In a head-scratching ruling, the ATF has reclassified 40mm practice (“chalk”) rounds and 40mm flares as “destructive devices”, putting them in the same category as actual explosive 40mm grenade ammunition. While several sources have covered this topic, the best treatment I have seen comes from WeaponsMan, and is reproduced in part below:

Ammunition they have confirmed they are confiscating is M992 infrared illumination and the M781 training practice round (seen below on the range, as featured in a WeaponsMan.com story last year).

The practice round has a plastic shell and contains a day-glow orange (and naturally degradable, environmentally friendly, even) chalk filling. It’s supposed to be a ballistic match for the HEDP round.

Here are some comments from an Arfcom thread on the subject. The original post:

“Apparently the 40mm M992 IR flares are considered to be a explosive round. This is news to me. They got my name from the dealer I purchased them from, apparently they didn’t know either. Any one have any info on this. I’ve been googling it for a couple of hours now and can’t find anything.

“He left his card on my front door. He said he was going to bring a copy of the explosives tech branch ruling.”

The follow-up after the ATF visit, emphasis ours:

“Ok so a update. The agent that showed up was an actual bomb tech. I surrendered the rounds under protest per the advice of a attorney. The bomb tech was a really cool guy. He agreed that it was pretty stupid and he hated to do it but he was being forced to help out with the case. He did also tell me that they had sent him out to take 40mm chalk rounds under the same case. I walked out to the truck with him and watched him place the rounds in the explosive magazine in his truck. When I told him I was surrendering the rounds under protest he looked at me and said “good I hope you can fight it and get them back because this whole situation is stupid.” I’m not sure if I will go to court over it or not. I’m not out enough money for it to be a big deal but it’s an issue that has me concerned. I know there are not enough people out there with registered DD M203’s for this case to ever become a big deal but it is really shitty that as far as I can tell all 40mm rounds are considered to be Low Explosives and can not be owned unless you have a explosive licence.”

Note that the “explosives tech branch ruling” has not been furnished, although this letter is circulating. It was addressed to the original Arfcom poster’s dealer, the one that had sold him the rounds.

40mm M992 Confiscation Letter.pdf

And, a comment in the same Arfcom thread by a different user:

“I just contacted my Senator and OMB concerning this. My Senator is very concerned and OMB’s response was interesting in that they say ATF is citing one section of law while ignoring others that define what makes a DD. OMB believes that ATF may be outside of the law on this and will be contacting my Senator tomorrow. After a nice discussion with an investigator there, it appears ATF is fudging the language of the applied section of code to make a determination to allow them to confiscate. The investigator with OMB believes that this may warrant action against FTB in BATFE. We shall see what happens if anything. But there is absolutely no doubt that BATFE is deliberately incorrectly interpreting the section of code and is pursuing illegal action.”

…[Hognose continues]…

Our friends inside ATF say that the initiative was conceived and planned in the Chief Counsel’s Office. That way, managers have explained to the rank and file, they won’t have to answer questions to the public, press or Congress “because everything is under lawyer-client privilege.” They seemed to split on whether Acting Director Thomas Brandon initiated this policy or merely signed off on it. “It wasn’t his idea,” one told us flatly. “He’s not that bright. It came from the lawyers, or from DOJ through the lawyers.”

For what reason the ATF would want to regulate harmless marker rounds is puzzling. It appears however that the ATF has taken action to confiscate these rounds from owners, despite the fact that they contain no actual explosive material.