BATFE Bans Import of Some 7N6 5.45X39 Ammunition — Why?

On April 7, BATFE issued a “Special Advisory” that effectively banned the import of certain Russian-made 7N6 5.45X39 ammunition, a designation of a cartridge whose bullet has a soft steel core. In a subsequent letter questioning why the agency took this step, the National Rifle Association called the ban arbitrary and asked BATFE to clarify why it took this step.

Texas Law Shield and U.S. Law Shield would like a rational statement from BATFE that explains its decision. Mainly, we’re worried that BATFE will arbitrarily ban other imports if this decision isn’t challenged. Background:

According to the April 7 “Special Advisory,” on March 5, the Bureau received a request from the U.S. Customs and Border Protection agency (CBP) to conduct a test, examination and classification of Russian-made 7N6 5.45×39 ammunition for purposes of determining whether it is considered  “armor piercing ammunition” as defined by the Gun Control Act (GCA), as amended.

Since 1986, the GCA has prohibited the importation of armor piercing ammunition unless it is destined for government use or testing. In the letter, the BATFE asserted that the imported ammunition about which CBP was inquiring was not destined for either excepted purpose.

The Gun Control Act of 1968 (GCA), as amended, defines the term “armor piercing ammunition” as:

“(i) a projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium; or

(ii) 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.”

When ATF tested the 7N6 samples provided by CBP, they were found to contain a steel core. ATF’s analysis also concluded that the ammunition could be used in a commercially available handgun, the Fabryka Bronie Radom, Model Onyks 89S, 5.45×39 caliber semi-automatic pistol, which was approved for importation into the United States in November 2011.

Accordingly, the agency said the ammunition is “armor piercing” under the section 921(a)(17)(B)(i) and is therefore not importable. ATF’s determination applies only to the Russian-made 7N6 ammunition analyzed, not to all 5.45×39 ammunition. Ammunition of that caliber using projectiles without a steel core would have to be independently examined to determine their importability, BATFE said in the statement.

According to information BATFE provided to NRA, these actions are based on BATFE’s determination that the availability of a handgun in this caliber triggers so-called “armor piercing” ammunition provisions of federal law, which generally prohibit manufacture and importation.

The NRA wrote in a letter to BATFE that it “strongly disagrees with BATFE’s view of this matter, and we have long sought clarity on BATFE’s widely-varying approach to this issue. We have attended meetings with BATFE, submitted written comments, and issued FOIA requests, all in an attempt to better understand the process by which BATFE exercises its considerable discretion under this broadly-worded federal law. We have also worked with members of Congress to draft legislation to simplify the underlying federal statute and remove BATFE’s broad discretion in this area.”

Bob Goodlatte, chairman of the House Committee on the Judiciary (R VA-6), pointed out in an April 9 letter to B. Todd Jones, BATFE’s director, that the statute BATFE is using to ban import of 7N6 5.45X39 ammunition “would not limit the availability of rifle ammunition with armor-piercing capability.”

As legal organizations that deal with BATFE regulations every day, Texas Law Shield and U.S. Law Shield are concerned that BATFE has taken these steps without sufficient transparency and perhaps legal basis.

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