These are my comments. There are many others like them, but these ones are mine. Just thought I'd share!
To Whom It May Concern,
My name is <RmeJu>. I am writing to express my concern over the recently proposed changes to the ATF’s treatment of certain projectiles pursuant to the 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) (“Proposed Framework”).
Although I am a firearm owner, I do not now use, nor do I ever plan to purchase, any ammunition that would specifically be affected by the Proposed Framework (SS109 and M855 cartridges), and thus I will not be directly affected by any of the changes in the Proposed Framework, if implemented.
My comments relate to two main points. First, the proposed framework will not achieve, or even improve, its claimed objective of increasing officer safety, and is therefore overbroad, ineffective, and ultimately unnecessary. Second, the Proposed Framework’s “primarily intended for sporting purposes” analysis fails to consider obvious, objective, and relevant factors for determining what the “likely use” is for the SS109 and M855 cartridges. I respectfully request the ATF reconsider the Proposed Framework in light of my concerns.
OFFICER SAFETY
Like most other law-abiding American citizens, I care deeply for the safety of the police and other law enforcement officers, including members of the ATF, who risk their safety to protect others. I have served in uniform myself, and have indeed been shot at on multiple occasions, so I understand, firsthand and perhaps better than most, the dangers facing those who serve.
Having served with the Army during wartime, including a deployment to Baghdad, Iraq in 2004, I am familiar with, and have worn, military grade body armor. As you may be aware, military grade body armor (“Class IV Armor”) consists, for the most part, of the same protective material used in the “protective vests,” or “soft body armor” (“Class III Armor”)—the only armor with which the Proposed Framework purports to be concerned.*FN1 See Proposed Framework, at 2.
FN1: As you may also be aware, the primary difference between Class IV Armor and Class III armor is the presence of ballistic plates which, when inserted into the armor, provide protection (in the areas of the body actually protected by the plates) from 7.62x39mm ammunition and lesser threats.
As a member of a well-regarded law enforcement agency such as the ATF, presumably you are also aware that Class III armor is generally designed to offer protection from handgun cartridges, and is not designed, intended, or capable of offering protection from centerfire rifle ammunition, including 5.56x45mm ammunition, whether or not it fits the definition of “armor piercing ammunition” as defined by federal statute.
This brings me to the rub of my concern: Class III Armor (which, again, is the only type of armor with which the Proposed Framework purports to be concerned), would not protect the officer whether or not the ammunition is constructed from “armor piercing” materials or more traditional, unrestricted materials. *FN2 Thus, although the Proposed Framework repeatedly cites officer safety as a primary concern (see Proposed Framework at, 1, 2, 7, 8-9, 11, 15), withdrawal of the exemptions for SS109 and M855 ammunition will simply not achieve that objective.
FN2: While Class IV armor is available to civilian law enforcement, it is generally impractical for uniformed officers to wear on a daily basis due to its bulk, expense, and the intimidation it causes ordinary, law-abiding citizens. Thus, it is generally reserved for specialized officers while executing high-risk duties. Even if Class IV Armor is to be considered in the Proposed Framework’s analysis of officer safety, withdrawal of the exemptions for SS109 and M855 cartridges would not improve the safety of officers wearing such armor, because Class IV Armor already offers protection against such ammunition.
Notably absent from the Proposed Framework is any analysis whatsoever of whether, and to what extent, Class III Armor protects the wearer from centerfire rifle ammunition in general, and 5.56x45mm cartridges in particular, that are made from unrestricted materials. After all, if non-armor piercing ammunition of this caliber will defeat Class III armor, this would logically seem to call the officer safety justification for removing the exemptions for SS109 and M855 into question.
I respectfully request the ATF perform this analysis prior to approving the Proposed Framework, and modify the Proposed Framework in the event the ATF concludes that Class III armor does not protect the wearer from 5.56x45mm ammunition made out of unrestricted materials.
PRIMARILY INTENDED FOR SPORTING PURPOSES ANALYSIS
The Proposed Framework asserts that the “primarily intended” for sporting purposes analysis should focus on the ammunition’s objective likely use, rather than the manufacturer’s subjective, intended use. Proposed Framework, at 8-10. I agree.
My concern is that in conducting its objective analysis, the ATF failed to consider obvious, objective factors that, if considered, would in all probability indicate that SS109 and M855 ammunition is, objectively speaking, primarily intended for sporting purposes. Specifically, the ATF fails to consider, or indeed mention, the volume of SS109 and M855 ammunition that is actually marketed for, and actually used in, sporting applications. See Posters ‘N’ Things, Ltd. v. U.S., 511 U.S. 513, 321-22 & n.11 (1994) (concluding that “primarily intended” for a certain use means to the item’s objectively determined “likely use,” specifically, “the likely use of customers generally”) (emphasis added) (also considering how the item is marketed to customers in the objective analysis).
While the Proposed Framework considers, as it must, the non-sporting use of “armor piercing” 5.56x45mm ammunition, including its criminal use, nowhere in the Proposed Framework is there any consideration whatsoever of whether purchasers of SS109 and M855 ammunition are generally likely to use that ammunition for sporting purposes. This omission is at odds with the purposes of the exemption.
Even as the ATF dismisses the ammunition manufacturers’ argument that their intended use, rather than consumers’ likely use, for the ammunition controls the sporting purpose determination (Proposed Framework, at 8), the ATF itself almost completely omits any consideration of how consumers are actually likely use such ammunition. The only “consumers” considered at all were criminals willing to shoot a police officer, a class of consumers that is thankfully not representative of SS109 or M855 consumers in general.
The Proposed Framework does purport to consider how handguns chambered in 5.56x45mm are likely to be used “in the general community” (Proposed Framework, at 11), but 27 CFR 478.148 does not call for a determination of how handguns (or, for that matter, any firearm) will be used, but rather the ammunition. See 27 CFR 478.148 (contemplating sporting purpose exemptions for “ammunition which is primarily intended for sporting purposes”) (emphasis added). While I think it was appropriate for the ATF to consider how SS109 and M855 cartridges are likely to be used in handguns, 27 CFT 478.148 contemplates a broader analysis than this.
An objective analysis of the ammunition’s “likely use” in the general community (which, again, is the ultimate and determinative factor for application of the “sporting purposes” exemption under 27 CFR 478.148), cannot simply ignore the prolific use of SS109 and M855 ammunition in sporting rifles. It is an understatement of no small magnitude to say that any analysis of centerfire rifle ammunition’s likely use in the general community for sporting purposes would be incomplete without considering the “likely use” such ammunition will be put to when used in rifles.
Even if the analysis could be considered complete only by reference to handguns, the ATF’s wholly unsupported assertion that non-single shot handguns are objectively “unlikely to be used primarily for sporting purposes,” is dubious at best. Proposed Framework, at 11. The prolific use of non-single shot handguns in a wide variety of sporting applications, from hunting to competitive target shooting to a wide variety of “practical” shooting sports is so well-documented that it hardly merits citation. Indeed, it is all but certain that (were the ATF to study the matter) it would quickly determine that the number of non-single shot handguns primarily used for sporting purposes is significant, and should have been included in the sporting purpose analysis. That the ATF failed to even mention these sporting uses before summarily concluding, without explanation or support, that non-single shot handguns are “objectively unlikely to be used primarily for sporting purposes” is deeply concerning to a law-abiding gun owner such as myself.
I also note that the Proposed Framework’s apparent assertion that “a handgun’s objective design” controls the sporting purposes analysis is vulnerable to precisely the same criticism that the ATF leveled at the ammunition manufacturers—it is not the handgun’s design that controls, but rather the handgun’s “likely use.” The Proposed Framework not only concedes, but vigorously advances, the proposition that it is the “likely use” that must control the objective analysis. Proposed Framework, at 9-10 & n.5.
27 CFR 478.148 calls for the ATF to determine the ammunition’s primary purpose, not its primary purpose for use in handguns. If the sporting purpose exemption were only intended to determine how the ammunition would likely be used in handguns capable of chambering it, then 27 CFR 478.148 would say that. But it does not say that. Even if such a limited analysis is appropriate, the ATF’s conclusory assumption that non-single shot handguns primarily used for sporting purposes constitutes such a small proportion of handguns overall, that they may be ignored in the sporting purposes analysis, was not justified, and should be reconsidered. I respectfully request that the ATF reconsider the Proposed Framework in light of these concerns.
Thank you for your consideration of my comments.
To Whom It May Concern,
My name is <RmeJu>. I am writing to express my concern over the recently proposed changes to the ATF’s treatment of certain projectiles pursuant to the 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) (“Proposed Framework”).
Although I am a firearm owner, I do not now use, nor do I ever plan to purchase, any ammunition that would specifically be affected by the Proposed Framework (SS109 and M855 cartridges), and thus I will not be directly affected by any of the changes in the Proposed Framework, if implemented.
My comments relate to two main points. First, the proposed framework will not achieve, or even improve, its claimed objective of increasing officer safety, and is therefore overbroad, ineffective, and ultimately unnecessary. Second, the Proposed Framework’s “primarily intended for sporting purposes” analysis fails to consider obvious, objective, and relevant factors for determining what the “likely use” is for the SS109 and M855 cartridges. I respectfully request the ATF reconsider the Proposed Framework in light of my concerns.
OFFICER SAFETY
Like most other law-abiding American citizens, I care deeply for the safety of the police and other law enforcement officers, including members of the ATF, who risk their safety to protect others. I have served in uniform myself, and have indeed been shot at on multiple occasions, so I understand, firsthand and perhaps better than most, the dangers facing those who serve.
Having served with the Army during wartime, including a deployment to Baghdad, Iraq in 2004, I am familiar with, and have worn, military grade body armor. As you may be aware, military grade body armor (“Class IV Armor”) consists, for the most part, of the same protective material used in the “protective vests,” or “soft body armor” (“Class III Armor”)—the only armor with which the Proposed Framework purports to be concerned.*FN1 See Proposed Framework, at 2.
FN1: As you may also be aware, the primary difference between Class IV Armor and Class III armor is the presence of ballistic plates which, when inserted into the armor, provide protection (in the areas of the body actually protected by the plates) from 7.62x39mm ammunition and lesser threats.
As a member of a well-regarded law enforcement agency such as the ATF, presumably you are also aware that Class III armor is generally designed to offer protection from handgun cartridges, and is not designed, intended, or capable of offering protection from centerfire rifle ammunition, including 5.56x45mm ammunition, whether or not it fits the definition of “armor piercing ammunition” as defined by federal statute.
This brings me to the rub of my concern: Class III Armor (which, again, is the only type of armor with which the Proposed Framework purports to be concerned), would not protect the officer whether or not the ammunition is constructed from “armor piercing” materials or more traditional, unrestricted materials. *FN2 Thus, although the Proposed Framework repeatedly cites officer safety as a primary concern (see Proposed Framework at, 1, 2, 7, 8-9, 11, 15), withdrawal of the exemptions for SS109 and M855 ammunition will simply not achieve that objective.
FN2: While Class IV armor is available to civilian law enforcement, it is generally impractical for uniformed officers to wear on a daily basis due to its bulk, expense, and the intimidation it causes ordinary, law-abiding citizens. Thus, it is generally reserved for specialized officers while executing high-risk duties. Even if Class IV Armor is to be considered in the Proposed Framework’s analysis of officer safety, withdrawal of the exemptions for SS109 and M855 cartridges would not improve the safety of officers wearing such armor, because Class IV Armor already offers protection against such ammunition.
Notably absent from the Proposed Framework is any analysis whatsoever of whether, and to what extent, Class III Armor protects the wearer from centerfire rifle ammunition in general, and 5.56x45mm cartridges in particular, that are made from unrestricted materials. After all, if non-armor piercing ammunition of this caliber will defeat Class III armor, this would logically seem to call the officer safety justification for removing the exemptions for SS109 and M855 into question.
I respectfully request the ATF perform this analysis prior to approving the Proposed Framework, and modify the Proposed Framework in the event the ATF concludes that Class III armor does not protect the wearer from 5.56x45mm ammunition made out of unrestricted materials.
PRIMARILY INTENDED FOR SPORTING PURPOSES ANALYSIS
The Proposed Framework asserts that the “primarily intended” for sporting purposes analysis should focus on the ammunition’s objective likely use, rather than the manufacturer’s subjective, intended use. Proposed Framework, at 8-10. I agree.
My concern is that in conducting its objective analysis, the ATF failed to consider obvious, objective factors that, if considered, would in all probability indicate that SS109 and M855 ammunition is, objectively speaking, primarily intended for sporting purposes. Specifically, the ATF fails to consider, or indeed mention, the volume of SS109 and M855 ammunition that is actually marketed for, and actually used in, sporting applications. See Posters ‘N’ Things, Ltd. v. U.S., 511 U.S. 513, 321-22 & n.11 (1994) (concluding that “primarily intended” for a certain use means to the item’s objectively determined “likely use,” specifically, “the likely use of customers generally”) (emphasis added) (also considering how the item is marketed to customers in the objective analysis).
While the Proposed Framework considers, as it must, the non-sporting use of “armor piercing” 5.56x45mm ammunition, including its criminal use, nowhere in the Proposed Framework is there any consideration whatsoever of whether purchasers of SS109 and M855 ammunition are generally likely to use that ammunition for sporting purposes. This omission is at odds with the purposes of the exemption.
Even as the ATF dismisses the ammunition manufacturers’ argument that their intended use, rather than consumers’ likely use, for the ammunition controls the sporting purpose determination (Proposed Framework, at 8), the ATF itself almost completely omits any consideration of how consumers are actually likely use such ammunition. The only “consumers” considered at all were criminals willing to shoot a police officer, a class of consumers that is thankfully not representative of SS109 or M855 consumers in general.
The Proposed Framework does purport to consider how handguns chambered in 5.56x45mm are likely to be used “in the general community” (Proposed Framework, at 11), but 27 CFR 478.148 does not call for a determination of how handguns (or, for that matter, any firearm) will be used, but rather the ammunition. See 27 CFR 478.148 (contemplating sporting purpose exemptions for “ammunition which is primarily intended for sporting purposes”) (emphasis added). While I think it was appropriate for the ATF to consider how SS109 and M855 cartridges are likely to be used in handguns, 27 CFT 478.148 contemplates a broader analysis than this.
An objective analysis of the ammunition’s “likely use” in the general community (which, again, is the ultimate and determinative factor for application of the “sporting purposes” exemption under 27 CFR 478.148), cannot simply ignore the prolific use of SS109 and M855 ammunition in sporting rifles. It is an understatement of no small magnitude to say that any analysis of centerfire rifle ammunition’s likely use in the general community for sporting purposes would be incomplete without considering the “likely use” such ammunition will be put to when used in rifles.
Even if the analysis could be considered complete only by reference to handguns, the ATF’s wholly unsupported assertion that non-single shot handguns are objectively “unlikely to be used primarily for sporting purposes,” is dubious at best. Proposed Framework, at 11. The prolific use of non-single shot handguns in a wide variety of sporting applications, from hunting to competitive target shooting to a wide variety of “practical” shooting sports is so well-documented that it hardly merits citation. Indeed, it is all but certain that (were the ATF to study the matter) it would quickly determine that the number of non-single shot handguns primarily used for sporting purposes is significant, and should have been included in the sporting purpose analysis. That the ATF failed to even mention these sporting uses before summarily concluding, without explanation or support, that non-single shot handguns are “objectively unlikely to be used primarily for sporting purposes” is deeply concerning to a law-abiding gun owner such as myself.
I also note that the Proposed Framework’s apparent assertion that “a handgun’s objective design” controls the sporting purposes analysis is vulnerable to precisely the same criticism that the ATF leveled at the ammunition manufacturers—it is not the handgun’s design that controls, but rather the handgun’s “likely use.” The Proposed Framework not only concedes, but vigorously advances, the proposition that it is the “likely use” that must control the objective analysis. Proposed Framework, at 9-10 & n.5.
27 CFR 478.148 calls for the ATF to determine the ammunition’s primary purpose, not its primary purpose for use in handguns. If the sporting purpose exemption were only intended to determine how the ammunition would likely be used in handguns capable of chambering it, then 27 CFR 478.148 would say that. But it does not say that. Even if such a limited analysis is appropriate, the ATF’s conclusory assumption that non-single shot handguns primarily used for sporting purposes constitutes such a small proportion of handguns overall, that they may be ignored in the sporting purposes analysis, was not justified, and should be reconsidered. I respectfully request that the ATF reconsider the Proposed Framework in light of these concerns.
Thank you for your consideration of my comments.
