ATF: Reclassification of M855/SS109 ammo as armor-piercing

[Webleymkv]

Honestly, I really don't see how the ATF has a leg to stand on with this one. From the link in the OP:

Specifically, the definition of “armor piercing ammunition” in 18 U.S.C. 921(a)(17)(B) provides:
(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.

emphasis added

Now, the core of M855/SS109 ammo does contain steel, but it is not composed entirely of steel as specified in the law and it does not contain tungsten, iron, brass, bronze, beryllium copper, or uranium. It seems to me that the ATF is trying to say that the law prohibits ammunition with any steel in it's core but, fortunately, the law is actually fairly specific about what constitutes an "armor piercing bullet" (specificity seems to be something of a rarity in federal gun laws). As anyone who has ever seen a cross section of an M855 bullet (and there's lots of pictures online) can tell you, a good portion of the bullets core is lead (about half) and the steel penetrator is basically a steel cone sitting on top of the lead core. Because of this, I really don't see how it could meet the definition that 18 U.S.C. 921(a)(17)(B) specifies.

Honestly, I think that the degree of specificity outlined in the law makes the ban on 7N6 ammo pretty questionable. However, I suspect the argument there is that the lead inlay around the steel penetrator is thin enough that it's considered an inner jacket rather than part of the core. I also note that the ratio of steel to lead in 7N6 is much greater than in M855. Regardless, the construction of M855 is different enough from 7N6 to eliminate these vagarities.

Honestly, the fact that the ATF ever issued an "exemption" for M855 is something of a red herring. M855/SS109 is not and never was "armor piercing ammunition" per the letter of the law. The fact that the ATF even considered "interpreting" it as such strikes me as a blatant attempt to see just how far they can over step their bounds before anyone does something about it.

 

[Tom Servo]

Because of this, I really don't see how it could meet the definition that 18 U.S.C. 921(a)(17)(B) specifies.

It never did, which was one of the main concerns. A plain reading of the law should have scotched this proposal before it was even written.

My guess is that they decided to see how much they could get away with. The question on my mind at the moment is, "why did they withdraw it now?" They could have enacted it, let us spend the money on the lawsuit, then let the next administration deal with it.

The timing is just odd.

 

[Webleymkv]

Originally Posted by Tom Servo
Quote:
Because of this, I really don't see how it could meet the definition that 18 U.S.C. 921(a)(17)(B) specifies.

It never did, which was one of the main concerns. A plain reading of the law should have scotched this proposal before it was even written.

We are in perfect agreement, see the last paragraph of my previous post

My guess is that they decided to see how much they could get away with. The question on my mind at the moment is, "why did they withdraw it now?" They could have enacted it, let us spend the money on the lawsuit, then let the next administration deal with it.

The timing is just odd.

Again, I agree that they were probably just trying to see how far they could push things. As to the timing of dropping it, I don't really have a good answer for that either. The only people likely to receive any sort of backlash over this would be the administration and that's kind moot at this point: President Obama is already more than halfway through his final term and his party will be in the minority in congress for the remainder of his term. Also, nobody in congress would have to have a voting record on the issue anyway.

The only thing I can come up with is that enough feathers were ruffled in congress that the ATF fears some sort of reprisal should they ramrod this through. DHS has already had their funding threatened over President Obama's executive orders on immigration and perhaps DOJ, of which ATF is part, fears the same thing befalling them if they stir up too much controversy. Likewise, Eric Holder's successor as AG has yet to be confirmed and perhaps DOJ doesn't want this controversy to overshadow that process.

 

[johnelmore]

It looks like the NRA declared victory on their Facebook page. Banning M855 or other such ammo is not politically popular or advantageous for the Democrats who want to recapture the seats they lost. It might have been a great thing if they did ban M855 because than the Democrats would drop some more in the polls securing seats for the NRA friendly Republicans and as I said before the M855 is not a good load anyway for civilians or law enforcement. I wouldnt load M855 either for home self defense or hunting. There are better loads which outclass it so I could do without it.

 

[Aguila Blanca]

At least we might be able to rest easy ,even for a little while, at least. I think their weak points, as exposed already, will lose their battle for them If they try to ban it again.

No, we can't rest easy, not even for a little while.

I consider this faux proposal to be nothing more than a feint, to test out our defenses and see what weaknesses their probe exposes. When (not if) the BATFE comes back, do you really think they'll be using the same flawed arguments they have already exposed? Unfortunately, the professional gun grabbers are smarter than that. They now have over 80,000 comments, so what has been exposed is the arguments OUR SIDE brings to the table. That gives them a lot of valuable information in crafting new regulations intended specifically to overcome our objectives. They now know where our weaknesses lie.

Boy Scout motto: "Be prepared."

 

[Bartholomew Roberts]

Another big concern is that the Perez decision just opened the door for no public notice or comment period if ATF just redrafts this framework to be an "interpretive ruling." I know at least one law blog is speculating that ATF realized they included a fatal flaw in this proposal that would prevent them arguing it is an interpretive ruling.

Since interpretive rulings are almost never overturned, ATF may be trying to frame their proposal that way. If true, then we really need to continue commenting through the 16th as that may be the last chance we get.

 

[steve4102]

I know at least one law blog is speculating that ATF realized they included a fatal flaw in this proposal that would prevent them arguing it is an interpretive ruling.

What would that be?

 

[Armorer-at-Law]

1) M855 wasn't AP ammo by statute to begin with and ATF's "exemption" was a farce. ATF needs to explain how they arrived at that erroneous conclusion and Congress needs to describe to ATF why that conclusion was erroneous.

2) ATF used a great deal of leeway in interpreting phrases that Congress did not define. Congress needs to removes that ability from ATF by either removing the statutory authority or more strictly defining the terms ATF relied on for their failed power grab.

^^^^This ^^^^THIS! Especially number 1!

M855 wasn't AP ammo by statute to begin with and ATF's "exemption" was a farce. We must not miss this point!

The law says it's AP if the projectile or projectile core is "constructed entirely" of X, Y, and/or Z. ATF interprets that as meaning a projectile is AP unless its core is constructed entirely of something other than X, Y, or Z. See the difference?

ATF needs to explain how they arrived at that erroneous conclusion and Congress needs to describe to ATF why that conclusion was erroneous.

We can only speculate as to whether they look at M855 as having two cores, one of which is made entirely of steel. Or whether it is because the core included some steel. Either way is wrong, but they need to explain their "logic."

The 1986 "exemption" was unnecessary and improper in the first place. They may as well have exempted toaster ovens. If they now withdraw the exemption for toaster ovens, that doesn't make them AP ammo as defined by the law. There was no incentive to challenge the ATF "interpretation" in 1986, even though it was obviously wrong, because we had what we wanted: M855 was not banned.

The leeway given to ATF by the law was to give exemptions to ammo that otherwise would have been prohibited by the law, not to decide whether ammo is AP or not.

A particularly bad aspect of the proposed plan was that, because the law doesn't make possession illegal (only manufacture, import or sale*), there wouldn't be some plaid-wearing hunter charged when the "exemption" was withdrawn. It would only directly affect licensed dealers and manufacturers who, if they don't comply, will lose their license (even if not charged with a crime).

*There are a couple of states in which withdrawal of the exemption would have made possession illegal.

 

[carguychris]

M855 wasn't AP ammo by statute to begin with and ATF's "exemption" was a farce.

Pardon my ignorance, but can someone explain to me in 100 words or less () why the exemption was sought in the first place? I was too young to have been paying attention at the time.

Normally, I would use the Googles, but all I get is a proverbial bazillion news stories regarding the recent ATF action.

 

[Bartholomew Roberts]

What would that be?

http://blog.princelaw.com/2015/03/1...n-regarding-ss109m855-ammunition-not-so-fast/

We can only speculate as to whether they look at M855 as having two cores, one of which is made entirely of steel. Or whether it is because the core included some steel. Either way is wrong, but they need to explain their "logic."

According to this 1986 Private Letter Ruling, they state "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."

That would seem to indicate that ATF is adopting the theory that there are multiple cores in the bullet and therefore M855 is AP. However, that interpretation makes the statutory phrase "projectile or projectile core which is constructed entirely..." irrelevant. If every different metal is a separate "core" then the word "entirely" is unnecessary. The basic rules of statutory interpretation assume that the writers didn't include unnecessary language - and the steel portion of M855 is clearly not a "core" under any traditional definition of that word.

 

[johnelmore]

Im not sure why they ban "armor piercing" rounds anyway. Most handgun and rifle rounds will penetrate vehicle and household walls. I dont see anything armored around here. So the point of banning armored piercing rounds is what? Why would anyone choose such rounds anyway as they wear the barrel down faster and the usual rounds are good enough to pierce objects.

 

[alan]

Post 228 included the following:

ATF needs to explain how they arrived at that erroneous conclusion and Congress needs to describe to ATF why that conclusion was erroneous.

___________________________________________________________________

A possible answer to the question might be as follows. MAGIC

As to what is needed from The Congress, as an absolute minimum, Congress needs to do that, and they also need to make certain that the "ATF" never again makes makes such "mistakes".

That having been said, today's Pittsburgh Tribune-Review carried a front page story dealing with the Obama-BATFE axis having folded on their ammunition ban ploy. While it was nice to see, The Good Guys, Our Side, won a skirmish, the war continues, something forgotten at our peril.

By the way, concerning how The Congress might act, as opposed to how it should act, that remains an open question, the answer being something to be determined.

 

[Tom Servo]

A possible answer to the question might be as follows. MAGIC

It makes as much sense as any other explanation.

I checked some load data today, and the penetrator rod averages 9gr. That's roughly 15% of the bullet's weight. That doesn't meet their definition in either respect.

 

[barnbwt]

How about replacing the entirety of the armor-piercing language with a simple, clear ban on all projectiles containing alloyed tungsten, uranium, beryllium, and mercury (why not ), or any portions exceeding a maximum hardness threshold (let's say higher than normalized steel). Simple, clear, accomplishes what the statute has always intended (barring projectiles specifically designed for shearing through hardened or fibrous barriers from manufacture, import, or use in pistols), and leaves little room for expansion without congressional intervention.

It also removes needless ambiguities like "pistol vs. rifle rounds," "sporting purposes nonsense," and the technical definition of projectile components from the ATF's discretion. Also gone are any potential blanket bans of ammunition even tangentially useful for sporting or defense. All that would be affected are an exotic subset of projectiles specifically designed for defeating armor.

I do not favor a ban on this field of technology, since it inhibits development of ultra-high speed projectiles (at extreme pressure and velocity levels, you need a hard projectile to penetrate the air, let alone the target, and still hold together) that could theoretically become 'the norm' one day in the future. But if we are to suffer one, as we apparently elected reps in congress to do 30 years ago, it might as well be clear and impartial in its language and enforcement.

Sadly this set of rules would likely include the 5.7x28 SS190 round with its hardened aluminum core and hardened steel penetrator*; I would argue this is a feature rather than a bug, even as an ardent 5.7 fan and shooter --that bullet was designed to punch soft armor, it does, and includes unique physical design features to do so. The fact the round is not currently classified as designed/intended for armor piercing is a shining example of the LEOPA's illogic and incompetence. As much as it pains me to say so, any improvement on LEOPA would necessarily include it (but not M855, whose penetrator is not particularly hardened)

*Huh, the Wiki page says it's already banned; news to me. It's got a core just like the M855's, but with an aluminum (non-restricted metal) core instead of lead behind the penetrator:

Lol, here's a quote from a post back in '08 (pre Obama);
"if SS109 is exempted, I dont see why SS190 wouldnt be."

TCB

 

[ronl]

Here's the thing I never really understood about the matter, with the whole "protect our officers" talk. Most departments are issued level IIIA soft body armor, which any rifle projectile will generally blow right through. I'd even bet a 20 gr. .17 HMR would penetrate it, but I'm not going to try it out on my soft plates. The point is they're blowing smoke. As far as protecting the police, a standard 55gr. FMJ .223 round will blow right through level IIIA. I know for sure that an SS109 will not penetrate my level III armor, even at 30 ft. This entire matter is simply about taking away our ammo, plain and simple, and has nothing at all to do with police safety. If they want to keep the police safe, then issue them level III plates and let them use them.

 

[Webleymkv]

Originally posted by ronl
Here's the thing I never really understood about the matter, with the whole "protect our officers" talk. Most departments are issued level IIIA soft body armor, which any rifle projectile will generally blow right through. I'd even bet a 20 gr. .17 HMR would penetrate it, but I'm not going to try it out on my soft plates. The point is they're blowing smoke. As far as protecting the police, a standard 55gr. FMJ .223 round will blow right through level IIIA. I know for sure that an SS109 will not penetrate my level III armor, even at 30 ft. This entire matter is simply about taking away our ammo, plain and simple, and has nothing at all to do with police safety. If they want to keep the police safe, then issue them level III plates and let them use them.

The answer is that it was never about "protecting officers". The whole point of the ban was, I think, to get some good PR while affecting as few people as possible. "Armor piercing" ammo, as defined by the law, in actual handgun calibers was never particularly common because A) it's construction makes it expensive and B) it's really not terribly useful for anything besides penetrating soft body armor.

Making a cartridge that will penetrate soft body armor really isn't all that complicated: you simply have to drive a non-expanding bullet to high enough velocity. As you noted, most centerfire rifle cartridges and some handgun cartridge like 7.62x25 Tokarev can do it without using any of the "evil" materials specified by the law, just a plain old lead-core FMJ. The problem is, you can't ban that ammunition without banning the same ammo used by the "hunters and sportsmen" that gun-control advocates seem to think they can use to push their agenda. The whole thing was never anything more than feel-good smoke and mirrors that actually accomplished very little.

 

[Bartholomew Roberts]

Yeah, I've tried to explain the rifle cartridge thing to several so-called "journalists" reporting on this. I've reached the conclusion that:

A) They don't care; or
B) They already understood that and they don't care

 

[johnelmore]

Lets say they legalized all "armor piercing ammo" today. Who would buy it? This type of ammo is not good as expanding rounds at stopping. Most other rounds will zip through the car door and body armor. Its certainly not good for plinking or the range. The AP round will wear out the barrel faster. The AP round was designed for a specific circumstance on the battlefield where troops were traveling in lightly armored vehicles and staged behind reinforced barricades. However, its an awful round for our circumstances and even if widely available no one would buy it. Its a waste of time and money trying to regulate it. I guess it makes for good politics though.

 

[Skans]

Lets say they legalized all "armor piercing ammo" today. Who would buy it?

I would. Lots of people would. Why should our military and police have AP rounds, but not civilians? To me, part of the reason to own guns is to fulfill the intent of the 2nd Amendment. A country's citizens should have the means to overthrow a tyrannical non-democratic government if/when that should ever happen.

 

[Armorer-at-Law]

According to this 1986 Private Letter Ruling, they state "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."

Yes, I have a copy of the letter now and see that. Also note that the letter begins: "This refers to your letter of October 23, 1986, in which you asked about 5.56mm (.223) caliber SS109 and M855 ball ammunition with respect to the recently enacted legislation restricting the manufacture, importation and sale of armor piercing ammunition." There was not a request for an "exemption." just wanting to make sure M855 and SS109 were not banned. ATF took it upon itself to do the "sporting purpose" evaluation and grant an "exemption." Of course, why would the requester (or anyone else) have argued their logic when we got the conclusion we wanted?

That would seem to indicate that ATF is adopting the theory that there are multiple cores in the bullet and therefore M855 is AP. However, that interpretation makes the statutory phrase "projectile or projectile core which is constructed entirely..." irrelevant. If every different metal is a separate "core" then the word "entirely" is unnecessary. The basic rules of statutory interpretation assume that the writers didn't include unnecessary language - and the steel portion of M855 is clearly not a "core" under any traditional definition of that word.

Agreed.