Possible ATF change that will cause problems for collectors


The way these guys are reading the letter, the possession of cartridges is only legal if they are of “sporting” calibers, 50cal or less, even if the projectile is inert.

Traditionally, ATF determination letters ONLY apply only to the person who wrote it, or only to the specific item in question, in this case that 40mm IR flare. The disturbing part is somewhere in those threads, someone reported that the ATF agent was confiscating chalk rounds under the same authority.

Again, this is a two-part overreaction on a BATFE issue by the AR15 forum crowd (or any gun forum crowd) - it’s as if some of them live to probe the BATFE with letters like this. On the one hand, you have an individual at the Technology Branch making a determination, and putting in on file so that it can be referenced only if the issue arises in such a way that somebody in law enforcement (probably only the BATFE, or FBI) bothers to look it up with regards to a potential violation that is made aware to them, or that they notice (they probably never would). One thing odd about this is that to be able to use a live 40mm flare, one would seemingly need to posses a proper 40mm launcher which is a destructive device anyway, and such a person would posses the permit needed already.

The other issue is the interpretation that possessing munitions over .50cal which are not for sporting purposes is illegal somehow, and this is a gray area. The only new-production live munitions over .50cal that I usually see available to the public are aluminum tip (ball) 20mm, or rarely 25mm (which again only goes to somebody possessing a D.D. already for something like an Anzio 20mm rifle), or the 37mm or 26.5mm launcher rds, which have always been rated as signal devices in line with Coast Guard regs. Those would be the flares, skyburst, and smoke loads. There are of course .55 Boys, or 14.5 rds, but these are old collector items which somebody might have a few of in a drawer, and no way of shooting them.

And then, to be “cartridges” or “ammunition” it needs to be a live loaded munition, and although the agent refers to a regulation that would include “cases”, “bullets”, “primers”, etc… that interpretation has only ever been applied to new manufacture, or import / export. They have never bothered with making trouble for collectors who have old vintage cases or projectiles as long as everything is inert (less than 1/4 oz explosives).

The “explosives” permit that the agent references might just be having either an FFL 10 / 11 (D.D.) or something akin to a fireworks permit in terms of the power of those flares.

The explosives permit would be an FEL, Federal Explosive License atf.gov/explosives/apply-license

Here’s the letter: i887.photobucket.com/albums/ac74 … g~original
Part 2 of letter: i887.photobucket.com/albums/ac74 … g~original

Here is 27 CFR Part 555 referenced above ecfr.gov/cgi-bin/text-idx?SI … 5&rgn=div5 I’m still working through it.

This ruling is based on a BATFE publication from June 2013. Why has it not been enforced? This question (the IR flare legality) has been asked before, but it was addressed to the Technical branch. They ruled it as legal. What changed? This time it was addressed to the Explosives branch. They pointed to this document and said they were illegal. I do not know if they are enforcing this ruling however.
Read the first two pages. It does state you have to have an FEL to buy the items listed in the publication as non-exempt, and this does include tracer ammunition.

Again, this is all initial reports and I am not a lawyer. This is a similar to the rewording gambit that stopped the importation of 7n6 ammunition.

The issue with all of these “rulings” however, is that they are just filed away as such so that when any agent looks into a matter that they are called to, they will reference it and deem something as illegal or not. It’s an enforcement aid in the form of a legal clarification. Based on my experience with enforcement of ammunition laws, I would say that nothing will change. My personal collecting delves much into pistol-caliber armor piercing ammo (legal), and I see sales of such ammunition from restricted states on a daily basis, with no enforcement from any agency (state level) ever. The reason is simple; nobody knows or cares, and the police have much better things to do, which is basically the same issue with federal level enforcement. Nothing is usually done until a report or complaint is made, or until a criminal is doing something, and such material is found adjacent to a larger investigation (drug trafficking, etc…).

So if somebody sells one of these 40mm flares or something analogous on Gunbroker, nothing is likely to happen as long as nobody calls the BATFE. Most of the time you get sellers who don’t even know what they have, or will say that they didn’t, and the item is just confiscated. That doesn’t mean that an agent who is bored might not browse the internet and find it randomly, but given the sheer amount of minor infractions I constantly see out in the open going unchecked (quite rightly ignored really), I would doubt that this would happen. The two ends of the enforcement spectrum which seem to comprise 95% of law enforcement action are either: nothing at all, or completely random example-making over-reactions such as the action taken against Elite Ammunition, or the wringer that Mark Whitaschek in D.C. was put through over an empty shell casing:
Washington D.C. is the one place where no degree of hype about gun & ammo laws can be undersold, and one should always assume the worst.

So, as a followup, the ATF isn’t currently going after anything other than a bunch of stuff that shouldn’t have been sold.

The letter is still disturbing due to the broadness of the opinion.

“However, devices or articles that contain small arms ammunition or components thereof, but are not small arms ammunition by themselves, are regulated explosives.”

That line is just awful. They should have spent some time thinking that line through.

[quote=“Kolibri”]"However, devices or articles that contain small arms ammunition or components thereof, but are not small arms ammunition by themselves, are regulated explosives."
That line is just awful. They should have spent some time thinking that line through.[/quote]
What they needed to do there is add the word “potentially” in between “are” and “regulated”, in order to leave themselves some leeway in terms of enforcement, but not make an obviously flawed blanket statement.

This sort of unintentional wording happens a lot in legal papers, or ratified statutes and winds up having to be straightened out in court later on.