richard patterson
executive director
March 16, 2015
VIA E-MAIL and FASCIMILE
Denise Brown
Office of Regulatory Affairs
Bureau of Alcohol, Tobacco, Firearms, and Explosives
U.S. Department of Justice
99 New York Avenue, N.E.
Washington, D.C. 20226
RE: AP Ammo Comments – 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).
Dear Ms. Brown:
I am writing to you on behalf of the Sporting Arms and Ammunition Manufacturers’ Institute, Inc.
(“SAAMI”), an association of the nation’s leading manufacturers of firearms, ammunition, and
components. SAAMI was created in 1926 at the request of the U.S. government to create standards for
safety, reliability, and interchangeability in the design, manufacture, transportation, storage, and use of
firearms, ammunition and components. We are a technical and standards-setting organization accredited
by the American National Standards Institute (“ANSI”). We appreciate the opportunity to comment on
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) (the “Framework”).
The Framework details a new process to analyze whether projectiles that would otherwise be classified as
armor piercing ammunition (“APA”) may qualify for an exemption under 18 U.S.C. § 921(a)(17)(C) as
“primarily intended to be used for sporting purposes.” Although the Framework notes “that only
projectiles that meet the statutory definition of ‘armor piercing’ – i.e., those made out of the specific listed
materials that may be used in a handgun – are subject to the statutory restrictions” we have grave
concerns as to how the Framework will be applied to comport with this goal.
I.
Proposed Sporting Purpose Framework.
The Framework provides the new process by which ATF will consider whether APA qualifies for an
exemption pursuant to Section 921(a)(17)(C) as “primarily intended for sporting purposes.” The
Framework continues to recognize .22 rimfire firearms and ammunition as primarily intended for sporting
use” due to the fact that their use is generally limited to small game at short distances.1 Except for those
.22 caliber rimfire projectiles, other APA will be presumed to be “primarily intended to be used for
sporting purposes” 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.” Based on this new
guideline, ATF seeks to withdraw the exemptions for 5.56 mm “green tip” ammunition, including both
the SS109 and M855 cartridges, while leaving in place the exemption for .30-06 M2AP cartridges.
1
The Framework ignores other popular handgun calibers, the projectiles of which may now be called into question
by this proposal if they are manufactured with an alternative enumerated metal, such as the: 22 Hornet; 220 Swift;
17 HMR; 223 Remington; 30-30 Winchester; 308 Winchester; 45-70 Government; 30 carbine; 7.62 x 39 Soviet;
5.56mm NATO; .500 Wyoming Express; and .22 TCM.
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2
The Law Enforcement Officers Protection Act of 1986 (Pub. L. No. 99-408) (“LEOPA”) amended the
Gun Control Act of 1968, 18 U.S.C. Ch. 44, to address APA concerns. When the 5.56mm SS109 and
M855 exemptions were provided by ATF’s predecessor agency, the Department of the Treasury, there
was not the overwhelming popularity of the AR platform as seen today. Even so, at least one handgun
was on the market and chambered for the .223 Remington cartridge and could function with 5.56mm
ammunition.2 The Framework now seeks to address the popularity of AR-type rifles and handguns
chambered to accept 5.56mm SS109 and M855 “green tip” ammunition. We are concerned that the
Framework focuses on criminal intent rather than manufacturer intent to determine whether ammunition
is “primarily intended for sporting purposes.”
SAAMI publishes four technical manuals, which are considered the benchmark for cartridge design.3
When a cartridge is submitted to SAAMI for consideration, part of the application includes delineation of
the intended use of the cartridge. The application then goes through a rigorous acceptance process within
SAAMI, which culminates in review and consensus acceptance in a formal standards-setting process.
This consensus process must follow the stringent rules established by ANSI, the U.S. representative to the
International Standardization Organization. The reviewing body categorically includes accredited Testing
Laboratories, recognized Experts in the field, Producers of products associated with the standard but not
directly affiliated with SAAMI, and representatives from Government agencies/departments such as the
Royal Canadian Mounted Police, the Federal Bureau of Investigation, the Association of Firearms and
Tool Mark Examiners, National Institute of Standards and Technology, Federal Law Enforcement
Training Center, and the U.S. Customs and Border Patrol. It must be understood that the intention of the
manufacturer, review and acceptance by the entire SAAMI organization, and the review committee when
taken together are clearly and unequivocally established as intended for use, which serves as the definitive
tool for identifying cartridges that were designed and intended for use in centerfire pistols and revolvers.
To consider the intent of an end user rather than the manufacturer’s intended use would upend the
standards-setting process.
The Framework states that: “[Conventional rifle] ammunition meets the content requirement of the
definition,” but fails to address whether aspects of the definition comport with the composition of M855
and SS109 ammunition. There is no indication as to whether ATF considers the ammunition to fall under
the APA definition in Section 921(a)(17)(B)(ii) as a “full jacketed projectile.” If the M855 and SS109
ammunition meets the requirements of Section 921(a)(17)(B)(i) then the design intent may not matter,
and its inclusion in the definition of “armor piercing” lies in whether the ammunition may be used in a
handgun. Alternatively, if the ammunition fails the full jacket and total weight test under Section
921(a)(17)(B)(ii) then intent will certainly factor into any subsequent analysis because this test requires
that the round be “designed and intended for use in a handgun.” Under the (B)(ii) test, the only person
who can make a determination as to the design and intent is the manufacturer of the ammunition. While
consumers may intend to place an armor piercing round in a handgun, their intent is irrespective and
separate from the intended use and design requirement of Section 921(a)(17)(B)(ii).
2
There were a small number of handguns produced during the time of LEOPA’s passage chambered for the 5.56mm
cartridge and that the majority of those handguns were designed as long range competition guns. We also note that
the 5.56mm NATO and .223 Remington cartridges are not identical. A 5.56mm cartridge may exceed SAAMI
chamber pressure limits when fired from a .223 Remington chamber.
3
The four technical manuals cover rimfire, shotshell, centerfire rifle, and centerfire pistol and revolver and detail the
voluntary industry performance standards for pressure and velocity of ammunition for use by commercial
manufacturers.
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3
The Framework seeks to determine whether ammunition is “primarily intended for sporting purposes” by
analyzing the intent of an end user rather than the intent of the manufacturer, which thwarts all reasonable
interpretations of Section 921(a)(17)(C) and ignores the SAAMI acceptance process.
II.
What is the “Projectile Core”?
Section 921(a)(17)(B)(i) refers to a “projectile or projectile core, which may be used in a handgun,” but
fails to define what is meant by the projectile core. As noted above, the Framework succinctly states that
the 5.56 SS109 and M855 ammunition “meet[] the content requirement of the definition,” but does not
address whether it is the projectile or projectile core that is implicated. No definition of “projectile core”
is provided in the Gun Control Act, but SAAMI defines a bullet “core” to be the “inner section of a
jacketed bullet.” Sporting Arms and Ammunition Institute Glossary of Industry Terms, available at
www.saami.org/glossary. In layman’s terms, core is generally defined and understood as the “central or
innermost part.” The American Heritage Dictionary 317 (4th ed. 2004).
The SS109 and M855 ammunition consists of a projectile core constructed of a steel core component
forward of the lead core component. The cartridge was designed to have increased accuracy and range
over its predecessor, the M193 ball cartridge. The question raised by the definition of APA is what is
meant by “projectile core,” and whether it refers to the lead base or the steel core component or is viewed
as a more general statement of the interior of the bullet. There are two ways of viewing this ammunition:
(1) as a core constructed of a steel core component forward of the lead core component; or (2) as a steel
core with a lead base. It is clear from the testimony ATF Director B. Todd Jones provided last week to
the Senate Appropriations Subcommittee on Commerce, Justice and Science and Related Agencies, that
ATF’s position is that “projectile core” refers to the steel core component. See Tr. of S. Appropriations
Subcomm. on Commerce, Justice and Science and Related Agencies, Hrg. on President Obama’s Fiscal
2016 Budget Request on the FBI, U.S. Marshals Service, Drug Enforcement Administration, and Bureau
of Alcohol, Tobacco, Firearms and Explosives (March 12, 2015) (“The classification for that particular
round, which is military surplus, which is 5.56, 62 grain, steel-core, following into the parameters of
LEOPA’s armor-piercing, was given and it's had an exemption for 30 years. It’s been on the market for
that long. It’s been available to folks for 30 years or more.”). Despite the Director’s statement, it is hard
to reconcile a plain reading of “projectile core” to mean anything other than to account for both the steel
core component and the lead core component, especially when considered from the perspective of the
SAAMI definition of “core.”
Under the requirements of Section 921(a)(17)(B)(i), armor piercing ammunition means: “the 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.” While we accept that the Director has determined that M855
ammunition has a purely steel core, this determination wholly ignores the presence of lead in the core.
Section 921(a)(17)(B)(i) requires that the projectile or projectile core be constructed entirely of one of the
prohibited elements for the definition of APA to attach to the projectile or projectile core. Because there
is some question as to whether 5.56mm ammunition in SS109 and M855 cartridges satisfies the
composition requirements of the APA definition, we urge the ATF to provide more details regarding the
technical determinations that were made in making this determination.
III.
What is the Meaning of “Armor Piercing”?
The Framework seeks to withdraw an exemption for the SS109 and M855 “green tip” ammunition
because, under the new analysis, they do not meet the new requirements as “primarily intended to be used
for sporting purposes.” There is some question as to whether this ammunition is actually “armor
piercing” within the definition of Section 921(a)(17)(C) and what is considered to be “armor” for
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purposes of LEOPA. It is important to remember as an initial matter that body armor is not “bulletproof,”
rather there are varying types of armor that are resistant to varying ballistic threats. In the military
context, a projectile is considered to be “armor piercing” if it has the capability to penetrate light armored
vehicles or reinforcements. Ammunition that is categorized as “armor piercing” is designated by a black
tip on all calibers. It is more likely, however, given the context in which LEOPA was passed that the
“armor” in Section 921(a)(17)(C) refers to body armor worn by law enforcement officers, but even this
inference raises additional questions.
There are two general types of body armor worn by law enforcement officers: “soft body armor” and
“hard body armor.” The National Institute of Justice (“NIJ”) sets voluntary minimum performance
standards to rate the level of protection provided by body armor.4 Standard 0101.06 “specifies five levels
of ballistic performance for body armor.” NIJ Guide at 13. Ballistic level types IIA, II, and IIIA are
typically “soft” armors that a law enforcement officer comfortably could wear throughout the duration of
a shift, while ballistic level types III and IV are hard armors to be worn in tactical situations or when the
threat level demands increased protection.5 Id. Ballistic performance level type IIA is a soft body armor,
which will generally provide minimal protection against smaller caliber threats such as from a 9mm FMJ
RN or 40 Smith and Wesson FMJ. Id. Type II soft armor will provide protection against many common
caliber pistols with standard ballistic pressure such as a 9mm Luger RN or 357 Magnum JSP. Id.
Finally, type IIIA provides the highest level of protection in soft armor and will generally protect against
many higher powered revolvers associated with 357 SIGFMJ FN or 44 Remington Magnum. Id.
Based on the plainest understanding of the NIJ Standard 0101.06 tests, most .223 or 5.56 mm projectiles,
whether of lead or steel construction or fired from a rifle or a handgun will not be stopped by soft body
armor. Additionally, most non-expanding round nose FMJ handgun ammunition above 1300fps will
defeat armor categorized in ballistic levels IIA through IIIA. Because velocity must be taken into account
when determining whether ammunition is “armor piercing” any definition cannot solely rely on bullet
composition or construction.6 Although we are not aware of a test having been done to this effect, there
may be a situation in which a 5.56mm projectile may be loaded in such a way so as not to penetrate the
lowest ballistic levels of soft body armor.7 For these reasons, we believe there are too many variables
relative to projectile shape, construction, and muzzle and impact velocity to categorize body armor
effectiveness on cartridge type alone as the Framework proposes.
IV.
M855 Ammunition May Fail to Meet the Definition of “Armor Piercing.”
Under the requirements of Section 921(a)(17)(B), armor piercing ammunition means:
(i)
the 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
4
See U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, Body Armor Guide (Dec.
2014), available at https://www.ncjrs.gov/pdffiles1/nij/247281.pdf (“NIJ Guide”).
5
Types III and IV will, respectively, withstand ballistic threats from 7.62mm FMJ (M80) and .30 Cal AP (M2 AP)
rifle rounds.
6
The NIJ tests armor at higher velocities than what a law enforcement officer is expected to come in contact with
“on the street.” This higher level testing is done to “account for variations in bore type, barrel length, propellant
loads, bullet construction and other variables” so as to provide greater confidence in performance ability of the
armor. See NIJ Guide at 13.
7
The NIJ Standard-0101.06 test acknowledges that “[t]he degree to which a firearm poses a threat depends in large
measure on the nature of the ammunition it fires.” NIJ Guide at 11.
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5
(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% of the total weight of the projectile.
As previously discussed, the core of the M855 ammunition is comprised of both steel and lead component
parts. Although ATF is of the opinion that the M855 round has a steel core, we believe the presence of
the lead component may place the M855 round beyond the reach of Section 921(a)(17)(B)(i), which
requires the projectile or projectile core to be made entirely of an enumerated metal. If this is the case,
then the M855 ammunition must then meet the requirements of 921(a)(17)(B)(ii) or fall beyond the
definition of APA. The SAAMI specification for the M855 projectile diameter is 5.7 mm, or .224 inches
and is referred to as a “.22 caliber.” Because the first requirement is not met, there is no need to turn to
the question of whether the M855 was “designed and intended for use in a handgun.” However, there can
be little question that the M855 round was originally designed for use in a machine gun or rifle and
“intended for use against personnel and unarmored targets” and not “designed and intended for use in a
handgun.” See Technical Manual 43-0001-27, Army Ammunition Data Sheets Small Caliber
Ammunition FSC 1305 p. 10-19 (Apr. 1994); 18 U.S.C. § 921(a)(17)(B)(ii). Based on these technical
concerns, we believe the M855 ammunition may not meet the definition of APA under LEOPA, thus
making its current exemption unnecessary and the Framework’s proposal to rescind those exemptions an
overreach of the authority conferred by Congress in Section 921(a)(17)(B).
V.
Conclusion.
SAAMI and its member companies are dedicated to the responsible use of firearms and work to instill
that sense of responsibility in others. Despite the admirable goal of preventing unnecessary harm to law
enforcement through the ban of APA, we are of the opinion that the Framework’s approach to analyzing
sporting purpose overlooks numerous flaws in the definition of what “armor piercing” truly means and
should be reevaluated with an eye to the concerns detailed above.
Sincerely,
Richard Patterson
Executive Director
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