In a recent proposal — “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 ATF has announced that it intends to remove a long-standing legal exemption for commonplace AR-15 ammunition, referred to as M855 and SS109 rifle ammunition, which could result in the complete cessation of manufacturing, importing, and sale of these cartridges to lawful gun owners in the United States. The resulting ban of M855/SS109 ammo would be the consequence of the ATF’s new proposed framework for determining whether or not various types of ammunition will fall under the federal “sporting exemption.” This exemption allows for the possession and use of certain ammunition that would otherwise be prohibited as “armor piercing.”
The Gun Control Act of 1968 implemented federal statutory prohibitions on armor-piercing ammunition, as found in 18 U.S.C. § 922(a)(7)-(8). Armor-piercing ammunition is defined as: “ 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  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.” 18 U.S.C. § 921(a)(17)(B).
Manufacturers and importers are prohibited from manufacturing, importing, selling, or delivering armor-piercing ammunition, unless the ammunition is meant for governmental use, exportation, or testing/experimentation. Thus, lawful, private gun owners generally may not purchase armor-piercing ammunition under federal law. Additionally, state laws often contain provisions prohibiting the possession of armor-piercing ammunition as well. For example, Texas Penal Code § 46.05(a)(6) makes it an offense to intentionally or knowingly possesses, manufacture, transport, repair, or sell armor-piercing ammunition.
However, an exemption from these restrictions is available for ammunition that is “primarily intended for sporting purposes.” The ATF has traditionally interpreted sporting purposes to include “the... sports of hunting, competitive target shooting, and skeet and trap shooting.” In order to determine whether certain types of ammunition are primarily intended for sporting purposes, the ATF has proposed a two-part framework that they believe will meet their primary goals of protecting law enforcement officers and preventing an undue burden on the firearms industry and gun owners:
Category I provides an exemption for .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.” (ATF Framework, pg. 12).
Category II deals with 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.” (ATF Framework, pg. 12).
If this proposed framework is implemented, the M855/SS109 cartridges, which were given the “sporting purpose” exemption in 1986, will no longer be exempt and will be considered armor-piercing ammunition under 18 U.S.C. § 921(a)(17)(B). While M855/SS109 ammunition is technically considered rifle ammunition and is most commonly used in AR-style rifles, it will be considered armor piercing ammunition because it may be used in a handgun, namely AR-style handguns. The ATF states “it is not possible to conclude that revolvers and semi-automatic handguns as a class are ‘primarily intended’ for use in sporting purposes.” Coupled with the fact that the ATF wants to only exempt a non-.22 caliber projectile if it is only intended to be used by a “single shot handgun,” the ATF clearly intends to drastically curtail the manufacture, import and sale of this ammunition that has been used legally for almost 30 years. This decision could impact virtually every rifle model that has a companion pistol version.
Fortunately, this framework has not been set into place yet, and the ATF is accepting comments from the public until March 16th. We encourage our members to contact the ATF and let them know what they think about this proposed ban on M855/SS109 ammunition. If you’d like to submit a comment, you can do so by: (1) sending an e-mail to APAComments@atf.gov; (2) sending a fax to (202) 648-9741; or by sending mail to 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.
Make sure to include your full name, address, and a reference to the title of the ATF’s proposal containing the framework — “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).” Note: this is not a popularity contest. A single, well-worded comment can be more valuable than a thousand general complaints about gun control. The deadline for all comments is March 16, so don’t hesitate to make your voice heard!