International Legan Affairs: V7N3

M855 – What’s the Big Deal?

Pay any attention to American politics, and the reader will know that the ATF recently attempted to reclassify and effectively ban M855 5.56mm ammunition. Thankfully, the effort was thwarted for the moment, but what was the big deal? How and why did ATF believe that they had the power to ban a specific type of ammunition? To answer that question, we need to examine a bit of history.

The Legislative History of Armor Piercing Ammunition

In the 1970s, law enforcement officers became increasingly worried about the availability of armor piercing (AP) ammunition capable of being fired from a handgun. Comfortable and effective body armor was becoming available to more police officers at a reasonable price. Rather than fight an escalating war of increasing firepower, an attempt was made to limit and restrict AP ammunition capable of being fired from a handgun. As many rifle shooters know, most body armor cannot stop a common rifle projectile; those that are able to stop a rifle projectile are usually very heavy, cannot be concealed, and are effective against only one or two impacts. Restrictions against rifle ammunition capable of penetrating a protective vest would instantly classify most as AP. The restriction against AP ammunition was thus limited to handgun ammunition.

In response to law enforcement demands for action, The Law Enforcement Officers Protection Act of 1985 was debated and became law. When applied in conjunction with provisions of the Gun Control Act of 1968, these two pieces of legislation become singularly important, as one cannot operate without the other in defining and prohibiting the possession of M855 ammunition.

The Gun Control Act of 1968

The early 1960s were a turbulent period highlighted with the assassinations of John F. Kennedy (1963), Malcom X (1965), Martin Luther King (1968), and Robert Kennedy (1968). Add the University of Texas shooting in 1966 with a call to restrict the possession of firearms, and one finds the Gun Control Act (GCA) of 1968 – the first major piece of U.S. anti-gun legislation since the National Firearms Act of 1934. For the purpose of this analysis, a singular piece of the GCA is relevant – the Sporting Purposes Test.

The Sporting Purposes Test was passed as part of the GCA, and grants the U.S. Attorney General the ability to restrict the import and manufacture of any firearm or ammunition that is not “generally recognized as particularly suitable for or readily adaptable to sporting purposes.” The actual language within the law is quite bare, with interpretation of the clause left to the governing agency – the ATF. As demonstrated in prior acts, the sporting purpose test has been used for political gain, namely in 1986, when “assault style” rifles were banned from import into the U.S. Other acts in the name of “sporting purpose” include the determination that Striker-12 and USAS-12 shotguns had no legitimate sporting purpose as Title 1 firearms, and were re-classified as destructive devices. The basis for the attempt to ban M855 ammunition comes in part from the sporting purposes test.

The Law Enforcement Officers Protection Act of 1985

During debate of the Law Enforcement Officers Protection Act of 1985, (LEOPA), Congress sought a ban on ammunition that was capable of penetrating body armor, and that could be fired from a handgun. Senator Moynihan (D-NY) testified that the intent of the bill was to only ban ammunition that both met a performance standard and was designed to be used in a handgun.

“[L]et me make clear what this bill does not do. Our legislation would not limit the availability of standard rifle ammunition with armor-piercing capability. We recognize that soft body armor is not intended to stop high powered rifle cartridges. Time and again Congressman Biaggi and I have stressed that only bullets capable of penetrating body armor and designed to be fired from a handgun would be banned; rifle ammunition would not be covered.” (Hearings, Senate Committee on the Judiciary, 98th Congress, 2d Session, May 17, 1984. 30-31. (Senator Moynihan) (emphasis added).

Sadly, this important point was not included in the final bill. The final bill did not include either a performance-based standard, nor limit the definition of armor piercing ammunition to ammunition “designed” for use in a handgun. Instead, the bill used different language based upon the composition of the ammunition and whether the subject ammunition may be used in a handgun. The legal framework under which ammunition in the United States is now defined is found in 18 U.S.C. 921 (A)(17)(B):

(B) The term “armor piercing ammunition” means—

(i) a projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper or depleted uranium; or

(ii) a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile.

18 U.S.C. 921 (a)(17)

As a result, all ammunition that meets the composition criteria of the law and may be fired from a pistol is defined as AP ammunition. Although the LEOPA ultimately did not include a performance standard as contemplated during debate, the law did give the U.S. Attorney General the power to exempt ammunition that otherwise falls within the definition of AP ammunition, but is “primarily intended to be used for sporting purposes.”

Exemptions have been issued in the past. In 1986, ATF exempted M855/SS109 ammunition under the sporting purposes test. Similarly, in 1992, ATF exempted the .30-06 M2 AP cartridge from the regulation. According to ATF, since 2011 there have been approximately 30 exemption request for AP ammunition.

The Present

Much has changed since 1985, and like most regulatory frameworks, the law has not kept up with industry. Demand for lead free ammunition as a safer alternative to traditional hunting ammunition has created ammunition that was not commercially available in 1986. New lead free ammunition relies upon steel and tungsten in shot shells, and copper-based projectiles for rifle ammunition. Often, the copper-based projectiles may be 95% – 100% copper based, with a small percentage of zinc or other metal.

Similarly, increased awareness of NFA firearms, combined with the inability to secure a law enforcement sign off has created a market for pistols based upon full sized rifles. Examples include the SIG 556 pistol, a .223 caliber pistol based upon the SIG 556 rifle, or any number of AK-type pistols, based upon the design of the semiautomatic AK-47 rifle. Such pistols were not available, and were barely conceivable in 1985. Substitution of the law enforcement sign off requirement for the NICS program may have helped alleviate some of the current issues with NFA look-alike firearms, but ultimately, these types of pistols were likely to come to market eventually.

When both issues are combined, the issue over AP ammunition and enforcement of the law becomes relevant. According to ATF, the correct framework under which to examine the legality of M855 ammunition is the LEOPA and the regulatory intent of the legislation – namely, the safety of law enforcement officers and application of the sporting purposes test. ATF asserts that the only means of examining the M855 round is to determine whether a pistol fires the M855 round, and whether the M855 round meets the requirements of AP ammunition as described in 18 U.S.C. 921 (a)(17). If both conditions are met, by definition, the M855 round is armor piercing. The U.S. Attorney General may then choose whether to exempt the M855 under the sporting purposes test.

ATF Takes a Tumble.

Laws are made by Congress. Interpretation is assigned to the agencies that govern that subject matter. As a result, discharge from a smokestack would be governed by the Environmental Protection Agency (EPA). The EPA would be tasked with creating rules and regulations necessary to enforce laws created by Congress. The same applies to firearms. Congress passed the GCA and LEOPA. ATF in turn creates rules and regulations needed to interpret and enforce the law. As one might guess, interpretation and enforcement is political, and may (or may not) conform to societal norms or industry expectations.

Rulemaking is also governed by law. Federal agencies are required to follow the Administrative Procedure Act, a law that dictates how rules and regulations are made. In general, the agency makes an announcement of a proposed rule, calls for comments from the public, reviews and responds to the comments made, and announces the final rule. This process can take several months or more. Changes to existing rules call for the same type of prior notice and comment period.

On February 13, 2015, ATF published the 2014 ATF Regulation Guide. The prior guide was published in 2005, making the newly updated guide relevant and necessary. Within the guide, ATF omitted the current AP exemption for M855 ammunition from the regulations.

On February 14, one day after publishing the 2014 regulatory guide, ATF called for comments to revoke the current exemption in place for M855 ammunition. Within the call for comments, ATF specifically calls for a determination of whether certain projectiles are “primarily intended for sporting purposes” within the meaning of 18 U.S.C. 921 (a)(17)(c) – invoking both the LEOPA and the GCA as the basis for the proposed rule change. Comments were to be accepted through March 16, 2015.

On the face of the call for comments, the rule change appeared neutral. Nevertheless, ATF has consistently interpreted “sporting purposes” to only include the traditional sporting uses for firearms – namely, hunting, competitive target shooting, and skeet and trap shooting. ATF’s historical interpretation of the sporting purposes test does not include plinking or practical shooting, which ATF has ruled to be police or combat-style competition, and not “sport.” M855 ammunition can be used in hunting, but its use is limited. Although neutral on its face, and in conjunction with the totality of ATF’s actions, the call for comments was likely a precursor to a rule change revoking the exempt status of M855 ammunition.

On March 6, ATF attempted to calm public fears and outrage through Twitter by tweeting, “Nothing to analyze here folks, just a publishing mistake. No AP ammo
exemptions revoked.”

On March 10, ATF published a special advisory, noting that more than 80,000 comments had already been received.
ATF also noted:

“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, ATF will not at this time seek to issue a final framework. After the close of the comment period, ATF will process the comments received, further evaluate the issues raised therein, and provide additional open and transparent process (for example, through additional proposals and opportunities for comment) before proceeding with any framework.” (Emphasis added.)

By the close of the comment period on March 16, a reported 300,000 comments had been received by ATF, the majority of comments against the proposed ATF rule change.

On March 10, ATF also published a Notice of Publishing Error, noting that the 2014 ATF Regulation Guide omitted the AP exemption for M855 ammunition, but that “ATF has not rescinded any armor piercing ammunition exemption, and the fact they are not listed in the 2014 online edition of the regulations was an error which has no legal impact on the validity of the exemptions.” ATF asserts that the oversight will be corrected in the near future, and the exemption added to the 2014 regulatory guide.

On March 12, in testimony before the U.S. Senate Appropriations Subcommittee on Commerce, Justice and Science, ATF Director B. Todd Jones said that ATF would not act on more than 30 requests (some pending for more than three years) for sporting use exemptions (i.e., an AP exemption) sought by ammunition makers for non-traditional ammunition designs without a new regulatory framework in place. ATF has acknowledged these petitions are for the hunting market, which they regard as a “traditional sport.” In theory, exemptions for the pending exemption request should be granted quickly and easily through the sporting purposes test.

Finally, on March 20, ATF Director B. Todd Jones announced his resignation, nine months after being confirmed to the position by Congress. Although Jones announced that he would be taking a position with the National Football League, the timing and extremely short tenure as Director speaks volumes about a political agenda and the Director’s failings.

The Future

It is important to note that ATF has not abandoned its efforts to re-classify M855 ammunition. Within the March 10 announcement, the agency states that “ATF will process the comments received, further evaluate the issues raised therein, and provide additional open and transparent process… before proceeding with any framework.” Curiously, was ATF referring to the 2014 regulatory guide omission when it was referring to providing an open and transparent process? By law, ATF is required by the APA to publish a draft of the proposed rule change and allow a comment period. Any efforts by ATF in the future should require public disclosure and input, but given the political nature of the agency, awareness and vigilance will be required.

The preceding article is not intended as legal advice, and should not be taken as legal advice. If the reader has specific legal questions, seek competent legal counsel.

Mr. Wong is a Washington licensed attorney. He regularly provides legal counsel to the firearm and defense industry via his law firm, The Firearms Law Group. Mr. Wong also maintains Hurricane Butterfly, an import/export company that assists U.S. firearm manufacturers and foreign buyers wade through the regulatory quagmire of U.S. import/export regulations. He may be found online at FirearmsLawGroup.com.