In 1986 Congress amended the Gun Control Act of 1968 (“GCA”) and imposed significant controls over “armor piercing ammunition.” The restrictions (1) prohibit the manufacture and importation of armor piercing ammunition; (2) authorize the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) to revoke the license of any licensed dealer who willfully transfers armor piercing ammunition; (3) impose marking requirements on such ammunition; and (4) require licensees to keep records of disposition of armor piercing ammunition. This bulletin will address the statutory definition and provide an overview of the restrictions.
- Definition of “Armor Piercing Ammunition”
The GCA definition of armor piercing ammunition is composition-based and includes the following two tests:
- A projectile or projectile core which may be used in a handgun and which is constructed entirely from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium; and
- 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.
Both tests require that ammunition be capable of use in a handgun. What if the handgun that chambers the ammunition is a prototype produced in limited quantities? If the handgun is commercially available, ATF is likely to classify the ammunition as armor piercing despite limited production and availability.
Turning to the specifics of the two statutory tests, it is apparent the first test is easier to apply than the second. If the projectile or projectile core is made of one of the specified metals and is capable of use in a handgun, it is armor piercing. The second test is more complex, as it requires consideration of whether the projectile has a jacket weighing more than 25 percent of the total weight of the projectile. Such a determination requires weighing the projectile, then weighing the jacket after melting away or otherwise removing the projectile core. This type of testing is difficult and should be conducted by a qualified laboratory or ATF’s Firearms and Ammunition Technology Division.
- Exclusions from the Definition
The statutory definition specifically excludes from the category of “armor piercing ammunition” the following:
- Shotgun shot required by federal or state environmental or game regulations for hunting purposes;
- Frangible projectiles designed for target shooting;
- Projectiles which the Attorney General finds are primarily intended to be used for sporting purposes; or
- Any other projectile or projectile core which the Attorney General finds is intended to be used for industrial purposes, including a charge used in an oil and gas well perforating device.
ATF regulations require persons who wish to obtain an exemption for ammunition that fits within the third and fourth categories listed above to submit a written request to the Director. In 1986 ATF exempted from the statute 5.56 mm (.223) SS109 and M855 “green tip” ammunition containing a steel core. In 1992 ATF exempted .30-06 M2AP cartridges. Both of these exemptions were granted under the “sporting purposes” test above.
Beginning in 2011, ATF received over 30 exemption requests for armor piercing ammunition on the basis that they were primarily intended to be used for sporting purposes. In February, 2015, ATF published a “Framework” (available at https://www.atf.gov/resource-center/docs-0/download) setting forth proposed criteria for acting on the exemption requests the agency received. The agency received over 80,000 comments on the Framework and withdrew its proposal. To the best of this writer’s knowledge, the agency has not acted on any of the exemption requests to date.
- Statutory Exemptions
The GCA includes the following exemptions from the prohibitions on importation and manufacture of armor piercing ammunition:
- Manufacture of ammunition for federal, state, or local government agencies;
- Manufacture of ammunition for exportation; and
- Manufacture or importation of ammunition for purposes of testing or experimentation authorized by ATF.
Manufacturers who make and distribute ammunition to government agencies should document their eligibility for this exemption through government contracts and purchase orders.
Manufacturers and importers who wish to make or import armor piercing ammunition for purposes of testing or experimentation must obtain approval from ATF pursuant to 27 C.F.R. § 478.149.
- Record Keeping
Licensed manufacturers, importers, dealers, and collectors are required to create and retain records of their disposition of armor piercing ammunition. Failure to maintain disposition records gives ATF investigators authority to issue a Report of Violations which, if willful, would provide a basis for license revocation.
Licensed manufacturers and licensed importers of armor piercing ammunition must identify it by means of painting, staining or dying the exterior of the projectile with an opaque black coloring. The coloring must completely cover the point of the projectile and at least 50 percent of the portion visible when the projectile is loaded into the cartridge case. Packages in which armor piercing ammunition is contained must also be conspicuously labeled with the words “ARMOR PIERCING” in block letters at least ¼ inch in height. The package must also be marked in block lettering at least 1/8 inch in height the words “FOR GOVERNMENTAL ENTITIES OR EXPORTATION ONLY.”
Industry members who manufacture and import ammunition should ensure they are aware whether products they make or import fit within the statutory definition of armor piercing ammunition. This is a continuing obligation, as rounds originally designed and marketed as rifle ammunition may become regulated as armor piercing if a handgun that will chamber the ammunition is commercially available. Dealers in ammunition should obtain information from manufacturers about all products they sell to ensure they do not inadvertently sell armor piercing ammunition in violation of law. Industry members with questions about classification of a particular product should contact ATF’s Firearms and Ammunition Technology Division at firstname.lastname@example.org or (304)616-4300.
This bulletin is for informational purposes only and is not intended to be construed or used as legal advice. Receipt of this bulletin does not establish an attorney-client relationship.
Please contact me with questions about this bulletin at email@example.com or (301)358-3553.