Small Arms Ammunition Definition Review

1. Small Arms Ammunition Definition Review Achieving the right goals with the right resources

2. Today’s Agenda How did we get here? – Internal ATF initiative without community participation versus active participation Introduction of participants – Who we are and why we are here today Current definitions in use - Conflicting standards used by ATF, military, NATO, others Review of EPS work product Industry Working Group – Executive Summary Industry Working Group – Proposals and recommendations November 19, 2010

3. Defining Small Arms Ammunition ATF has sought to define Small Arms Ammunition in order to serve the public interest and insure the safety of the general public. This definition is contrary to industry opinion and will be done simply, by way of an opinion letter. There are a huge number of law-abiding sporting enthusiasts who enjoy utilizing larger calibers that absolutely will be negatively impacted by newly imposed restrictions, licensing and regulation. Without industry input or review, ATF’s new interpretation will significantly increase administrative overhead, dramatically expand the number of ATF regulated licensees and impose the costs of acquiring explosives magazines on the new licensees, burden an already under-funded staff at the ATF Federal Explosives Licensing Center, and fail to achieve both stated goals.

4. How did we get here? QUICK FACTS, Part 2 The March, 2005 report of the Office of Inspector General determined that the "SEA did not change the explosives types subject to the ATF's licensing authority, as defined in 18 U.S.C. § 841, and it did not increase the number of explosives under the ATF's control.“ Nevertheless, ATF chose to have EPS draft a new definition of small arms ammunition for the express purpose of creating entirely new classes of explosives requiring regulation. ATF appeared to solicit industry input, then drafted the document without the input, then blamed industry for not providing information. QUICK FACTS Federal law and its implementation by ATF has never specifically defined “small arms ammunition”. The term is often referred to in various references such as 27 CFR 55.11 and Section 841. However, the term is never given a precise or defined meaning. ATF has referred to vague “generally accepted” definitions in individual correspondence, but has never offered an official proposal subject to mandatory review and comment. Actions and proposals of the type sought by EPS rightly fall under the “comment and review” process as proscribed by federal law.

5. EPS Proposal Today’s review will constitute the first official viewing of the proposal by industry. We believe that the proposal seeks to include any and every type of ammunition with a caliber of greater than .50 as an explosive device, requiring licensing, regulation and oversight. Additionally, such definition will certainly open a Pandora’s Box with regard to defining those weapons which utilize such newly defined explosive devices. 27 CFR Part 555.11 defines terms used in the regulations. One of the terms defined is “ammunition.” The regulation defines “Ammunition” as “Small arms ammunition or cartridge cases, primers, bullets, or smokeless propellants designed for use in small arms, including percussion caps, and 3/32 inch and other external burning pyrotechnic hobby fuses.” The Federal explosive law commonly referred to as the Safe Explosives Act, at 18 U.S.C § 845(a)(4), exempts “small arms ammunition and components thereof” from the provisions of the law, except for criminal acts and penalties. Small arms ammunition is similarly exempted under the explosives regulations at 27 CFR 555.141(a)(4). This means that fixed ammunition and the components listed above are exempt from regulation as explosives. Although these cited provisions go back to the enactment of the first Federal explosives law, Title XI of the Organized Crime Control Act of 1970, the key term in the exemption, “small arms ammunition,” has never been further defined. Because there have been discussions with ATF personnel in recent years about the extent of coverage of the Safe Explosives Act and the uncertainty surrounding the term “small arms ammunition,” it is necessary to propose as a “best practices” definition of the term for inclusion in ATF regulations at 27 CFR 555.11.

6. Unintended Consequences Ammunition Collectors The collection of ammunition has grown exponentially in recent years. Individual collectors may possess one or a few large caliber rounds of ammunition as part of their collection. Prior opinion has held that as long as the ammunition did not fit the definition of a destructive device having more that a quarter once of explosive, it was permissible to possess. If the “new” definition is applied, these collectors will also become regulated by the Safe Explosives Act. These collectors will now have the same licensing and purchasing opportunities as the previously mentioned hunters. Over .50 caliber? There are many rifles that have a bore diameter larger than .50 caliber that ATF/FTB has removed from the definition of “Destructive Device”. Ammunition for these rifles would now be subject to the Safe Explosives Act. A hunter could no longer carry this ammunition on an aircraft as per TSA regulations. This same hunter would now have to comply with DOT regulations to transport any quantity of ammunition, including a just a few rounds for local hunting. This same hunter would have to apply for and receive an Explosives License just to possess this ammunition. This same hunter would now be eligible to purchase all manner of explosives.

7. Unintended Consequences Burdens caused by Opinion The manufacturing opinion letter was based upon a 1974 letter that classified bluing as manufacturing. This letter was not shared with any member of the firearms industry until a 2009 ATF “posting”. ATF then began enforcing the implementation of Department of State manufacturing licensing requirements. This burden forced the closure of many small business enterprises. This same scenario has resulted in a flood of “secondary marking” variance requests to comply with “new” manufacturing status. FTB and EPS have been overwhelmed with this additional administrative burden. New Burdens on ATF It is believed that the vast majority of collectors will obtain proper licensing so that they can legally maintain and expand their collections. It is believed that many hunters will do the same. Who will be reviewing these license applications? Who will be responsible for conducting all of the mandated inspections of these licensees? Who will be responsible for all of the subsequent annual inspections of these licensees?

8. Executive Summary The ATF's mission has always been to insure the safety of the public with regard to firearms and associated ammunition.  Given that this arena is ever-changing, the mission is both evolving and critical.  Our proposal seeks to assist ATF in formulating an approach to regulating ammunition that removes the arbitrary nature of "single attribute" regulations such as caliber restrictions and employ an approach that encompasses a more realistic set of measurements.  Clearly, a 40mm grenade launcher training round (powered by a .38 blank) is just as safe as the millions upon millions of .38 Special rounds that have been shipped, stored and used quite safely in the United States for over a century.  Yet under proposed regulation, ownership of the "chalk" round would require licensing, secure storage and mandatory inspection solely as the result of an arbitrary size restriction.  With a limited amount of resources available to be deployed against the administrative needs of such a scheme, resources that would necessarily be removed from other current functions, it is in the best interests of ATF to administer the law in such a way that public safety is maintained without the inefficient addition of bureaucracy that ultimately serves to undermine this safety.

9. Key Points to Consider Any definition of “small arms ammunition” drafted to exclude such ammunition from regulation under the Safe Explosives Act should include all of the following items: All cartridges or shot shells (including blanks) for rifles, shotguns or handguns (as defined in 18 U.S.C. § 921) other than destructive devices, as long as they use inert projectiles (including tracers) Cartridges or shells (including blanks) for destructive devices or antique firearms (e.g., black powder cannons), as long as they use inert projectiles (including tracers) or projectiles designed for target practice containing less than 1/4 ounce of explosive (e.g., 40mm practice grenades) Cartridges for powder actuated industrial devices Components for all cartridges and shells described above, including: Smokeless powder and black powder substitutes Black powder used in fixed cartridges, or bulk black powder as excluded from certain federal regulation under 18 U.S.C. § 845(a) Primers A definition should not be based upon unenforceable or subjective criteria with too many possible variables, such as: Caliber Number of rounds possessed The possessor’s intent Use or suitability for “sporting” or “cultural” purposes