SADJ 7#3

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.
SADEFENSEJOURNAL.COM 17