by David Codrea has a habit of getting the answers to questions that the Justice Department and BATFE would rather not answer. Yesterday he got an answer to why the proposed regulation change regarding removing the exemption of SS109/M855 62 grain 5.56×45 ammunition from the armor piercing banned list was never published in the Federal Register.
BATFE says they are exempt.
WTF?
Per Denise Brown of ATF Enforcement Programs and Services in this afternoon’s telephone conversation, this will “not actually be a [regulatory] change, more of a policy along those lines.” Brown said the framework document is a notice only, and will therefore not be published in the Federal Register, characterizing the document’s intent as “information gathering” in order to collect technical information, which could affect the Bureau’s final determination.
Brown confirmed ATF’s decision not to publish in the Federal Register is based on the exemption provision in the APA. That states “Except when notice or hearing is required by statute, this subsection does not apply … to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” Also exempted is “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”
Could the Eric Holder’s Justice Department and B. Todd Jones’ BATFE say “F-you” any louder?
Read the whole column here. I think it gives a critical perspective on their proposed change and will help in formulating your response that is due by March 16th.
I agree with Michael Bane that this is a well thought out and orchestrated assault on gun owners and the Second Amendment. Along with commenting to BATFE, we need to be sending copies of these comments to our Senators and Representatives. I’d also send a copy of David Codrea’s column and ask if the BATFE is not subverting the will of Congress. I’d do the latter in a second letter. The more times we can get this before their radar screen, the better.
While I agree that M855 should not be classified as armor piercing because its core is not “entirely” composed of the restricted materials, I am concerned that everyone is focusing on M855 and missing the point of the ATF proposal. The title of the document is:
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)
So while it may be useful to comment on M855 and U.S.C. 921(a)(17)(B)(i) we had better also comment on the problems with the proposal’s definition of primarily intended for sporting purposes. On page 10 of the proposal they make the statement:
…”the Court explained that an objective analysis of whether an item is “primarily intended” for a specified use must focus on the “likely use” of that item in the general community, not the subjective intent of any user or discrete group.”
Immediately following on the next page they say:
“Determining the “likely use” in the general community of any type of ammunition necessarily involves examination of the cartridges in which the armor piercing projectiles can be loaded, and the handguns that are readily available to accept those cartridges. More specifically, the characteristics of the handgun or handguns in which a specific armor piercing projectile may be used will generally determine that projectile’s “likely use” in the general community.”
They are making a major logic error here and it will come back to bite us. The problem is that they are focusing on the likely use of the ammo only in handguns even through U.S.C. 921(a)(17)(C) does not mention the use of the ammo in handguns only. If you include the likely use of the ammo in both rifles and pistols the likely use may be entirely different. If you consider the use of the M855 in all AR pistols and rifles then I would contend that the most likely use of that ammo is for target shooting because that is what most people in the “general community” do with their AR rifles which vastly outnumber AR pistols. By focusing only on the handgun use are they drastically increasing the likelihood that they would be able to ban a particular type of ammo? Perhaps that this their intent. If they are successful in defining the likely use of ammo this way then they could say that it doesn't matter if a cartridge was originally designed for a rifle and it doesn't matter that it is mostly used in rifles. Once there is a pistol made to shoot that cartridge they can say that it's most likely use is not sporting because pistols are mostly used for self defense. This is a terrible precedent to set.
I agree. This is yet another attempt by the ATF and others in the government to subvert the intent of the 2nd Amendment.
Anonymous has a very good point. On top of that, their proposed framework only allows for “sporting purposes” exemptions if there is only a single shot, break open handgun available in that caliber. Public comments need to address the core of the proposed change and effective public comments will either provide a less obtrusive alternative or significant reasons to not implement the proposed changes.
Most of the advocacy for public comments has made the core focus of their entire objection the “availability of ammunition”. while that’s a concern, there’s other projectiles out there just as good and effective. Prices will likely spike for a while but will return to normal, but the evaluation framework for determining if ammunition is suitable for sporting purposes is way out there and will come back to haunt us.
They are slowly whittling our rights, every swipe of the blade (unfounded laws) we lose more and more, you can only whittle so far before you break through the stick and cut yourself.
Eric Holder belongs behind bars for this and numerous other illegal acts against this country.
Ignore any new gun laws and keep buying and owning firearms and ammunition anyway, the 2nd Amendment says "Shall not be Infringed" this means that any and all gun laws are illegal, because they violate the 2nd Amendment.
So what needs to happen, is we need to start meeting up at Bars, Clubs, Golf Courses, you name it, and forming up Militias and drilling as them, until the time comes when these Nazis that have overthrown our Government, wield weapons against the citizens of the United States.
WE the ATF need not follow the law ( APA ) WE need not notify you the serfs when WE change the rules midstream. WE need not take comment from the serfs but WE shall permit it. WE the ATF are omnipotent.
ATF spokeswoman “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” WE will do as WE please.
you got it
very good point.