Pistol Brace Registration 120 days from January 31

[Rekraps]

Okay, so here we are, May 31st. 

Make wise decisions my friends!

[APEXgunparts]

News from Reeves & Dola, LLP

DEADLINE
ATF's Pistol Brace "Compliance Period" Ending May 31, 2023

Readers will recall back in January when the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") published Final Rule 2021R-08F (the “Final Rule”) amending its regulations to clarify when a rifle is designed, made, and intended to be fired from the shoulder. As we explained in our January 31, 2023 alert, the compliance period is due to close TOMORROW, May 31, 2023. This rule impacts pistols equipped with certain stabilizing braces by amending the definition of "rifle" in ATF's regulations so that if the stabilizing brace meets certain criteria, the firearm may be subject to the National Firearms Act (NFA) controls as a short barrel rifle.

I. Recap of the Final Rule

The added text to the definitions of rifle in 27 C.F.R. 478.11 and 479.11 reads as follows:

(1) For purposes of this definition, the term ‘‘designed or redesigned, made or remade, and intended to be fired from the shoulder’’ 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 paragraph (2), indicate that the weapon is designed, made, and intended to be fired from the shoulder.

(2) When a weapon provides surface area that allows the weapon to be fired from the shoulder, the following factors shall also be considered in determining whether the weapon is designed, made, and intended to be fired from the shoulder:

(i)   Whether the weapon has a weight or length consistent with the weight or length of similarly designed rifles;
(ii)  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;
(iii) 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;
(iv) 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;

(v) The manufacturer’s direct and indirect marketing and promotional materials indicating the intended use of the weapon; and (vi) Information demonstrating the likely use of the weapon in the general community.

II. Implications on Prior Classifications

CAUTION! On January 31, 2023, ATF revoked all prior ATF classifications of firearms equipped with a brace device. This means that no one may rely on a classification issued prior to January 31, 2023. While a classification request may be resubmitted to ATF, the agency cautions that a majority of the existing firearms equipped with a stabilizing brace will likely be classified as “rifles” "because they are configured for shoulder fire based on the factors described in the Final 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." See Final Rule at p. 6480.

ATF does not have a list of specific braces that qualify as making a pistol into a short-barreled rifle ("SBR"), explaining that it does not regulate accessories such as stabilizing braces by themselves. However, ATF does provide examples of commercially available firearms and common weapon platforms equipped with a stabilizing brace that are short-barreled rifles.

III. Options for Affected Parties

Beginning on January 31, 2023, parties who were already in possession of firearms now classified as NFA-controlled short barrel firearms because of the stabilizing brace have until tomorrow, May 31, 2023, to come into compliance with the NFA. There are several options to achieve compliance:

A. Options Available to All Possessors

Remove the short barrel and attach a 16-inch or longer rifled barrel to the firearm, thus removing it from the scope of the NFA.
Permanently remove and dispose of, or alter, the ‘‘stabilizing brace’’ such that it cannot be reattached. This action, as long as it is completed by May 31, 2023, will remove the weapon from regulation as a ‘‘firearm’’ under the NFA. According to ATF, making this change after May 31, 2023 will not remove the weapon from the NFA as it may be controlled as a ‘‘weapon made from a rifle.’’
Turn the firearm into a local ATF office.
Destroy the firearm. ATF will publish information regarding proper destruction on its website.
Register the weapon as specified for the particular category of possessor.

B. Registration Option for Non-Licensee Possessors

Submit by May 31, 2023 through the eForms system a Form 1 Application to Make and Register a Firearm (‘‘E-Form 1’’) for each affected firearm in the applicant's possession. The possessor may adopt the markings on the firearm for purposes of the E-Form 1 if the firearm is marked in accordance with 27 CFR 478.92 and 479.102. If the firearm does not have the markings under 27 CFR 478.92 and 479.102, then the individual must mark the firearm as required. Proof of submission of the E- Form 1 should be maintained by all possessors. These registrations will NOT be required to pay the $200 making tax as long as the E-Form 1 is submitted by May 31, 2023. It is important to emphasize that the firearm is not registered as an SBR until the applicant receives an approved Form 1. Once the firearm is registered as an SBR, the registrant may change out the brace device or stock for a different brace or stock. No notification to ATF is necessary in these cases because changing the the brace or stock does not change the configuration of the firearm. If the length of the firearm changes, the registrant must notify the NFA Division.

C. Registration Option for Federal Firearms Licensed ("FFL") Manufacturers or Importers and Qualified as Special (Occupational) Taxpayer ("SOT") Class 1 Importer or Class 2 Manufacturer

For all affected firearms in the FFL's inventory as of January 31, 2023, submit through the eForms system by May 31, 2023 a Form 2 Notice of Firearms Manufactured or Imported ("E-Form 2").

D. Registration Option for FFLs Not Having Paid SOT as a Class 1 Importer or Class 2 Manufacturer Under the NFA (Including FFL/SOT Dealers)

Submit through eForms by May 31, 2023 an E-Form 1 for each affected firearm. The possessor may adopt the markings on the firearm for purposes of the E-Form 1 if the firearm is marked in accordance with 27 CFR 478.92 and 479.102. If the firearm does not have the markings under 27 CFR 478.92 and 479.102, then the FFL must mark the firearm as required. Proof of submission of the E-Form 1 should be maintained by all possessors.

It is important to note that any FFL without a Class 2 SOT that is engaged in the business of manufacturing short-barreled rifles equipped with a ‘‘stabilizing brace’’ device should become a Class 2 SOT if they will continue to engage in the business of dealing and manufacturing NFA firearms. Once they obtain their SOT under 26 U.S.C. 5801, they must register their NFA firearms with ATF by completing and submitting the E-Form 2 by May 31, 2023.

As indicated above, ATF is forbearing NFA taxes on persons who were in possession of firearms equipped with stabilizing braces that are SBRs on January 31, 2023. However, this forbearance applies only to new registrations submitted by May 31, 2023. All transfers will be subject to the NFA tax requirements of the NFA in 26 U.S.C. 5811.

IV. Effects of Litigation

Several cases challenging the brace rule are currently pending. All but one are in the preliminary motions phase and likely will not impact the end of the compliance period. However, there is one case in which the plaintiffs have been able to obtain a limited injunction against ATF's enforcement of the Final Rule. In Mock v. Garland, filed in the Northern District of Texas (Case No. 4:23-cv-00095-O), the district court denied the plaintiffs' motion for an injunction on March 30, 2023. The plaintiffs have appealed to the Fifth Circuit (Case No. 0:23-usc-10319), and while that appeal is pending (oral argument is scheduled for June 29, 2023), the Court has ordered a Preliminary Injunction against ATF's enforcement of the Final Rule. However, the injunction is limited to the Plaintiffs in the case: Maxim Defense Industries, LLC, Christopher Lewis, William Mock, and the Firearms Policy Coalition, Inc. On Friday, May 26, 2023, the Fifth Circuit issued and Order clarifying that the "Plaintiffs" include the customers and members whose interests Plaintiffs Maxim Defense and Firearms Policy Coalition have represented "since day one of this litigation." The Court also explained that "Plaintiffs" include the individual plaintiffs' resident family members. In issuing this clarification, the Court emphasized that any relief beyond this is denied because it would be tantamount to a nationwide injunction. "The limited purpose of this clarification is to preserve the status quo ante to provide what [defendants] term 'complete relief' to the parties and persons within the reasonable scope of the motion panel's injunction pending appeal." The Court explains in a footnote that "[t]here is no authority in the motion panel's order to extend the injunction to an infinite number of non-parties to this case on the theory that, for full relief to be afforded to the plaintiffs, the plaintiffs must be permitted to sell products to an undefined set of downstream purchasers."

V. ATF Resources

For more information on the brace rule, please visit ATF's website, which includes a variety or resources to aid the public in interpreting and operating under the Final Rule. These resources include: (1) the PowerPoint presentation given during SHOT Show; (2) NFA Form 1 submission guidance with Q&A; (3) a chart depicting the affected parties and their options under the Final Rule; and (4) a list of Frequently Asked Questions.

For questions regarding the application of the final rule, contact the Firearms Industry Programs Branch at Firearms Industry Programs Branch: FIPB@atf.gov.

For technical questions regarding firearms, contact the Firearms and Ammunition Technology Division at: Fire_Tech@atf.gov.

To register for an eForms account and/or submit an eForm 1 pursuant to ATF Final Rule 2021R-08F, please visit https://eforms.atf.gov/login.

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.

Questions about this alert may be directed to:

Johanna Reeves: 202-715-9941, jreeves@reevesdola.com

About Reeves & Dola
Reeves & Dola is a Washington, DC law firm that specializes in helping clients navigate the highly regulated and complex world of manufacturing, sales and international trade of defense and commercial products. We have a deep understanding of the Federal regulatory process, and use our expertise in working with a variety of Federal agencies to assist our clients with their transactional and regulatory needs.

 

 

Edited May 31, 2023 by APEXgunparts

[Rekraps]

And.... It's over.

 

For Now.

[MGTedFL]

.....and 17 forms later, CLEO's, 34 FP cards, 17 separate Priority Envelopes, and a whole new safe for my soon to be new "SBR's"....I'm betting the thing will be overturned, given the recent GOA success.  Maybe they will wise-up and drop SBR, SBS and silencers from the NFA. I doubt that will happen, but, that will immediately be followed by another Amnesty period for select fire. OK, back to sleep......  

[APEXgunparts]

Changes to the NFA literally require an act of Congress.
In the recent past there was almost success with removing suppressor's from the NFA as there was good support for that change in the US Congress ( it was an act entitled with something about hearing protection ).
At the same time there were groups who tried to tack on the removal of SBR's from the NFA.
There was no support in the US Congress for that.
According to Johanna Reeves (see above) the members of Congress generally regard SBR's as "crime guns" and need to be regulated under NFA.
It doesn't make sense, but it is what it is.

I had hoped the hearing protection act would have passed, but a horrific mass shooting just before the vote put an end to that.

Richard
 

[hkg3k]

On 6/2/2023 at 8:22 AM, MGTedFL said:

.....and 17 forms later, CLEO's, 34 FP cards, 17 separate Priority Envelopes, 

Curious, what was your rationale in splitting up all 17 of your registrations into 17 individual submissions?  I submitted all of my cover letters in a single mailing with a single set of F/P cards.

[MGTedFL]

It may seem over the top to submit 17 envelopes, but here goes my rationale.....

If your cards are not received in 10 days, then the application is cancelled. No second chance, especially since I literally waited until the final week to send mine in. I was hoping that more rational heads, or at least a Federal Judge would intervene and make this go away. As a retired 25+ year veteran of Federal Service....I should have known better.

I had a number of friends have their FP cards go "missing" ....start all over again..... what a PITA.

With over 100+ stamps, over 40 years of collecting....I have seen every possible type of FUBAR, with BATFE.

With each set of cards and control sheet in an individual envelope, each with a tracking number....if anything got FUBAR'd along the way, at most I lose one or two "free" $200 stamps. Not a high price to pay with the stakes so high......$3400 in free stamps.

BTW, our local Sheriff does not have FP scanning, but the cards are free and the ladies working the FP office all know me on a first name basis; and let me schedule back-to-back appointments. The have rolled several hundred cards for me over the years.....

That's my story.....and I'm sticking to it :)

[Rekraps]

3 hours ago, hkg3k said:

Curious, what was your rationale in splitting up all 17 of your registrations into 17 individual submissions?  I submitted all of my cover letters in a single mailing with a single set of F/P cards.

Interesting note, it was my understanding that each Amnesty submission Form 1 was treated separately by the ATF. Are you sure you could submit one set of FP to cover all the requests?

[MGTedFL]

3 hours ago, hkg3k said:

Curious, what was your rationale in splitting up all 17 of your registrations into 17 individual submissions?  I submitted all of my cover letters in a single mailing with a single set of F/P cards.

Just curious. Have you received any approvals yet? 

[hkg3k]

3 hours ago, MGTedFL said:

It may seem over the top to submit 17 envelopes, but here goes my rationale.....

Got it! 😉

51 minutes ago, Rekraps said:

Interesting note, it was my understanding that each Amnesty submission Form 1 was treated separately by the ATF. Are you sure you could submit one set of FP to cover all the requests?

Not my understanding.  I have other contacts  who submitted multiples (early in the game) on a single set of F/P cards...and have already received multiple approvals on that submission.  I also know others who've submitted multiples (later) but haven't received any approvals...yet.  Having said that, I don't know anyone who sent 17 submissions on a single set of cards.  We'll see how it goes and I'll post here...problems or not.

29 minutes ago, MGTedFL said:

Just curious. Have you received any approvals yet? 

No word on my submission, but then I just completed my Form 1s this past Monday and dropped it in the mail the same day.

[MGTedFL]

Personally, since three separate courts have ruled in favor of plaintiff with injunction, and one has put the case up for expedited review..... IMO, changes to the current status-quo are coming.  Just look at what SCOTUS recently did in the EPA ruling.....

WGL has reported the 250K registrations have been received.....compare that to the estimated 20-30 million braced pistols out there among the populus.....

Keep your fingers crossed. Maybe a actual win for the good guys, for a change?

[APEXgunparts]

8 hours ago, MGTedFL said:

Personally, since three separate courts have ruled in favor of plaintiff with injunction, and one has put the case up for expedited review..... IMO, changes to the current status-quo are coming.  Just look at what SCOTUS recently did in the EPA ruling.....

WGL has reported the 250K registrations have been received.....compare that to the estimated 20-30 million braced pistols out there among the populus.....

Keep your fingers crossed. Maybe a actual win for the good guys, for a change?

Copied from above.......... info from Reeves-Dola a company that handles firearms law.

IV. Effects of Litigation

Several cases challenging the brace rule are currently pending. All but one are in the preliminary motions phase and likely will not impact the end of the compliance period. However, there is one case in which the plaintiffs have been able to obtain a limited injunction against ATF's enforcement of the Final Rule. In Mock v. Garland, filed in the Northern District of Texas (Case No. 4:23-cv-00095-O), the district court denied the plaintiffs' motion for an injunction on March 30, 2023. The plaintiffs have appealed to the Fifth Circuit (Case No. 0:23-usc-10319), and while that appeal is pending (oral argument is scheduled for June 29, 2023), the Court has ordered a Preliminary Injunction against ATF's enforcement of the Final Rule. However, the injunction is limited to the Plaintiffs in the case: Maxim Defense Industries, LLC, Christopher Lewis, William Mock, and the Firearms Policy Coalition, Inc. On Friday, May 26, 2023, the Fifth Circuit issued and Order clarifying that the "Plaintiffs" include the customers and members whose interests Plaintiffs Maxim Defense and Firearms Policy Coalition have represented "since day one of this litigation." The Court also explained that "Plaintiffs" include the individual plaintiffs' resident family members. In issuing this clarification, the Court emphasized that any relief beyond this is denied because it would be tantamount to a nationwide injunction. "The limited purpose of this clarification is to preserve the status quo ante to provide what [defendants] term 'complete relief' to the parties and persons within the reasonable scope of the motion panel's injunction pending appeal." The Court explains in a footnote that "[t]here is no authority in the motion panel's order to extend the injunction to an infinite number of non-parties to this case on the theory that, for full relief to be afforded to the plaintiffs, the plaintiffs must be permitted to sell products to an undefined set of downstream purchasers."

[Rekraps]

22 hours ago, hkg3k said:

Got it! 😉

Not my understanding.  I have other contacts  who submitted multiples (early in the game) on a single set of F/P cards...and have already received multiple approvals on that submission.  I also know others who've submitted multiples (later) but haven't received any approvals...yet.  Having said that, I don't know anyone who sent 17 submissions on a single set of cards.  We'll see how it goes and I'll post here...problems or not.

No word on my submission, but then I just completed my Form 1s this past Monday and dropped it in the mail the same day.

So, based on your note above (with as of yet no push back from the ATF) here is what I think is going on. Any submission, as long as it included a SN and basic info is going to be approved (kinda like the '68 Amnesty). The reason for this might be similar to the first Amnesty in that the ATF is fully aware of the controversial nature of what they propose and the last thing they need is nitpicking hold up of lot's of submissions by people who mostly have no experience with doing this type of thing. I remember my first Form 1 and it took THREE tries to get the ATF to approve. If they did this with the Pistol Braces then all hell would break loose. 

So as long as they have a SN, then things can be corrected later. That's my take.

[Rekraps]

22 hours ago, MGTedFL said:

Personally, since three separate courts have ruled in favor of plaintiff with injunction, and one has put the case up for expedited review..... IMO, changes to the current status-quo are coming.  Just look at what SCOTUS recently did in the EPA ruling.....

WGL has reported the 250K registrations have been received.....compare that to the estimated 20-30 million braced pistols out there among the populus.....

Keep your fingers crossed. Maybe a actual win for the good guys, for a change?

Great points all. I complied because of all my other NFA stuff that would be at risk. 

[hkg3k]

1 hour ago, Rekraps said:

So, based on your note above (with as of yet no push back from the ATF) here is what I think is going on. Any submission, as long as it included a SN and basic info is going to be approved (kinda like the '68 Amnesty). The reason for this might be similar to the first Amnesty in that the ATF is fully aware of the controversial nature of what they propose and the last thing they need is nitpicking hold up of lot's of submissions by people who mostly have no experience with doing this type of thing. I remember my first Form 1 and it took THREE tries to get the ATF to approve. If they did this with the Pistol Braces then all hell would break loose. 

So as long as they have a SN, then things can be corrected later. That's my take.

Maybe.  But AFAIK, there's never been a prohibition on submitting multiple forms per single set of F/P cards.  I've been doing this since the mid 80's and have submitted multiple forms with a single set of F/P cards many times.  If something's changed regarding this policy, I guess I'll find out shortly...but I just looked and the last time for me submitting multiples on a single set of F/P cards was 2021. 

[Rekraps]

2 hours ago, hkg3k said:

Maybe.  But AFAIK, there's never been a prohibition on submitting multiple forms per single set of F/P cards.  I've been doing this since the mid 80's and have submitted multiple forms with a single set of F/P cards many times.  If something's changed regarding this policy, I guess I'll find out shortly...but I just looked and the last time for me submitting multiples on a single set of F/P cards was 2021. 

I wish I had known 12 submissions ago!

 

Thanks for the info!

[hkg3k]

16 hours ago, Rekraps said:

I wish I had known 12 submissions ago!

Thanks for the info!

Yep 😉  

As an individual, when I've submitted multiples on the same F/P card set, it's always the same form type.  i.e. all Form 4's or all Form 1's...I never mix the two Form types b/c it's always been my understanding that a different examiner will be assigned your Form 1's vs Form 4's for example.  The Form 4's don't have to be the same item...I've submitted multiple Form 4's that included a mix of machine guns and suppressors together.

Another common misconception is that F/P cards have to be <1 year old.  This is also false.  This applies only to the pics that go on the Form as indicated on instruction 2.E.  I've personally submitted F/P cards in the past as which were >8 years old without question.

Anyway, that's my experience...HTH

[MGTedFL]

Hey H, I limit my FP cards to 6 months….but my photo is almost 8 years old. With over 50 stamps using that photo, no issues yet. I think they know I haven’t changed a bit. But then again, the photo is above the neck…and they didn’t ask my wife  FWIW, Ted

[Rekraps]

4 hours ago, MGTedFL said:

Hey H, I limit my FP cards to 6 months….but my photo is almost 8 years old. With over 50 stamps using that photo, no issues yet. I think they know I haven’t changed a bit. But then again, the photo is above the neck…and they didn’t ask my wife  FWIW, Ted

And we all stop aging at this point in our lives!

[MGTedFL]

Guys,

I told ya 'all ..... the vintage photo (scan) is the key. Separate Priority Mail envelopes....probably a waste of funds. But.....I just got back the first of 17 E-F1's, a TBT TMP45, approved in 17 days. E-filed on 5/21. Let's see about the rest......

[hkg3k]

34 minutes ago, MGTedFL said:

Guys,

I told ya 'all ..... the vintage photo (scan) is the key. 

Ha Ha 😂

35 minutes ago, MGTedFL said:

But.....I just got back the first of 17 E-F1's, a TBT TMP45, approved in 17 days. E-filed on 5/21. Let's see about the rest......

Thanks for the heads up!

[Rekraps]

17 hours ago, MGTedFL said:

Guys,

I told ya 'all ..... the vintage photo (scan) is the key. Separate Priority Mail envelopes....probably a waste of funds. But.....I just got back the first of 17 E-F1's, a TBT TMP45, approved in 17 days. E-filed on 5/21. Let's see about the rest......

Interesting. My 12 submissions were all Trust Form 1's (yes, with evidence that the Trust owned the guns prior to 1/31/2023) but not a single one has come back yet.

[Rekraps]

On 6/8/2023 at 8:12 AM, Rekraps said:

Interesting. My 12 submissions were all Trust Form 1's (yes, with evidence that the Trust owned the guns prior to 1/31/2023) but not a single one has come back yet.

Today, I received the first batch of 3 approvals. Interesting that the court injunction did not put this process on hold. Three down, nine to go.

[hkg3k]

14 minutes ago, Rekraps said:

Today, I received the first batch of 3 approvals. Interesting that the court injunction did not put this process on hold. Three down, nine to go.

Excellent!  Thanks for the heads up!

[Rekraps]

18 minutes ago, hkg3k said:

Excellent!  Thanks for the heads up!

And the final nine just came in. I took time to look at the "Conditions" section, which says subject to ATF final rule 2021R-08f and all this is is the defining criteria for pistol braces/SBR. 

So I can announce with confidence that this whole Amnesty thing was not in fact a "trick"  and was handled in much the same way as the '68 Amnesty. In other words, if you complied then the ATF pretty much approved your submission as is. Corrections, if any, that need to be made can be done on the backend. 

So now I can go out and buy real stocks for my guns... which is what I wanted to do.