CBP: We Never Asked the ATF to Reclassify 7N6 5.45×39 Ammo

SLR-106 Folded

On April 7th of last year the ATF reclassified the cheap and widely available 7N6 5.45×39 ammunition as “armor piercing” and banned it from importation. This was widely seen by the gun community as another blatant attempt to make it as expensive and onerous as possible to exercise our Second Amendment rights. The ammunition in question isn’t generally used in crimes and even less frequently used against cops (the rounds were, of course, labeled “cop killer bullets” in the media). The stated impetus for this reclassification? According to the ATF, the U.S. Customs and Border Protection agency (CBP) asked them to check it out. But according to a recently returned FOIA request, CBP never did that . . .

From the ATF’s statement on the reclassification:

On March 5, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) 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.

Given that they explicitly state the source of this “tip” as the CBP, you would expect that the CBP would have some sort of record that they made the request. An email would do (although the Obama administration doesn’t have a good track record with emails). Something in some format should exist if a request actually originated with CBP as the ATF claims.

One person, however, decided to take it upon himself to see what was really going on. He filed a FOIA request to CBP, demanding that CBP hand over any documentation that proved this communication happened. The response came yesterday: there is no record of such a conversation or such a tip ever happening.

From a Reddit thread:

This is a final response to your Freedom of Information Act (FOIA) request to U.S. Customs and Border Protection (CBP). We conducted a comprehensive search of files within the CBP databases for records that would be responsive to your request. Unfortunately, we were unable to locate or identify any responsive records, based upon the information you provided in your request. You have the right to appeal this determination that no records exist within CBP that would be responsive to your request. Should you wish to do so, you must send your appeal and a copy of this letter, within 60 days of the date of this letter, to: FOIA Appeals, Policy and Litigation Branch, U.S. Customs and Border Protection, 90 K Street, NE, 10th Floor Washington, DC 20229-1177, following the procedures outlined in the DHS FOIA regulations at Title 6 C.F.R. 5.9. Your envelope and letter should be marked “FOIA Appeal.” Copies of the FOIA and DHS regulations are available at www.dhs.gov/foia. Please notate file number CBP-2014-020969 on any future correspondence to CBP related to this request.

To be completely accurate, this simply means that there is no record (that CBP can find) of such a conversation happening. It’s entirely possible that the head of CBP was drunk at a party with the head of the ATF and, after many Pabst Blue Ribbons, mentioned the ammo and asked an ATF buddy to look into it. It’s equally possible that CBP is too lazy to do a proper search and the evidence exists, but they can’t be bothered to find it.

Another more interesting possibility: CBP never made the request at all. The request came from somewhere else, and the ATF used CBP as cover so they could plausibly say that the idea didn’t originate from a political figure (like, say, the Attorney General or the President, both of whom see gun ownership as a disease). It would be absolutely lovely to catch the ATF in yet another cover-up.

Another FOIA request is on its way. We’ll see what happens.

comments

  1. avatar younggun21 says:

    Everyone is missing my surprised face. THE ATF MAKES ARBITRARY AND CAPRICIOUS RULINGS??? WHAT?? SINCE WHEN?

    1. avatar NineShooter says:

      Yep. You can’t see it, but this is my shocked face.

  2. avatar RKBA says:

    I can haz Insurrection, Please?

    1. avatar William Burke says:

      Nice!

  3. avatar Cdotson says:

    So you say another FOIA request has been sent; is this the Appeal to the final response posted above, or is this a new FOIA request to the ATF?

    I don’t see why an FOIA request to CBP seeking to document the submission of a request was necessary. Send one to the ATF to document the source of the request, and let it fall out whether it was CBP or not. Given that you already have a final response from CBP stating they can find no such documentation should the ATF then claim national security or some other nonsense excuse to obfuscate then political nefariousness appears more probable.

    1. avatar Craig says:

      Stop posting and get FOIAing then, rather than playing armchair lawyer.

    2. avatar BDub says:

      I assumed from my reading that the second request would be going to the ATF.

      1. avatar USNPJS says:

        ATF never responds to FOIA requests as they don’t consider themselves and “agency” or some nonsense.

        1. avatar Bobiojimbo says:

          Except when it’s convenient to consider themselves an agency.

        2. avatar int19h says:

          This would actually be something that you might get ACLU to help with. They do have FOIA compliance enforcement against govt secrecy as one of their points lately.

          https://www.aclu.org/issues/national-security/secrecy

  4. avatar Roy says:

    I watched Trump’s interview on Bill O’Reilly last night. He mentioned he’s gonna significantly downsize Dept of Ed and EPA when he’s President. He needs to add the ATF too. They’re out of control and completely unnecessary.

  5. avatar uncommon_sense says:

    That there is a fine looking firearm in that photo.

  6. avatar Joe R. says:

    It’s like blaming (D)em voters for Obama. . .

    Wait, we can do that, FU evil liberal blue house of satan’s (D)bag mf’s. F all your broken-ness, this sh_t is on you.

  7. avatar USNPJS says:

    I work for CBP, and during this entire time I have been saying CBP had nothing to do with it. The only way we “classify” goods is by type for taxing purposes, and the only reason to ban something from import is if it’s a consumer safety issue (such as sub par chinese airbags, electronics that easily overheat, etc). We don’t care about whether the ammunition is considered “Armor Piercing”, hell ammunition cartridges fall under the same HTSA category (9306) as torpedos!

    1. That’s a pretty seriously important piece of information. I hope people really think about that.

  8. avatar Mark A. says:

    FOIAs to the ATF regarding this issue have been ignored to date. I sent two and have yet to see any response at all. NSSF settled with them out of court on theirs (with no further info provided). They have no intention of showing where the request came from. This was the canary…the outcry wasn’t too large, so they went for the 855. They found the “limit” and will start tailoring their arbitrary bans accordingly.

    1. avatar Juanito ''Johnnie'' Ibañez says:

      This takes me back to 1986; but it was the Congress that tried the ‘canary’; to-wit: the ‘Machine Gun Ban of `86’; which I unsuccessfully tried to get the NRA to fight. They refused; stating ‘there weren’t enough machine gun owners out there to fight for.’

      I told them that if this went through, they’d be back for more.

      And then came the ‘Assault Weapons Ban of 1994’…..

      To date, most people fail to recognize that the 1993 Waco/Mount Carmel ATF raid on David Koresh and the Branch Davidians was a ‘canary’ to see if the general public would stand for an assault on a long-established church; albeit a ‘cult-type’ church.

      “We the People” failed that ‘canary test’…. most everyone failed to recognize the ‘test’ and failed to protest.

      BTW, in case you were unaware, all ATF had to do was get then-Sheriff Jack Harwell to call Koresh in, as he and Jack got along just fine.

      But the ATF had their funding coming up in Congress and needed a ‘big splash’ to get more money….

  9. avatar Stoopid says:

    It is time to close the ATF. How many armed citizens do you think it will take?

  10. avatar lowell says:

    Again, something to make into a campaign issue. Good god people, tell the Republicans to run against the ATF. Forget the democrats, tell them to run against the alphabet soup agencies. Now that they’ve managed to stop the reclassification of M855, it’s time to get 7N6 back and whatever else we can get.

  11. avatar Chris T from KY says:

    To all gun owners who care. I suggest you study the racist gun control history of the United States of America. This history goes back to the 1600’s. You may see history repeating itself as I do.

    1. avatar Juanito ''Johnnie'' Ibañez says:

      “The Racist Roots of Gun Control”
      by Clayton E. Cramer
      (Kan. J.L. & Pub. Policy, Winter 1995, at 17)
      http://www.constitution.org/cmt/cramer/racist_roots.htm

  12. avatar Chadwick P. says:

    So you couldn’t find a picture of a rifle chambered in 5.45×39? Why the 223/5.56 am pic?

    1. avatar Dustin says:

      Heh, noticed that too. There’s on in 5.45×39 at my LGS tho…

  13. avatar Rokurota says:

    “It would be absolutely lovely to catch the ATF in yet another cover-up.”

    And then what? Holder and the ATF should be breaking rocks for Fast and Furious. I know Congress is still “investigating,” but I’m not placing bets on temporal justice.

  14. avatar george from fort worth says:

    contacting friends with federal govt FOIA responsibility, the following is a thumbnail sketch of how such requests are handled:
    – delay
    – delay some more
    – closely read the request for keywords
    – scan document databases (not all docs are scanned, and physical searches are too difficult)
    – if no document arises that precisely fits the keyword search, no records exist
    – – do not attempt to make keyword associations with commonly used internal-only agency language usage; do not try to interpret what the requester meansl
    – report to the requestor that no document(s) exist that (“specifically match your wording” – but don’t include that statement in the response)
    – report management that the request was satisfied
    – – in cases where management, by law or regulation, must be an active part of resolving a FOIA request, be sure management is protected from liability for the response.
    – go back to work (sleep) and let the serfs and vassals in the countryside go their merry way; remember, we don’t work for them…we work for the government.

  15. Some of the disarmed people murdered by the governments of the world, Christians Rome, Jews Nazi Germany, Aztecs Spanish, Maori of NZ and Aboriginals Australia, Scottish William Wallace, the Irish, Welsh by English and the Native America by the US government. THIS is why we need guns to protect ourselves from those who would subject us to their whim and if this is not enough just google dictators.
    There are over 400 gun laws on the books and they have done nothing to stop the violence. Because of the winey few we are chastised for wanting to protect ourselves. We NEED guns to protect ourselves from criminals in and out of the government. I deserve the right to protect myself and if you don’t like it tough $hit. The 2nd Amendment was put into the Constitution so the people could protect themselves from a corrupt government. That is why it says “shall not infringe” so we can have what the government has to prevent a Holocaust. I believe the people should have what the government has including machine guns. The only gun control law there should be is that criminals can’t have any firearms. Thanks for your vote, pass the word. mrpresident2016.com

  16. avatar Dustin says:

    The ATF lied, lied again, and then lied some more. Then pissed on human rights, again, and used the lies as the justification?

    Like a bolt from the clear blue sky… Never would have expected that from the ATF. [/sarc]

  17. avatar JamesInHouston says:

    So that’s where all that surplus ammo went. I was hoping to snag an ak-74 or variant and buy a crapload of surplus ammo to plink with. It’d be nice if some US manufacturers started putting ak-74’s into production at a reasonable price like they do with the AK-47’s.

  18. avatar Sam J says:

    “Another FOIA request is on its way. We’ll see what happens.”

    Any follow up? I too have filed a FOIA request with the ATF and they have refused to respond.

    1. avatar Sam J says:

      I sent a FOIA request to the ATF via certified mail on April 20, 2016. The request was for:

      “1. Any requests from the U.S. Customs and Border Protection agency (CBP) received by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) on or about March 5, 2014 requesting the ATF 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.
      2. Any receipts or documentation of receiving samples of 7N6 ammunition provided by CBP to the ATF on or about March 5, 2014.”

      The ATF failed to respond within the 20 business days as required by law. I sent a follow up letter via certified mail requesting confirmation of my request and requesting the documents. A week ago I got a letter from the ATF confirming they received my original FOIA request on May 3, 2016. I was informed that all requests are assigned to one of three tracks; simple, complex, and expedited. My request was categorized as complex and they couldn’t give me an estimate of when they would comply. If my request is complex I can’t imagine what they consider a simple request.

      1. avatar Sam J says:

        I received evidence today that the ATF lied about receiving a request from the CBP. In response to my FOIA request to the ATF they were unable to provide a copy of -any- requests from the CBP. The only request they received was from an unnamed ATF Special Agent at the ATF Norfolk Field Office. On March 4, 2014 the unnamed ATF agent sent five 5.45x39mm projectiles from the Norfolk Field Office to the ATF Firearms and Technology Branch using an ATF Firearms Technology Evidence Transmittal Form. The agent comments on the form state:

        “Please expedite as US Customs is currently holding over 2,900,000 rounds of ammunition pending the results of this request. I am attempting to find out what metal was used to construct these projectiles (5.45x39mm). These rounds were descried as FMJ Ball ammunition from Russia. It is believed to be 5.45x39mm 7N6 Russian bullets with steel core and steel jacketed bullet with copper plating.”

        So, the CBP has no record of a request being made to the ATF and the ATF has no record of a request from the CBP. The request originated from an ATF Special Agent that the ATF refuses to name because, as they state in their response to me, it “would be a clearly unwarranted invasion of personal privacy (5 U.S.C. 552(b)(6)).”

  19. avatar Sam J says:

    I sent a FOIA request to the ATF via certified mail on April 20, 2016. The request was for:

    “1. Any requests from the U.S. Customs and Border Protection agency (CBP) received by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) on or about March 5, 2014 requesting the ATF 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.
    2. Any receipts or documentation of receiving samples of 7N6 ammunition provided by CBP to the ATF on or about March 5, 2014.”

    I included in my request a copy of the ATF’s press release. The ATF failed to respond within the 20 business days as required by law. I sent a follow up letter via certified mail requesting confirmation of my request and requesting the documents. A week ago I got a letter from the ATF confirming they received my original FOIA request on May 3, 2016. I was informed that all requests are assigned to one of three tracks; simple, complex, and expedited. My request was categorized as complex and they couldn’t give me an estimate of when they would comply. If my request is complex I can’t imagine what they consider a simple request.

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