BATFE Classification of Arm Braces out for comment

[Sandman1957]

Got the Notice for Arm Brace comments yesterday from BATFE.

 

https://www.federalregister.gov/documents/2020/12/18/2020-27857/objective-factors-for-classifying-weapons-with-stabilizing-braces#addresses

 

"...this notice previews ATF's and the Department of Justice's plan to subsequently implement a separate process for current possessors of stabilizer-equipped firearms to choose to register such firearms in compliance with the NFA, including an expedited application process and the retroactive exemption of such firearms from the collection of NFA taxes."

Edited December 21, 2020 by Sandman1957

[StrangeRanger]

It's not bump stocks they're talking about, it's those "arm braces" that make a pistol functionally an SBR.

 

The NFA has been around since 1934 and while we in the C3 world may grumble about it generally no one has sought to challenge it outside of court until recently. Now we have companies producing devices like bump stocks, arm braces that turn pistols into SBRs, "firearms" that are actually SBSs, and binary triggers that are 2/3 of a burst fire SMG. The purveyors of this stuff have parsed the letter of the law a bit too cleverly and found loopholes that allow them to produce devices that fly in the face of the commonplace understanding of the terms rifle, shotgun and submachine gun. Did anyone think that ATF wouldn't notice? Or wouldn't care? The gun owners who bought this crap thinking that they were sticking it to ATF brought this on themselves and now they're whimpering about it.

 

When you poke the bear expect to get bit.

Edited December 21, 2020 by StrangeRanger

[APEXgunparts]

I received this alert from Johanna at Reeves-Dola.

If you attended an NFA/TCA meeting at SAR you have heard her speak:

 

 

News from Reeves & Dola, LLP

 

ATF to Publish Objective Factors for Classifying Weapons with Stabilizing Braces

The Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") is set to publish a notice (the "Notice") on the objective features the agency considers when evaluating firearms with an attached stabilizing brace to determine whether said firearms are subject to the National Firearms Act ("NFA"). ATF will accept comments from the public until January 4, 2021 (this is the first business day after January 1, which is technically 14 days after the publication date of December 18, 2020). ATF is referring to this publication as "proposed guidance" that does not have the force and effect of law and is not meant to bind the public in any way. ATF goes on to state that, "although there is no requirement that a guidance document be published for notice and comment, ATF has decided to publish the proposed objective factors in the Federal Register for a brief comment period, given the public interest surrounding these issues."

This Notice is the most recent development in the pistol brace saga, and some would say it is not shocking. However, earlier this past summer, when suspicions began forming within industry and certain lawmakers that ATF was secretly working on possibly banning stabilizing braces, at least one trade group publicly announced that it had spoken with ATF officials and was satisfied that pistol braces were not being reviewed for restrictions.

Background - The National Firearms Act

Congress enacted the NFA in 1934 under its taxing power to control certain weapons believed to be contributing to violent crime. Through registration and tax requirements, the statute controls such weapons as machineguns, silencers (suppressors), destructive devices, and short barrel rifles and shotguns.

For a rifle to be subject to the NFA as a short barrel rifle, the following must be present: (1) the weapon must be designed, redesigned, made or remade, and intended to be fired from the shoulder; (2) the weapon must have a rifled bore; (3) the weapon must use the energy of an explosive in a fixed cartridge to fire a single projectile for a single pull of the trigger; and (4) the weapon must have a barrel or barrels measuring less than 16 inches in length, or an overall length less than 26 inches.

The statutory criteria for classification of a shotgun as a short barrel shotgun are: (1) the weapon must be designed, redesigned, made or remade, and intended to be fired from the shoulder; (2) the weapon must have a smooth bore; (3) the weapon must use the energy of an explosive in a fixed shotgun shell to fire either a number of projectiles (ball shot) or a single projectile (rifled slugs) for each pull of the trigger; and (4) the weapon must have a barrel or barrels of less than 18 inches in length, or an overall length less than 26 inches.

The NFA requires registration of all firearms listed in the statute, advance ATF approval for any transfer, and payment of a $200 transfer tax for each firearm transferred (except so-called "any other weapons," which are subject to a $5 transfer tax). In addition to the licensing requirements of the GCA, persons who engage in the business of manufacturing NFA firearms must register with ATF and pay a special (occupational) tax.

ATF Firearm Classifications

Industry is encouraged to seek an evaluation (classification) from ATF whenever there is a question as to how a certain firearm configuration may be controlled under the laws and regulations, including whether a particular configuration may be subject to the NFA. As noted above, the proposed criteria in the Notice is what would be used by ATF when reviewing a firearm with an attached stabilizing brace.

The ATF division responsible for evaluating and classifying firearms is the Firearms and Ammunition Technology Division ("FATD") within ATF's Office of Enforcement Programs and Services. FATD is made up of two branches: an industry services branch and a criminal branch. The Firearms Technology Industry Services Branch supports the firearms industry and the general public by responding to technical inquiries and by testing and evaluating firearms submitted for classification as to their regulation under the GCA and/or NFA. The Firearms Technology Criminal Branch issues firearm classifications in response to requests from law enforcement or pursuant to an investigation.

The Notice provides a description of the firearm evaluation process. "Generally, when FATD evaluates a firearm sample, it examines its overall configuration, physical characteristics, objective design features that are relevant under the statutory definitions of the GCA and NFA, and any other information that directly affects the classification of a particular firearm sample. Even though firearms may appear to have similar features, an ATF classification pertains only to the particular sample submitted, because variations in submissions, applicable statutes, judicial interpretations of these statutes, the manufacturer’s or maker’s intent, and the objective design features supporting that intent, make the general applicability of any particular classification exceedingly rare."

So even though neither the statute nor the regulations require an ATF classification, arguably to achieve full comfort for compliance purposes, one must obtain an ATF classification. To underscore this, it is important to remember that courts will often defer to ATF's technical expertise and statutory interpretation when there is a question as to whether a firearm is subject to the NFA.

Please note, for the general public, including industry, the processing times for firearm classifications is at least a year due to personnel shortages. How can a company licensed under the Gun Control Act as a manufacturer or importer realistically operate a business with such a shocking delay?

The Objective Design Features

The Notice sets forth nine "objective design features" (many of which arguably are more subjective rather than objective) that ATF proposes to consider when evaluating whether a firearm with a stabilizing brace has been "designed or redesigned, made or remade, and intended to be fired from the shoulder." The design features ATF has identified are (each described in detail in the Notice):

 

• The type of firearm and caliber;
• The weight and length of the firearm;
• Length of pull;
• The method with which the brace is attached;
• "Objective" design features of the brace;
• Whether the aim point results in upward or downward trajectory;
• The presence of a secondary grip;
• The presence of sights and scopes; and
• Installation of peripheral accessories commonly found on rifles or shotguns.

 

ATF explains that the listed factors are based on known stabilizing braces and similar attachments, and that no single factor or combination of factors is necessarily dispositive because "FATD examines each weapon holistically on a case-by-case basis."

Further it is important to note that the so-called objective list is not exhaustive because of changes in design or configuration of a weapon or attachment as well as future changes in technology. In other words, ATF reserves the option of identifying other factors that could be relevant to a weapon's classification, with ATF having the sole authority to determine such factors.

Affected Stabilizer-Equipped Firearms

In the Notice, ATF explains that it recognizes there has been a "misunderstanding" among industry that a pistol with a stabilizing brace would always be a treated as a pistol. But this is not always the case, according to ATF, "because some firearms are configured or have characteristics such that they meet the statutory definition of 'rifle or shotgun'", thereby bringing it within the controls of the NFA. Such firearms ATF refers to in the Notice as "affected stabilizer-equipped firearms."

ATF does recognize that "most persons who acquired affected stabilizer-equipped firearms in good-faith reliance on representations, made by those selling the stabilizing braces or the firearms, that those firearms were not subject to the NFA." To address this, ATF presents a plan to work with such persons.

 

ATF's Plan to Allow Current Possessors
to Cure
Affected Stabilizer-Equipped Firearms

ATF states that "following issuance of this notice, ATF and DOJ plan to implement a separate process by which current possessors of affected stabilizer-equipped firearms may choose to register such firearms to be compliant with the NFA." The process would include expedited processing of registration applications and retroactive exemption from the NFA tax, as long as the firearms were made or acquired prior to the publication of "this notice." Query whether the cut-off date will be December 18, 2020 (the publication date of this Notice) or another date (maybe the date of publication of the final guidance?. We reached out to ATF for clarification of this language and were informed the date has not been determined yet.

ATF further explains that the separate process may include the option to (i) register the firearm in compliance with the NFA, (ii) permanently remove and dispose of the stabilizing brace, (iii) replace the barrel with one that is at least 16" or greater for a rifle, or at least 18" for a shotgun, (iv) surrender the firearm to ATF, or (v) destroy the firearm. ATF states it will exercise its discretion not to enforce the registration provision of the NFA against any person who, before publication of this notice (again, does this mean December 18, 2020, or another date based on publication of the final guidance document), in good faith acquired, transferred, made, manufactured, or possessed an affected stabilizer-equipped firearm. However, note that this discretion will hinge on there being no substantial public safety concern.

This Notice is not a determination that any particular weapon with a stabilizing brace is an NFA-controlled firearm. "To the extent the ATF Director subsequently issues such a determination, the ATF Director, at the direction of the Attorney General [note the change in administration that is about to occur in a few weeks], plans retroactively to exempt such firearms from the collection of NFA taxes, provided those firearms were made or acquired in good faith prior to the publication of this notice." (Emphasis added).

Opportunity to Comment

Remember, this Notice is just that, a notice of guidance that will become effective only after ATF publishes the document in final form in the Federal Register, which will occur sometime after ATF receives and reviews the public comments. "Upon issuance of final guidance, ATF will provide additional information to aid persons and companies in complying with Federal laws and regulations."

It is very important that industry take this opportunity to submit comments to ATF. Comments must reference the docket number (ATF 2020R-10) and include the commenter's first and last name and full mailing address. Comments may be submitted once the Notice is officially published on December 18, 2020 (the official publication will be available at the Federal Register website).

 

The most effective comment is one that provides examples and recommendations for ATF to improve the substance of the guidance. This is industry's opportunity to have a say in what ATF will publish, and comments will be public. Although ATF will decide what comments to accept or deny, the final guidance document will address comments received and the agency's response. Specific instructions on comment submission is in the Notice.

 

 

The above alert is for informational purposes only and is not intended to be construed or used as legal advice. Receipt of this alert does not establish an attorney-client relationship.

[DZelenka]

Part of the problem is that ATF does not have objective criteria for determining whether one of these so called braces when attached to a pistol is an SBR. Perhaps they will fix that. In the meantime, I cancelled all of my AR pistol orders.

 

 

Dan

[Sandman1957]

Dan, good catch, mind has stopped working. Tried to edit the title, but could not do, perhaps a moderator will clean it up for me. At least those who do register them will not pay the initial tax on the. Similar to the 1968 amnesty.

[ron_brock]

Corrected the title to arm braces.

 

I’ve never been a fan of these devices that closely skirt the current status quo, like oil filter adapters, fuel filter kits, Chinese Glock toys, etc.

 

Ron

[RoscoeTurner]

Corrected the title to arm braces.

 

I’ve never been a fan of these devices that closely skirt the current status quo, like oil filter adapters, fuel filter kits, Chinese Glock toys, etc.

 

Ron

 

I have felt the same way, these devices will only serve to needlessly open up a Pandora's box of other problems.

[emmagee1917]

This has been going on for decades . M1 carbine kits , suppressor guts with the tubes a few tables down the aisle , drop in auto sears , Gatling gun crank triggers for rifles , on and on . We are our own worst enemy , all to try and save $200 .

Still , it is just wrong for the government to OK something , then pull the plug after a bit of time and walk away . I'm not saying they can't do it , it's the walk away part . They should be forced to compensate fairly the manufacturers and the stores stocking and the buyers . not only for the product . but machinery , set up costs , everything .

Chris

[colt21a]

BOUGHT A FAL RIFLE. When they came for me and my Fal. there was no one left to get.They even got Dennis Hopper.

[johnsonlmg41]

This has been going on for decades . M1 carbine kits , suppressor guts with the tubes a few tables down the aisle , drop in auto sears , Gatling gun crank triggers for rifles , on and on . We are our own worst enemy , all to try and save $200 .

Still , it is just wrong for the government to OK something , then pull the plug after a bit of time and walk away . I'm not saying they can't do it , it's the walk away part . They should be forced to compensate fairly the manufacturers and the stores stocking and the buyers . not only for the product . but machinery , set up costs , everything .

Chris

 

Not picking on you, however the glitch lies in that they never OK'd any of this. They never had the authority to evaluate anything other than firearms which is why they publicly stated so last year IIRC that any submissions of anything that wasn't a firearm wouldn't be accepted. Admittedly they let this linger on far too long IMO and created 90% of this mess in doing so. All these parts are all legal, but as people assemble a particular configuration is where the problems arise. If you have fertilizer in the back of a diesel pickup, it doesn't make you a bomber?

I have friends who have these and they asked for advice before buying and I warned them of a slippery slope yet they bought them anyhow with high hopes, and I agree they were sort of suckers, but gov. did fail here.

IMO the best course of action may be to hold congress on the hook and now that we have all these "new NFA guys" we maybe go after getting rid of the whole SBR/SBS category all together since it's obsolete and with a few million more of "us" to apply pressure instead of just the hardcore tens of thousands? Looks like a crisis, maybe WE shouldn't let it go to waste?

Just trying to think out of the box?

[DZelenka]

 

This has been going on for decades . M1 carbine kits , suppressor guts with the tubes a few tables down the aisle , drop in auto sears , Gatling gun crank triggers for rifles , on and on . We are our own worst enemy , all to try and save $200 .

Still , it is just wrong for the government to OK something , then pull the plug after a bit of time and walk away . I'm not saying they can't do it , it's the walk away part . They should be forced to compensate fairly the manufacturers and the stores stocking and the buyers . not only for the product . but machinery , set up costs , everything .

Chris

 

Not picking on you, however the glitch lies in that they never OK'd any of this. They never had the authority to evaluate anything other than firearms which is why they publicly stated so last year IIRC that any submissions of anything that wasn't a firearm wouldn't be accepted. Admittedly they let this linger on far too long IMO and created 90% of this mess in doing so. All these parts are all legal, but as people assemble a particular configuration is where the problems arise. If you have fertilizer in the back of a diesel pickup, it doesn't make you a bomber?

I have friends who have these and they asked for advice before buying and I warned them of a slippery slope yet they bought them anyhow with high hopes, and I agree they were sort of suckers, but gov. did fail here.

IMO the best course of action may be to hold congress on the hook and now that we have all these "new NFA guys" we maybe go after getting rid of the whole SBR/SBS category all together since it's obsolete and with a few million more of "us" to apply pressure instead of just the hardcore tens of thousands? Looks like a crisis, maybe WE shouldn't let it go to waste?

Just trying to think out of the box?

Unfortunately, we have the wrong party in power at the moment. I describe the brace issue to people by using a coupe examples. First being a 9" .300 Blk AR-15 with a red dot and a brace and the second a 12.5" .308 AR-10 with an LPVO and a brace. Clearly, one COULD be shot as a pistol. Clearly the other is set up as an SBR. How can the ATF deal with these except on a case by case basis? It is literally dependent on how the consumer sets up his firearm. If ATF provides an objective standard, perhaps manufacturers could configure firearms to meet that standard. We shall see.

 

Dan

[TSMGguy]

It's not bump stocks they're talking about, it's those "arm braces" that make a pistol functionally an SBR.

 

The NFA has been around since 1934 and while we in the C3 world may grumble about it generally no one has sought to challenge it outside of court until recently. Now we have companies producing devices like bump stocks, arm braces that turn pistols into SBRs, "firearms" that are actually SBSs, and binary triggers that are 2/3 of a burst fire SMG. The purveyors of this stuff have parsed the letter of the law a bit too cleverly and found loopholes that allow them to produce devices that fly in the face of the commonplace understanding of the terms rifle, shotgun and submachine gun. Did anyone think that ATF wouldn't notice? Or wouldn't care? The gun owners who bought this crap thinking that they were sticking it to ATF brought this on themselves and now they're whimpering about it.

 

When you poke the bear expect to get bit.

 

Very well reasoned and written. Had the same thoughts when I first saw "stabilizers", bump stocks, and binary triggers.

 

Am a bit surprised that semi-auto pistols produced in 7.62x39 and 5.45x39 did not trigger prohibitions on steel core surplus ammo. At least, we seem to still be able to buy it.

[lightguy]

One has to wonder how many crimes have been committed with these "pistols" ?
What is the purpose of this ATF action ?
Public safety ?

[ppgcowboy]

One has to wonder how many crimes have been committed with these "pistols" ?

What is the purpose of this ATF action ?

Public safety ?

Public control.

[StrangeRanger]

Or simply enforcement of a long existing law that is widely being broken

[StrangeRanger]

Here's some background, taken from CMMG's web site:

 

https://cmmginc.com/wp-content/uploads/2019/01/Barnes-Stabilizing-Brace-Letter-Final-3.21.17.pdf

 

It appears that this proposed new ruling is nothing that ATF hasn't stated before. People who bought these things with "a wink and a nudge" failed to realize that ATF wasn't in on the joke.

[Got Uzi]

Wait wait wait you mean to tell me that putting a rifle tube on an AR with a barrel shorter than 16 and putting a do-hikkie on it called an arm brace is a constitutional right? Even tho most who use them know EXACTLY what it is they are doing and avoiding?

 

The whore arm brace thing has been a joke from day one. Now I will admit I have a pair of them as I had to get one of the SBA3s last fall to see how well they braced and I have one for my PTR MP5. Whoever says they are for bracing on your arm is full of it-these are stocks and a work around the NFA that is now in question and honestly went on longer than I expected they would.

 

The funny part is people are paying more for these braces than what it would cost to have the gun engraved and SBRd to begin with LOL

[StrangeRanger]

Here’s the part I really don’t get:

 

The whole brace thing may make some tactical sense on a SIG, PTR, CZ or the like where you can put a side folder on it to create a very compact weapon and deploy the stock only when needed. However the vast majority of these “pistols” are built on AR platforms. An AR with a 10.5” barrel is typically at or slightly above the 26” minimum length for a legal rifle vs. 32” for a 16” barrel.

 

So instead of dealing with the questionable legality of a brace assisted “pistol” someone could just buy a completely legal Tavor and be done with it. Admittedly the Tavor costs more than a low-end ARs but it avoids the hassles.

 

When you look at pistol calibers and shorter barrels you’re still looking at a 24” OAL with an 8” barrel vs. 26” OAL for a Tavor 9mm or 30" OAL for a Beretta Storm or a Kel-Tec Sub2K.

 

So either way is the 6” or less reduction in length really worth the effort and the trade-off in ballistic performance?

 

I agree with Got Uzi that the overwhelming majority of these things were purchased by people whose sole intention was to circumvent the NFA. I am actually somewhat miffed that ATF is contemplating giving these people a free stamp vs. the $200 that those who played by the rules had to spend.

Edited December 23, 2020 by StrangeRanger

[DZelenka]

One has to wonder how many crimes have been committed with these "pistols" ?

What is the purpose of this ATF action ?

Public safety ?

Ohio mass shooting victims: What we know about those injured and killed Dayton, Ohio - CBS News

[DZelenka]

Does anyone have a good estimate on the number of these braces in circulation? 100,000s or 1,000,000s?

 

If enough of them are in circulation, can they be said to be in common usage? Could this form the basis of a constitutional attack on at least parts of the NFA?

 

You know there will never be any relief by the Congress.

 

Dan

[Got Uzi]

The one estimate I heard was 4m of the braces in usage. The whole arm brace is nothing short of Pandoras Box and personally ATF let it get out of hand, now they are trying to figure it how to regain control.

 

Personally, had SB Tactical not gotten greedy/stupid and made their SBA3 us a non standard AR buffer tube (mil spec or commerical) they could have avoided a lot of this. But they were greedy/stupid and used tubes on the market so now all someone has to do is pull off their brace and put on a stock....constructive intent was never any easier to prove.

[DZelenka]

The 4M number is something I have heard thrown around also. Because there is an estimate of only 20M "assault weapons" in circulation, I have a hard time believing both numbers to be accurate. I sincerely doubt that 20% of the "assault weapons" are "pistols" with "braces". Either the estimated numbers of assault weapons is low or the estimated number of braced pistols is high. Personally, I think the former is more likely.

 

You are correct that ATF allowed this to get out of control. If these firearms need to be registered, how long do you think machinegun transfers will take during that time period? Glad to have an SOT.

 

Dan

[StrangeRanger]

If they are going to run 4 million Form 1s for "new" SBRs through the system it might force Congress to upgrade ATF's computer systems so they can interface directly with the FBI and NICS systems. Biden's push to run all transfers through NICS will almost certainly happen, there is too much public support for it not to. That will require an upgrade of NICS and ATF could easily be included in the same funding package. There will be a massive clusterf**k during the transition but the end result may work to our advantage

[StrangeRanger]

ATF HAS WITHDRAWN THE NOTICE

 

https://www.atf.gov/firearms/docs/general-notice/sb-criteria-withdrawal-notice-12-23-20pdf/download

[johnsonlmg41]

I think it's easier for them to defer to the original rules that if you put anything like this up to your shoulder you're violating the NFA and leave it at that. They really can't regulate how you configure a pistol or what you hang on it but they can regulate usage to some degree? Guys will get picked off one by one instead of causing mass hysteria? When you put up a speed limit sign, not everyone gets ticketed for speeding, but everyone knows it may happen and that they've been informed. Course the flip side could be potential Pres. harris is going to ban or register all of these types of firearms anyhow, so the stock becomes a moot point in the near future? The only thing we know about her is that Pocahontas refers to her as very liberal.