A.T.F. Brace Rule in Effect, Final Date May 31st

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Action

Final rule.

Summary

The Department of Justice (“Department” or “DOJ”) is amending the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) to clarify when a rifle is designed, made, and intended to be fired from the shoulder. Specifically, under the Gun Control Act of 1968 (“GCA”) and the National Firearms Act of 1934 (“NFA”) the definition of “rifle” shall include a weapon that is equipped with an accessory, component, or other rearward attachment ( e.g., a “stabilizing brace”) that provides surface area that allows the weapon to be fired from the shoulder, provided other factors, as described in this preamble and in the amended regulations, indicate that the weapon is designed, made, and intended to be fired from the shoulder.

Dates

Effective date: This rule is effective January 31, 2023.

Compliance Date: Any weapons with “stabilizing braces” or similar attachments that constitute rifles under the NFA must be registered no later than May 31, 2023.

For Further Information Contact

Denise Brown, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S. Department of Justice, 99 New York Ave. NE, Washington, DC 20226; telephone: (202) 648-7070 (this is not a toll-free number).

Supplementary Information

I. Executive Summary

A. Summary of Regulatory Action

B. Summary of Costs and Benefits

II. Background

A. Authority Under GCA and NFA

B. “Stabilizing Brace” Device-Related Classifications

III. Notice of Proposed Rulemaking

A. Definition of “Rifle”

B. Application of Proposed ATF Worksheet 4999

IV. Analysis of Comments and Department Responses

A. Comments Received in Support

B. Comments Received in Opposition

V. Final Rule

A. Definition of “Rifle”

B. Options for Affected Persons

C. Discussion of Tax Forbearance

VI. Statutory and Executive Order

A. Executive Orders 12866 and 13563

B. Executive Order 13132

C. Executive Order 12988

D. Regulatory Flexibility Act

E. Small Business Regulatory Enforcement Fairness Act of 1996

F. Congressional Review Act

G. Unfunded Mandates Reform Act

H. Paperwork Reduction Act of 1995

I. Executive Summary

A. Summary of Regulatory Action

This executive summary provides an overview of the relevant statutory definitions, a brief overview regarding the regulatory background prompting the issuance of a rule, a description of the earlier published notice of proposed rulemaking (“NPRM”), a description of this final rule after consideration of the comments received on the NPRM, and an overview of options for persons affected by this rule. Nothing in this rule bans “stabilizing braces” or the use of “stabilizing braces” on pistols; however, firearms  (1) with an attached “brace” device may be subject to statutory and regulatory requirements depending on the firearm’s objective design features and other factors, as discussed in this rule. Furthermore, this rule does not impose any new legal obligations on owners of “stabilizing braces” at all, as any obligations for these owners result only from the NFA and the GCA. Instead, this rule merely conveys more clearly to the public the objective design features and other factors that indicate a weapon is in fact a firearm or short-barreled rifle under the relevant statutes.

The GCA definition of “firearm” is broad and includes “any weapon (including a starter gun) which will or is designed to, or that may be readily converted to, expel a projectile by the action of an explosive.” 18 U.S.C. 921(a)(3)(A). This definition does not include an antique firearm. The GCA additionally provides definitions for the terms “rifle” and “short-barreled rifle.” 18 U.S.C. 921(a)(7), (a)(8). A “rifle” is defined as “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of an explosive to fire only a single projectile through a rifled bore for each single pull of the trigger.” 18 U.S.C. 921(a)(7). A “short-barreled rifle” is defined as “a rifle having one or more barrels less than sixteen inches in length and any weapon made from a rifle (whether by alteration, modification, or otherwise) if such weapon, as modified, has an overall length of less than twenty-six inches.” 18 U.S.C. 921(a)(8). The GCA imposes specific controls on the interstate transport of “short-barreled rifle[s]” and requires Federal firearms licensees (“FFLs”) to receive approval from the Attorney General prior to the sale of a “short-barreled rifle.” 18 U.S.C. 922(a)(4), (b)(4). (2)

The GCA also defines the term “handgun” as “(A) a firearm which has a short stock and is designed to be held and fired by the use of a single hand; and (B) any combination of parts from which a firearm described in subparagraph (A) can be assembled.” 18 U.S.C. 921(a)(30). A pistol, which is a type of handgun, is defined under 27 CFR 478.11 and 479.11 as a weapon originally designed, made, and intended to fire a projectile from one or more barrels when held in one hand that has both a chamber as an integral part of, or permanently aligned with, the bore and a short stock designed to be gripped by one hand at an angle to and extending below the line of the bore.

The NFA defines the term “firearm” differently and more narrowly than does the GCA. Under the NFA, the term “firearm” includes “a rifle having a barrel or barrels of less than 16 inches in length” and “a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length” (also known as “short-barreled rifle[s]” as that term is defined under the GCA). 26 U.S.C. 5845(a)(3)-(4); 18 U.S.C. 921(a)(8). The NFA defines the term “rifle” as “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.” 26 U.S.C. 5845(c). The section of the NFA’s definition of “firearm” that includes a “rifle with a barrel or barrels less than 16 inches in length” and a “weapon made from a rifle” is nearly identical to the GCA’s definition of “short-barreled rifle.”

Firearms falling under the purview of the NFA must be registered in the National Firearms Registration and Transfer Record (“NFRTR”) to a person  (3) entitled to possess the firearm, 26 U.S.C. 5841; require approval by the Attorney General before their transfer or making, 26 U.S.C. 5812, 5822; and are subject to transfer and making taxes, 26 U.S.C. 5811, 5821. Additionally, any person engaged in the business of importing, manufacturing, or dealing NFA firearms must register with the Attorney General and pay a special (occupational) tax (“SOT”). 26 U.S.C. 5801, 5802. Generally, all “rifles,” “weapon[s] made from a rifle,” and “rifle[s] having a barrel or barrels of less than 16 inches in length” for purposes of the NFA are also “firearms” under the GCA.

In 2012, an FFL submitted the first “stabilizing brace” (or “brace” device) to ATF asking if the addition of their prototype “brace” device to a heavy pistol, (4) such as an AR-15 type pistol, would change that pistol’s classification under Federal firearms laws. (5) The submitter described that the “brace” device was designed with the intent to assist people with disabilities so that they could fire these kinds of heavy pistols safely and comfortably, as they could be “difficult to control with the one-handed precision stance.”  (6) In response to this inquiry, ATF examined the submitted “stabilizing brace” device and found the sample “provide[d] the shooter with additional support of a firearm while it is still held and operated with one hand” and that the device was not “designed or intended to fire a weapon from the shoulder.” Accordingly, ATF concluded that the submitted “brace,” when attached to a firearm, did “not convert that weapon to be fired from the shoulder and would not alter the classification of a pistol or other firearm,” and therefore, “such a firearm would not be subject to NFA controls.”  (7)

Since then, the variety of available “stabilizing braces” or similar “brace” devices and pistols equipped with “braces” has grown significantly. In 2014, ATF began to see “braces” being used to fire weapons from the shoulder and new “brace” designs that included characteristics common to shoulder stocks. ATF’s previous classifications had analyzed whether “brace” devices could effectively be used on the forearm for single-handed firing (as the manufacturer claimed). Additionally, for a period of time, many of ATF’s classifications did not consider: (1) whether the firearm equipped with a specific “brace” model was designed or redesigned to be fired from the shoulder based on the objective design features of the weapon, or (2) how the firearm equipped with the “brace” was being used in the general community. The diversity of “brace” devices yielded a plethora of firearms with an attached “stabilizing brace” that possess objective design features indicative of firearms designed, made, and intended to be fired from the shoulder. (8) As explained in this rule, because a majority of these firearms with an attached “stabilizing brace” are configured as rifles and have a barrel or barrels of less than 16 inches in length, they fall under the purview of the NFA. Therefore, under the statute and regulations, individuals who attach a “stabilizing brace” to a firearm could find themselves making an NFA firearm without abiding by the registration and taxation requirements of the NFA.

Furthermore, ATF has made clear to makers and manufacturers that despite their purported intent with respect to the use or design of an accessory, the requirements of the NFA cannot be circumvented by attempting to configure a firearm with a purported “stabilizing brace” when the affixed device and configuration of the firearm includes features inherent in shoulder-fired weapons. (9) For these reasons, it is necessary for the Department to amend the regulatory definition of “rifle” to make clear to the public the objective design features and other factors that must be considered when determining whether a firearm equipped with an accessory, component, or other rearward attachment ( e.g., a “stabilizing brace”) is a rifle designed, made, and intended to be fired from the shoulder. Although ATF will consider a manufacturer’s stated intent as reflected in direct and indirect marketing materials or other information demonstrating the likely use of the weapon in the general community in assessing whether the firearm is or is not designed, made, and intended to be fired from the shoulder, the objective design features of the weapon may support or undermine that intent, and the stated intent will not necessarily be dispositive.

On June 10, 2021, the Department published an NPRM in the Federal Register titled, “Factoring Criteria for Firearms With Attached `Stabilizing Braces’,” 86 FR 30826. The NPRM proposed amending ATF’s definitions of “rifle” in 27 CFR parts 478 and 479 to expressly state that the term may include firearms equipped with a “stabilizing brace,” even though such firearms were already implicitly included in the definition by virtue of the fact that they were designed, made, and intended to be fired from the shoulder. The proposed amendment clarified that a firearm equipped with a “stabilizing brace” device falls under the definition of “rifle” if the weapon “has objective design features and characteristics that facilitate shoulder fire,” as indicated on ATF Worksheet 4999, Factoring Criteria for Rifled Barrel Weapons with Accessories commonly referred to as “Stabilizing Braces” (“Worksheet 4999”). Id. at 30851. The Department published for public comment the criteria ATF considers when evaluating the objective design features of firearms equipped with a “stabilizing brace” to determine whether the weapon is a “rifle” or “short-barreled rifle” under the GCA and a “rifle” or “firearm,” ( i.e., a short-barreled rifle) under the NFA. The NPRM also included the proposed Worksheet 4999, which assigned points to various criteria and provided examples of how the Worksheet 4999 would be used to evaluate firearms equipped with certain models of “stabilizing braces.”

After careful consideration of the comments received regarding the complexity in understanding the proposed Worksheet 4999 and the methodology used in the Worksheet to evaluate firearms equipped with a “brace” device, this final rule does not adopt some aspects of the approach proposed in the NPRM, specifically the Worksheet 4999 and its point system. Instead, based on the comments received, the Department took the relevant criteria discussed in the NPRM and Worksheet 4999 that indicate when a firearm is designed, made, and intended to be fired from the shoulder and incorporated them into the rule’s revised definitions of rifle. Because both the GCA and NFA define a “rifle” as a weapon “designed or redesigned, made or remade, and intended to be fired from the shoulder,” the Department believes that a weapon that is equipped with an accessory, component, or other rearward attachment ( e.g., a “stabilizing brace”) that provides surface area that allows the weapon to be fired from the shoulder is a rifle, provided the other factors described in this preamble and listed in the final regulatory text indicate the weapon is designed, made, and intended to be fired from the shoulder.

Accordingly, the Department amends the definition of “rifle” under 27 CFR 478.11 and 479.11 to expressly state that the term “designed or redesigned, made or remade, and intended to be fired from the shoulder” includes a weapon that is equipped with an accessory, component, or other rearward attachment ( e.g., a “stabilizing brace”) that provides surface area that allows the weapon to be fired from the shoulder, provided other factors, as listed in the amended regulations and described in this preamble, indicate that the weapon is designed, made, and intended to be fired from the shoulder. The other factors are:

(1) Whether the weapon has a weight or length consistent with the weight or length of similarly designed rifles;

(2) Whether the weapon has a length of pull, measured from the center of the trigger to the center of the shoulder stock or other rearward accessory, component or attachment (including an adjustable or telescoping attachment with the ability to lock into various positions along a buffer tube, receiver extension, or other attachment method), that is consistent with similarly designed rifles;

(3) Whether the weapon is equipped with sights or a scope with eye relief that require the weapon to be fired from the shoulder in order to be used as designed;

(4) Whether the surface area that allows the weapon to be fired from the shoulder is created by a buffer tube, receiver extension, or any other accessory, component, or other rearward attachment that is necessary for the cycle of operations;

(5) The manufacturer’s direct and indirect marketing and promotional materials indicating the intended use of the weapon; and

(6) Information demonstrating the likely use of the weapon in the general community.

All of the objective design features and factors listed in the rule that indicate the weapon is designed, made, and intended to be fired from the shoulder are derived from the NPRM and proposed Worksheet 4999.

The revised definition in this final rule clarifies, consistent with the best interpretation of the statutory provision, that firearms with an attached “stabilizing brace” can possess objective design features that make them “rifles,” as that term is defined under the NFA and GCA. If a firearm with an attached “stabilizing brace” meets the definition of a “rifle” based on the factors indicated in this final rule, then that firearm could also be a short-barreled rifle depending on the length of the attached barrel, thus subjecting it to additional requirements under the NFA and GCA. However, a firearm with an attached “brace” device is not a “rifle” as defined in the relevant statutes if the weapon is not designed, made, and intended to be fired from the shoulder. The rule, as proposed and finalized, does not ban “stabilizing braces” or prohibit firearms with an attached “stabilizing brace,” regardless of the firearm’s classification.

This revised definition reflects the Department’s understanding of the best interpretation of the statute, and it is immediately effective. See 5 U.S.C. 553(d)(2). In addition, because prior ATF classifications of firearms equipped with a “brace” device did not all employ this correct understanding of the statutory terms, all such prior classifications are no longer valid as of January 31, 2023. While firearms equipped with “stabilizing braces” or other rearward attachments may be submitted to ATF for a new classification determination, a majority of the existing firearms equipped with a “stabilizing brace” are likely to be classified as “rifles” because they are configured for shoulder fire based on the factors described in this rule. Because many of these firearms generally have a barrel of less than 16 inches, they are likely to be classified as short-barreled rifles subject to regulation and registration under the NFA and GCA.

Consequently, many parties in possession of weapon and “brace” combinations that ATF did not specifically classify in the past as being subject to the NFA may have been violating the NFA by possessing an unregistered rifle with a barrel of less than 16 inches. In addition, where the Department is overruling ATF’s previous classification letters, possessors of the firearms equipped with “stabilizing braces” that were at issue in those letters may also be in possession of unregistered NFA firearms. Prior to the publication of the NPRM and this rule to clarify the regulatory definition of a rifle, many parties did not register these firearms due to a variety of factors discussed in this rule. Therefore, in exercising its enforcement discretion, the Department provides affected persons options that they can choose from by May 31, 2023 to comply with the statutory requirements. For example, possessors of such weapons, whether an unlicensed individual or an FFL (regardless of SOT status), may register the firearms to comply with the statutory requirements. As discussed in section V.B of this preamble, ATF strongly encourages affected parties to use the eForms system ( https://eforms.atf.gov ) to submit an electronic version of the appropriate NFA forms. Any penalties for failure to take the necessary action for these existing firearms to comply with Federal law would result only from conduct occurring after this time period to take action ends.

Provided the registration form is properly submitted and documented within the defined time period, the Department will consider individuals to be in compliance with the statutory requirements between the date on which a person’s application is filed and the date a person receives ATF approval or disapproval of the application. After the 120-day registration period following publication of this rule, registration of previously made or manufactured weapons with a “stabilizing brace” that constitute NFA firearms will not be permitted. The Department at that time may take enforcement action against any person in possession of an affected firearm that is a short-barreled rifle for which a registration has not been submitted.

Apart from registration, there are other options that are set out in section V.B. of this preamble that include modifying affected weapons to remove them from the definition of a short-barreled rifle, destroying the firearm, or surrendering the firearm to law enforcement. Registering the firearm or modifying the configuration of such a firearm within the defined time period will enable affected persons to lawfully retain possession of their firearm under Federal law. While possessors of such weapons will themselves be able to apply the factors outlined in the amended regulatory text, ATF is publishing information simultaneously with this rule that will inform the public of both (1) common weapon platforms with attached “stabilizing brace” designs and (2) examples of commercially available firearms equipped with a “stabilizing brace” that are short-barreled rifles. Additionally, an individual may contact ATF to receive a determination of whether their firearm equipped with a “stabilizing brace” is a rifle as defined by the GCA and NFA.

The Department has determined that, as a matter of its own enforcement discretion, it will not, as the NPRM suggested as an option, require individuals and FFLs without an SOT that timely register their affected weapons with a “stabilizing brace,” which are in their possession as of the date this rule is published, to pay the $200 making tax usually due upon submission of such an application to register. Likewise, Type 7 FFLs (regardless of SOT status) that timely register the weapons with a “stabilizing brace” that qualify as an NFA firearm and that are still in their inventory— i.e., that have not been sold or otherwise transferred—will not owe any making tax for these weapons. Furthermore, the Department has determined that, as a matter of its own enforcement discretion, it will not seek to collect retroactive taxes ( i.e., $200 making or $200 transfer tax) typically required for each weapon with a “stabilizing brace” that qualifies as an NFA firearm that was manufactured or transferred at any time prior to the date of the publication of this final rule. See section V.C.

Notwithstanding the 120-day compliance period, discussed above, the rule is immediately effective in that the Department may seek to enforce the NFA’s requirements with respect to any new making or new transfer of a weapon with an attached “stabilizing brace” that constitutes a short-barreled rifle under the NFA. The Department believes that delaying enforcement of the relevant NFA provisions is not necessary to allow an equitable opportunity for compliance because all persons, through publication of this rule, have received notice that the NFA may in fact apply to their conduct. Further delaying enforcement also would be inconsistent with public safety. Therefore, ATF may enforce the NFA against any person or entity that—any time after the publication date of this rule—newly makes or transfers a weapon with an attached “stabilizing brace” that constitutes a short-barreled rifle under the NFA. For purposes of the Congressional Review Act, however, the Department will wait to actually initiate such enforcement actions for at least 60 days from publication of the rule in the Federal Register . See 5 U.S.C. 801(a)(3).

B. Summary of Costs and Benefits

In sum, ATF anticipates the cost of the rule is $266.9 million, annualized and discounted at seven percent. The total costs calculated for this rule take into account the various options, described above, that affected parties can choose from to come into compliance with the statutory requirements. The benefit of this rule is preventing manufacturers and individuals from violating the requirements of the NFA and GCA. Congress placed stricter requirements on the making and possession of short-barreled rifles, deeming them to be dangerous and unusual weapons and posing a significant danger to the public, as discussed below. This rule enhances public safety by reducing the further proliferation and criminal use of firearms with attached “stabilizing braces.” Refer to the standalone Final Regulatory Impact Analysis, available on www.atf.gov, for a full discussion of the potential costs and benefits of the rule.

Yes, that was the SUMMARY folks…