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ATF…The Alphabet Agency That Needs to Relearn Plain English

by | March 8, 2015

Over the past few weeks the internet has been on fire with articles, comments, petitions and information relating to ATF’s removal of SS109/M855’s (commonly known as “green tip”) exemption from being classified as armor piercing ammunition. This information came to light in ATF’s proposed framework to determine whether a projectile is “primarily intended for sporting purposes” in order to gain an exemption from being classified as armor piercing under 18 U.S.C. § 921(a)(17)(C).

While the removal of the green tip exemption has dominated conversations, individuals seem to be missing the broader implications of the proposed framework, which might be exactly what ATF was trying to do. Now, I’m not proposing that ATF is trying to be insidious, but given their track record with Operation Fast and Furious and about 87 other things, I wouldn’t necessarily put it past them.

At this point, if you are reading this and have not submitted a comment, I encourage you to do so. The information for how to submit one will be at the bottom of this post.

greentip

As the title of this article suggests, it would seem that ATF doesn’t understand the statutory language in Section 921(a)(17). Posters have lamented over and over that the SS109/M855 projectile and/or ammunition does not fit the statutory criteria set out in Section 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.

The proposed framework for analyzing whether a projectile should be granted a “primarily intended for sporting purposes” exemption has two tests.

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.

and

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 nevertheless 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 term “single shot handgun” means 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.

It would seem that ATF is proposing, if the projectile is by definition armor piercing, designed for .22 caliber, weighs more than 40 grains AND is loaded into a centerfire cartridge, the projectile will not be granted an exemption. Even more troublesome, is that ANY projectile, which by definition would be armor piercing, that is not .22 caliber, will not be granted an exemption unless it 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.

These two categories fall short of providing for the exemptions that the firearms community needs. As the EPA and states crack down on lead in projectiles for “environmental reasons”, manufactures and individuals are forced to look at other materials. Brass, an inexpensive metal and good material for hunting projectiles, is one of the enumerated metals in Section 921(a)(17)(B). The implications of this proposed framework being enacted are far reaching.

In the proposed framework, ATF states an exemption was granted in 1986 to SS109/M855 “green tip” ammunition. ATF quotes language in this exemption which was granted, yet did not provide the public with a copy to reference. ATF cites the determination saying

‘…it is well documented’ that the respective ammunition ‘has been recognized as being suitable for target shooting with rifles due to its accuracy.’

ATF then proclaims that when assembled into a complete cartridge, the projectiles were exempt, but ATF did not exempt the projectiles before the cartridges were assembled. The framework continues stating that in applying the proposed framework, the green tip ammunition does not fit into the exemption any longer as it may be used in a handgun other than a single-shot handgun.

There has been much discussion about this “letter” but no one has been able to produce a copy, until now. After a lot of searching and leads given to me by some friends in the industry I was able to obtain a copy of the original determination letter that ATF issued granting the exemption to SS109/M855.

M855-SS109 Determination Letter_Page_2 (2) M855-SS109 Determination Letter_Page_2 (1)

M855-SS109 Determination Letter

In the letter, ATF reviews the definition of armor piercing, which at the time was

The term armor piercing ammunition means 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. Such term does not include … a projectile which the Secretary finds is primarily intended to be used for sporting purposes…

ATF goes on to say

Examination of the SS109 (M855 Ball) ammunition indicates that the projectile is constructed using a full metal jacket and projectile cores constructed of a steel penetrator located forward of a lead core. Based on its construction, the SS109/ M855 projectile meets the above definition of armor piercing ammunition.

Wait, did ATF just say that the projectile is constructed of two cores, one being a steel penetrator and the other being lead? It sure sounds that way. But referring back to the statute their reading doesn’t quite comport with the statutory definition.

As I’ve been contending all along, ATF never had the authority to grant an exemption to SS109/M855 as it never met the statutory criteria to be armor piercing!

Let’s examine the statutory definition of armor piercing by breaking it down and applying it to SS109/M855. First, the statute regulates a projectile or projectile core. So far, it’s applicable.

Second, the statute requires that the projectile or projectile core may be used in a handgun. Again, applicable as there were handguns during the mid 80’s which could fire a .223/5.56 cartridge.

Third, the statute requires the projectile or projectile core be constructed entirely from one or a combination of a list of enumerated materials, steel being one of them. And this is where ATF failed to understand plain English.

SS109 Cross Section from AR15.com's Ammo Oracle

The steel penetrator found in SS109/M855 is not the core. Since ATF developed an affinity for utilizing dictionaries in order to define terms, I think it is only proper I do the same.

Dictionary.com defines “core” as a noun meaning “the central, innermost, or most essential part of anything.”

As the makeup of SS109/M855 has been examined by numerous posters online, it is hardly fair to characterize the steel penetrator, which weighs a scant 10 grains, the core. Especially when compared to the lead portion of the projectile which weighs 32 grains. The remaining 20 grains come from the copper jacket, which given its relative position, could not conceivably be argued to be the core.

Photo from TexasRifleman1985 via AR15.com

It would seem readily apparent that ATF had no authority to grant an exemption to SS109/M855 ammunition as it was never armor piercing by definition.

Want to get involved? There is still time. Submit your comment by March 16, 2015. You can do so in one of three ways:

ATF website: [email protected]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.

FOR FURTHER INFORMATION CONTACT: Denise Brown, Enforcement Programs and Services, Office of Regulatory Affairs, Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S. Department of Justice, 99 New York Avenue, NE, Washington, DC 20226; telephone: (202) 648-7070.

Ares Armor Writes Hilarious Letter to ATF in Crayon

In an open letter to the BATFE, Dimitrios Karras of Ares Armor wrote a letter thanking them for defining what a weapon is, what a receiver is, and excoriates them on mistakes they made in their recently published 2015-01 ruling. The entire letter is published below along with the crayon version that is sure to be a big hit in the pro liberty community.

 

The Honorable B. Todd Jones
Director Bureau of Alcohol, Tobacco, Firearms, and Explosives
99 New York Avenue, N.E.
Washington, D.C. 20226

Dear Director Jones,

I have read ATF Rul. 2015-1 which was intended to clarify your position on several issues. I would like to thank you for your indirect admission that a firearm receiver is not a “receiver”, as defined by the GCA of 1968, until it can house all of the necessary parts that it is intended to house. I know this was not your intent. However, your words are very clear.

PART 1. Statements and Admissions

  1. ) A “frame or receiver” and a “weapon”, are separately and uniquely defined in the GCA of 1968.

You correctly state on page 2 the following,

Section 921(a)(3), defines a “firearm,” in relevant part, as both a “weapon … which will or is designed to or may readily be converted to expel a projectile by the action of an explosive” (921(a)(3)(A)), and the “frame or receiver of any such weapon”

You correctly observe that both a “weapon” and the “frame or receiver” of a weapon are defined separately in the GCA. Thank you for this admission!

  1. ) The “may readily be converted” phrase only applies to “weapon” and not to “receiver”.

As can be seen by your admission, these are defined separately. Therefore, you are also admitting that “may readily be converted” applies only to “weapon” and not to “frame or receiver”. Thank you for this admission!

  1. ) The meaning of the word “manufacture” is “to make into a product suitable for use.”

On page 3 you correctly quote the Broughman Case,

See Broughman at 675 (“[T]he plain and ordinary meaning of the word ‘manufacture’ is ‘to make into a product suitable for use.’” (quoting Merriam-Webster Online Dictionary (2010))…

You love to quote court cases that agree with you and ignore ones that don’t agree. However, thank you for this admission!

  1. ) An object that is NOT suitable for use as a “receiver” is NOT classified as a “receiver”.

On page 2 and 3 you state the following,

“…it generally requires substantial additional machining before it can accommodate fire control components such as a trigger, hammer, or sear…”

“…incapable of being assembled into a weapon…”

And my personal favorite quote on page 3,

“ATF Ruling 2010-10 assumes that a licensed dealer-gunsmiths would perform certain activities on articles ALREADY classified as frames or receivers (i.e., no machining or other processes required to allow it to be used to assemble a weapon)… *emphasis added

Here, you have very clearly stated that an item that requires “machining or other processes” before it is suitable for use in assembling a weapon would not ALREADY be classified as a frame or receiver. THANK YOU FOR THIS GIGANTIC ADMISSION!

  1. ) Indexing marks DO NOT make a random object into a “receiver”.

On page 3, you incorrectly and in pompous contempt of the Court make the following statement,

Although such an article may be classified as a “receiver” when it is indexed…

As you are fully aware, this is direct conflict with UNITED STATES v. PRINCE. The ATF has already lost this argument in Federal Court. I have mentioned this case in previous communication with you. It is fully on record that you are aware of this case and its implications. Your choice to ignore this case is despicable at best.

“The court finds that the metal flat shipped to Prince is not a firearm. The court carefully considered the expert testimony of Agent Adam Galbraith, and reviewed the material submitted by the government concerning ATF opinions. However, the court simply does not believe that a flat piece of metal with laser perforations and holes constitutes a “receiver,” i.e., a “firearm.” Rather, the flat piece of metal is somewhat akin to a piece of paper with lines drawn on it as a guide to make a paper airplane. Although making the paper airplane might be the intended use, it is not an airplane until it is properly folded. Until that time, it is a patterned piece of paper. Simply put, this court has no evidentiary or legal basis for holding that a flat piece of metal with laser perforations and some holes constitutes, ultimately, a “firearm.””
http://caselaw.findlaw.com/us-10th-circuit/1506044.html
PART 2. The Lunacy Of Your Conclusions
On pages 4 and 5 you state the following,

However, when a licensed gunsmith takes in a frame or receiver to perform machining or other manufacturing process, that gunsmith “distributes” a firearm to the customer upon return because that manufacturing activity results in the making of a different “frame or receiver” and also a “weapon…which will or is designed to or may readily be converted to expel a projectile” –both defined separately as a “firearm” under the GCA.

You somehow confusingly conclude that even though both terms are defined separately, a “receiver” is a “weapon…which will or is designed to or may readily be converted to expel a projectile”

Let me ask one simple question… If a “receiver” is a “weapon”, why are they defined separately and uniquely in the GCA as firearms?

A “receiver” by itself cannot be “readily converted to expel a projectile” as the receiver by itself lacks the necessary parts. I would love to hand you a receiver and ask you to readily convert it into a weapon. Perhaps you would do that hand waiving Jedi-Mind trick thing you did to Congress when you were asked about why you raided my business!

A receiver is PART of a weapon. A receiver is NOT a weapon by itself, as it is clearly defined separately and uniquely in the GCA per your own admission.

Riddle me this one Batman… If a “receiver” is a “weapon” then it must have an individual part of itself that is a “receiver”, which would be classified separately from it as a “firearm”… So where exactly is it that I can buy this mysterious “receiver, of a receiver, of a receiver, of a receiver” that you refer to?
PART 3. The Common Sense Conclusion Based On Your Statements.

  1. ) A “frame or receiver” and a “weapon”, are separately and uniquely defined in the GCA of 1968.
  2. ) The “may readily be converted” phrase only applies to “weapon” and not to “receiver”.
  3. ) The meaning of the word “manufacture” is “to make into a product suitable for use.”
  4. ) An object that is NOT suitable for use as a “receiver” is NOT classified as a “receiver”.
  5. ) Indexing marks DO NOT make a random object into a “receiver”.

I conclude, based off of your statements, that one cannot be charged with a crime of “manufacturing” (make into a product suitable for use) an AR “receiver” ( “[t]hat part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.”) if that “receiver” does not provide housing for any of the intended mechanisms.

I would like to thank you for your clarification that NOT drilling the through holes for the fire-control group (safety selector, trigger pin, and hammer pin) would be sufficient to have NOT manufactured a “receiver”.

Just to sink your own words in one more time, I will provide you with your quote from page 3 again,

“ATF Ruling 2010-10 assumes that a licensed dealer-gunsmiths would perform certain activities on articles ALREADY classified as frames or receivers (i.e., no machining or other processes required to allow it to be used to assemble a weapon)… *emphasis added

I expect that you will issue a letter in response to this stating that one can manufacture a 99% receiver (missing only the 3 holes for the fire control group) and not be charged with “manufacturing a ‘firearm’”.

I salute you on your efforts of making the hobby of building firearms at home easier!

To make things easier for you and your agents to understand, I have commissioned these concepts to be drawn in crayon. I have attached this drawing to this letter. You are welcome.

You block, you stone, you worse than senseless thing,

Dimitrios Karras
One of Your Restless Villagers
Semper Fi!

View the ‘Crayon Version’