRESSIVE “AL SHARPTON FOR GUN RIGHTS” – BACKED BY THE THREAT OF VIOLENCE. Everyone says we’re not there yet – but WE ARE AT THE LINE!

        The truth is there comes a time when, if you comply with gun control laws, the line is crossed and citizens no longer have firearms that enable the capability to resist tyranny. That time has come and passed in NY & CT. Once semi-auto rifles and standard capacity magazines are gone, the balance of power is firmly tipped away from citizens. Gun control, for all it’s excuses, is nothing more, and nothing less, than an arms race! As government militarizes and coordinates federal, state, and local law enforcement – they are taking the right of citizens to own firearms capable of “militia” duty. A .45 or a 12 ga may be OK if someone is kicking in your door, but they are under ranged pop guns in the field! If we let our rifles go to gun control – THE FIGHT IS OVER, AND WE HAVE LOST! We have the right, through the second amendment, to own rifles empowering us to come together and WIN against any opponent! The second amendment is a right to power! Once government makes us “harmless to schoolchildren” – we are nothing more than a controlled people at the mercy of whatever tyranny comes our way.
        NOT ONE MORE INCH!!!
        Reply

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  4. If the Bill of ‘rights states: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. – Meaning citizens can come together and fight, if necessary, in the absence of government forces, to provide their own safety and security, against an invading force, or outright lawlessness after a terrorist attack or natural disaster. In addition,the foremost reason for the inclusion of the second amendment was to insure an armed citizenry will have last resort recourse against government tyranny. SO WHY WOULD IT BE REQUIRED THAT OUR AMMUNITION BE “PRIMARILY INTENDED FOR SPORTING PURPOSES”?!! The world over, citizens are “allowed” limited sporting arms, for sporting purposes! THE SECOND AMENDMENT GUARANTEES US MORE – AMERICANS ARE GUARANTEED THE RIGHT TO MILITIA GRADE MODERN FIREARMS AND AMMUNITION!!! We are not supposed to be harmless to law enforcement, as that would ensure we are not seen as a deterrent to tyranny. The second amendment IS A RIGHT TO POWER – TO ENSURE WE ARE A DETERRENT TO TYRANNY! Laws in more and more states are not only geared to making us harmless to law enforcement, but in making us harmless to schoolchildren. The second amendment has already been effectively repealed in some states! There will have to come a time when everyone recognizes that this government will not acknowledge reason, they will not fear (or lose it seems) lawsuits, and there is no need for truth in the arguments to advance their agenda of “transforming America” into a less free type of nation by “re-defining” our rights as to be meaningless. They have no shame (or fear) in trampling on the rights of “reasonable people”!

    The one time the government “walked on eggshells” and repeated over and over again, “We don’t want to be infringing on anyone’s constitutional rights” – IS WHEN CITIES WERE BURNING, RIOTS RAGING, LOOTING, MASS VIOLENT LAWLESSNESS, MURDER, COP KILLINGS – well everyone knows, for all the mass lawlessness and violence, instead of getting tough, the government was worried about the violent lawbreakers constitutional rights.

    This would not bother me so much if not for the blatant disregard for first, second, and fourth amendment rights for “reasonable America”. IT JUST MAY TAKE AN AGGRESSIVE “AL SHARPTON FOR GUN RIGHTS” – BACKED BY THE THREAT OF VIOLENCE. Everyone says we’re not there yet – but WE ARE AT THE LINE!

    The truth is there comes a time when, if you comply with gun control laws, the line is crossed and citizens no longer have firearms that enable the capability to resist tyranny. That time has come and passed in NY & CT. Once semi-auto rifles and standard capacity magazines are gone, the balance of power is firmly tipped away from citizens. Gun control, for all it’s excuses, is nothing more, and nothing less, than an arms race! As government militarizes and coordinates federal, state, and local law enforcement – they are taking the right of citizens to own firearms capable of “militia” duty. A .45 or a 12 ga may be OK if someone is kicking in your door, but they are under ranged pop guns in the field! If we let our rifles go to gun control – THE FIGHT IS OVER, AND WE HAVE LOST! We have the right, through the second amendment, to own rifles empowering us to come together and WIN against any opponent! The second amendment is a right to power! Once government makes us “harmless to schoolchildren” – we are nothing more than a controlled people at the mercy of whatever tyranny comes our way.
    NOT ONE MORE INCH!!!

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