Noem Questions ATF Motive and Intentions with Proposed Ammunition Ban
Washington, D.C. – Rep. Kristi Noem joined House Judiciary Committee Chairman Bob Goodlatte and more than 200 Members of Congress in questioning the motives and intentions of a proposed Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) ban on certain ammunition.
“What the administration is seemingly trying to accomplish serves as a serious threat to the Second Amendment,” said Rep. Noem. “This administration has worked in the past to ban this rifle, but Congress has shut them down. If the President thinks he can work around Congress by banning the second most popular ammunition used in that rifle with his pen, he should take another look at the Constitution.”
On February 13, 2015, the administration issued proposed regulations that would ban the M855 5.56 x 45mm cartridge, or so called “lightgreen tip” ammunition, saying it qualified as an “armor piercing” projectile and could therefore be banned as a means to protect law enforcement officers. Numerous concerns have arisen since the administration’s proposed regulations were released. Most notably, while millions upon millions of M855 rounds have been sold and used in the U.S., no evidence has been presented that even one such round has ever been fired from a handgun at a police officer.
In the letter, Rep. Noem seeks out more information on the “armor piercing” classification, the ATF’s decision not to publish the proposed “Framework” as is required, and what other rounds the ATF is considering regulating as armor-piercing ammunition. A full copy of Rep. Noem’s letter can be found below.
B. Todd Jones, Director
Bureau of Alcohol, Tobacco, Firearms and Explosives
99 New York Avenue, NE
Washington, DC 20226
Dear Director Jones:
We are writing to express our serious concern with the “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),” issued on February 13, 2015.
The proposed “Framework” purports to establish an “objective” test for determining whether certain projectiles otherwise considered “armor piercing” under federal law qualify for an exemption allowing them to be lawfully manufactured, imported, and sold on the civilian market in the United States. The “Framework,” however, establishes an unduly restrictive standard, does not comport with the letter or spirit of the law, and will interfere with Second Amendment rights by disrupting the market for ammunition that law abiding Americans use for sporting and other legitimate purposes.
As you know, the ban on “armor piercing” ammunition was created by the Law Enforcement Officers Protection Act (LEOPA) of 1986. The Act was conceived to protect police officers from the hazards presented by so-called “armor piercing” projectiles–originally designed for law enforcement and military use—that can be fired from handguns and penetrate the sort of soft body armor typically worn by police officers.
To do this, LEOPA bans various sorts of non-lead projectiles or projectile “cores” that “may be” used in handguns. As LEOPA’s authors realized, however, bullets fired from most common rifle cartridges can penetrate soft body armor, and some rifle bullets can be loaded into ammunition for handguns. Congress therefore incorporated an exemption into LEOPA for projectiles “which the Attorney General finds [are] primarily intended to be used for sporting purposes” to protect ordinary rifle ammunition from being swept up in the ban.
The “Framework” is intended to answer the question of how the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) will make “sporting purposes” determinations. It creates a two-prong test. First, ATF will exempt a “.22 caliber projectile … if the projectile weighs 40 grains or less AND is loaded into a rimfire cartridge.” Second, ATF will exempt other projectiles if they are “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.” Even then, ATF –under this supposedly “objective” test – “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 effects of these restrictive interpretations are untenable. For example, since 1986 ATF has considered the M855 5.56 x 45mm cartridge to be “exempt” under the sporting purposes test (although its core contains a substantial amount of lead, raising questions about its classification as “armor piercing” in the first place). ATF has now rescinded that exemption because repeating handguns that fire the M855 round are commercially available. Yet this round is amongst the most commonly used in the most popular rifle design in America, the AR-15. Millions upon millions of M855 rounds have been sold and used in the U.S., yet ATF has not even alleged – much less offered evidence – that even one such round has ever been fired from a handgun at a police officer. The idea that Congress intended LEOPA to ban one of the preeminent rifle cartridges in use by Americans for legitimate purposes is preposterous.
While the banning of these popular cartridges is the most visible and immediate effect of ATF’s shifting policy, the “Framework” has other serious implications. It will, for example, inhibit the development and use of rifle ammunition containing non-lead materials, even as efforts are afoot both at the federal and state levels to impose bans or restrictions on lead ammunition. The eventual collision of these trends could result in drastically reduced options for lawful ammunition users.
Neither LEOPA nor any other provision of federal law is intended to restrict the development of ammunition or handguns that were designed and intended to be used by private citizens for legitimate purposes. Instead, LEOPA should be construed in accordance with the American tradition of lawful firearms ownership, as protected by the Second Amendment. The term “primarily intended to be used for sporting purposes” should be broadly understood to incorporate the many legitimate uses Americans make of their firearms including target practice, hunting, organized and casual competition, training and skills development, and instructional activities.
The “Framework” does not comport with LEOPA’s meaning and intent and should be abandoned. ATF should refocus its efforts on serious threats to law enforcement officers from specially designed armor piercing projectiles that are intended for use in the sort of handguns commonly carried and concealed by criminals. Under no circumstances should ATF adopt a standard that will ban ammunition that is overwhelmingly used by law-abiding Americans for legitimate purposes.
Of additional concern is the manner in which ATF issued the proposed “Framework.” The Administrative Procedures Act (APA) (5 U.S.C. 533) requires that “general notice of proposed rulemaking shall be published in the Federal Register…” To date, the “Framework” has not been published in the Federal Register.
In order for Congress to more fully understand the rationale behind the “Framework” please respond to the following questions by March 13, 2015:
1) How does ATF determine what constitutes the “core” of a projectile that has more than one discrete component or section beneath an outer jacket and upon what provision of law or other principle is that determination based?
2) Why did the ATF not publish the proposed “Framework” in the Federal Register as required by the APA?
3) Under the “Framework,” what other rounds is the ATF considering regulating as armor piercing ammunition?
Thank you for your prompt attention to this request. If you have any questions, please contact Jason Cervenak, Senior Counsel, of the House Judiciary Committee at 202-225-3951.