Industry News: V18N5

By Robert M. Hausman

ATF Bans 7N6 5.45x39 Ammunition From Importation

On March 5, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) received a request from the U.S. Customs and Border Protection agency (CBP) to conduct a test, examination and classification of Russian-made 7N6 5.45x39 ammunition for purposes of determining whether it is considered “armor piercing ammunition” as defined by the Gun Control Act (GCA), as amended. Since 1986, the GCA has prohibited the importation of armor piercing ammunition unless it is destined for government use or testing. The imported ammunition about which CBP was inquiring was not destined for either excepted purpose.

The Gun Control Act of 1968, as amended, defines the term “armor piercing ammunition” as:

“(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.”

When ATF tested the 7N6 samples provided by CBP, they were found to contain a steel core. ATF’s analysis also concluded that the ammunition could be used in a commercially available handgun, the Fabryka Bronie Radom, Model Onyks 89S, 5.45x39 caliber semiautomatic pistol, which was approved for importation into the United States in November 2011.

Accordingly, ATF found the ammunition is “armor piercing” under the section 921(a)(17)(B)(i) and is therefore not importable. ATF’s determination applies only to the Russian-made 7N6 ammunition analyzed, not to all 5.45x39 ammunition. Ammunition of that caliber using projectiles without a steel core would have to be independently examined to determine their importability.

The National Rifle Association advised that notably absent from the ATF-issued advisory is any mention of the “sporting purposes” exemption provided for in the federal armor piercing ammunition law. The law gives the Attorney General discretion to exempt certain projectiles from being considered armor piercing ammunition. This exemption already applies to 5.56x45 M855 and .30-06 M2 AP ammunition.

NRA has repeatedly encouraged ATF to rule that projectiles originally made for rifles and any projectile not designed and intended to penetrate armor when fired from a handgun are exempt from the federal armor piercing ammunition law. Just last year, NRA sent comments to ATF that explained how Congress intended for the armor piercing ammunition law to cover a very limited class of projectiles and provided ATF with guidance on granting “sporting purposes” exemptions to projectiles.

NRA is also working with members of Congress to get more answers from ATF on how the agency determines if a projectile is “armor piercing ammunition.” The efforts include inquiries as to whether ATF considers 7N6 ammunition, which has been widely used as an affordable alternative for target shooting and rifle training, a candidate for a “sporting purposes” exemption.

Reps. Bob Goodlatte (R-Va.), James Sensenbrenner (R-Wis.), and Howard Coble (R-N.C.) have already sent a letter to BATFE Director B. Todd Jones encouraging him to act on other outstanding petitions for “sporting purposes” exemptions.

The congressman’s letter notes that, despite the clear intent of the architects of the law, to ban only bullets capable of penetrating body armor and designed to be fired from a handgun, ammunition clearly designed and intended for use in rifles has been scrutinized as potentially being “armor piercing” under the statute. The letter further notes that manufacturers have been looking at new and innovative materials to replace traditional lead components in markets such as California, where the use of traditional ammunition for hunting has been banned. Some of these alternative materials cause the ammunition to fail the composition test in 18 USC 921(a)(17)(b)(i) and the products are further subjected to a ruling on their intended use by the ATF.

Some manufacturers of ammunition designed for use in rifles have stopped production as a result of guidance from ATF that their products may be considered armor-piercing. The congressmen note that at least 19 companies that produce ammunition for hunting or other shooting sports have submitted petitions to ATF, requesting the agency exempt their products as “primarily intended for a sporting purpose” as required by federal law.

ATF Allegedly Withholding Audio Tapes

The congressmen also wrote about several meetings that were held last year at ATF headquarters to gather input on this issue from manufacturers, groups representing hunters and sportsmen, and groups opposed to alternative ammunition being brought to the market. The audio of all of these meetings was recorded and attendees were told multiple times that the recordings would be made available to them.

When the requests for the tapes were made, the Congressmen write, ATF, however, did not respond. As a result, some organizations filed Freedom of Information Act requests to obtain the recordings, which were also ignored. This lack of transparency is extremely troubling especially considering the fact that attendees were told in no uncertain terms that the meetings were being recorded and the tapes would be provided, the congressmen wrote.

The congressmen close by noting that the unintended consequences of misinterpreting the statute are steep, particularly considering the fortunate lack of instances of officers being shot with rifle-hunting ammunition from handguns. ATF was also encouraged to issue a ruling consistent with congressional intent.

Dems Step Up Effort for Import Semi-Auto Gun Ban

U.S. Sen. Dianne Feinstein (D-Calif.), sponsor of the federal gun ban of 1994-2004, is asking President Barack Obama to direct the BATFE to reinterpret a provision of the Gun Control Act of 1968 to prohibit the importation of various semiautomatic firearms and their parts.

In a letter to Obama, the text of which was included in an article published by the Daily Caller, Feinstein said that, “at a minimum,” ATF should: prohibit importation of all semiautomatic rifles that can accept, or be readily converted to accept, a large capacity ammunition magazine of more than 10 rounds... prohibit semiautomatic rifles with fixed magazines with a capacity of more than 10 rounds, prohibit the importation of the frame or receiver of any prohibited rifle… prohibit the practice of importing assault rifles in parts… prohibit the use of a “thumbhole” stock... and prohibit the importation of assault pistols.

This request is similar to the type of failed legislation Feinstein introduced in Congress last year (which would have imposed the biggest gun ban in American history), only this time she’s trying to achieve some of her ends through soliciting the president’s use of executive authority over firearm imports.

Recently joining Feinstein in the fray were 80-plus U.S. House members who wrote their own semi-auto firearms import ban proposal letter to President Obama. Initiated by Reps. John Conyers (D-Mich.) and Eliot Engel (D-N.Y.), the letter urged Obama to compel the Bureau of Alcohol, Tobacco, Firearms and Explosives to expand its ban on the importation of semiautomatic firearms.

Obama Total Ivory Ban Coming Into Effect

As part of the Obama Administration’s “National Strategy to Combat Wildlife Trafficking,” Secretary of the Interior Sally Jewell announced that the U.S. Fish and Wildlife Service will implement a U.S. ban on commercial trade of elephant ivory.

The ban will impose new restrictions on the import, export, and commercial sale of elephant ivory within the United States, with some limited exceptions. The limited exceptions include a narrow class of antiques that are exempt from regulation under the Endangered Species Act; and items imported for commercial purposes before international commercial trade in these species was prohibited under the Convention on International Trade in Endangered Species of Wild Fauna and Flora. Anyone proposing to sell elephant ivory or rhino horn would be responsible to document that they are exempt, in effect, creating a total ban on the sale of ivory. The ban will:

• Prohibit Commercial Import of African Elephant Ivory
• Prohibit Commercial Export of Elephant Ivory
• Significantly Restrict Domestic Resale of Elephant Ivory – sales across state lines are prohibited, except for bona fide antiques, and will prohibit sales within a state unless the seller can demonstrate an item was lawfully imported prior to 1990 for African elephants and 1975 for Asian elephants, or under an exemption document.
• Clarify the Definition of “Antique.” To qualify as an antique, an item must be more than 100 years old and meet other requirements under the Endangered Species Act. The onus will fall on the seller to demonstrate that an item meets these criteria.

The United States Fish and Wildlife Service plans to have the new regulations in place in June. Those looking to acquire ivory from past legal stockpiles to restore antiques, make pistol grips, or otherwise refurbish items will no longer be able to do so.

An unusual assortment of trade groups opposes the regulations, including the National Association of Music Makers, the Art and Antiques Dealers League of America and the National Rifle Association. The critics say the rules are confusing, unfair and should be rewritten to account for ivory that came into the country long ago. For example, to make an interstate sale an owner would have to prove the ivory entered the country through one of 13 American ports authorized to sanction ivory goods: A near impossible requirement. Some ability to sell ivory within a state will remain. But most owners will now have to document that the item has been in the United States for at least 100 years – again impossible.

The Fish & Wildlife Service has said it intends to end domestic demand instead of helping African countries end elephant poaching.

Excise Tax Liabilities Up 22%

The latest Firearms and Ammunition Excise Tax Collection report released by the Department of the Treasury indicates that firearm and ammunition manufacturers reported tax liabilities of $213.5 million in the 4th calendar quarter of 2013; up 22% over the same time period reported in 2012.

Additionally, the 2013 annual FAET collections (January 1 – December 31) totaled $863,696,528 making it the highest year on record to date, surpassing the previous record 2012 FAET of $643,915,884 by 34.1%.

NICS Checks Second Highest April Figure

The April 2014 NSSF-adjusted National Instant Criminal Background Check System (NICS) figure of 988,726 is the second highest April on record for the system, even with a decrease of 16.6% compared to the April 2013 NSSF-adjusted NICS figure of 1,185,231.

For comparison, the unadjusted April 2014 NICS figure of 1,733,651 reflects a 1.8% increase from the unadjusted NICS figure 1,702,455 in April 2013.

New Form for Requesting Marking Variances

ATF announces the availability of a new form that aids licensed manufacturers and importers who apply for marking variances.

The new ATF Form 3311.4 satisfies the requirements of a marking variance letter application. When properly completed, this form is said to reduce processing time as it specifically requests information required to process a marking variance, thus eliminating delays caused when a request omits needed information.

The form is available on-line at www.atf.gov and is fillable on-line. The ATF Form 3311.4 can be submitted electronically (preferred method), and accepts an electronic signature when available. Otherwise, the form should be printed, signed by both parties, scanned and forwarded to: marking_variances@atf.gov or Faxed to (202) 648-9601. Submissions should be made about 90-days prior to the intended manufacture. The ATF Form 3311.4 is available at: www.atf.gov/content/library/firearms-forms.

Over 30-Round Mags Banned From Export

The National Shooting Sports Foundation reports that the U.S. State Department has made a “policy decision” to limit the export of ammunition magazines of more than 30 rounds capacity solely to government, law enforcement and military end users.

The policy has yet to be posted to the Directorate of Defense Trade Controls (DDTC) website. An update on this policy development will be provided as more information becomes available.

The author publishes two of the small arms industry’s most widely read trade newsletters. The International Firearms Trade covers the world firearms scene, and The New Firearms Business covers the domestic market. He may be reached at: FirearmsB@aol.com.

This article first appeared in Small Arms Review V18N5 (October 2014) and was posted online on July 18, 2014

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