June 10, 2021
News from Reeves & Dola, LLP
ATF Publishes Notice of Proposed Rulemaking on
Stabilizing Arm Braces

Some of you may still be making your way through the Notice of Proposed Rulemaking (NPRM) that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) published last month regarding firearm frame or receiver (note that we are finalizing our last installment in our 3-part series on that matter and expect to have it out early next week). But in case you are already bored with that agency action of May 21, 2021 (three weeks in Washington may as well be three years), ATF has today come out with another proposed rulemaking, this time to amend its regulations to clarify when a rifle is "intended to be fired from the shoulder" and thus controlled as a short-barreled rifle. The NPRM provides a 90-day window for the public to submit comments.

This proposed rulemaking would amend ATF regulations in 27 C.F.R. Parts 478 and 479 to clarify when firearms with attached "stabilizing braces" would be classified as a short-barreled rifle under the Gun Control Act of 1968 ("GCA") or a "rifle" or "firearm" subject to the National Firearms Act ("NFA"). ATF describes "stabilizing braces" as "devices designed to be attached to large or heavy pistols and...marketed to help a shooter "stabilize" his or her arm to support single-handed firing." See NPRM at 30827. As part of the proposed rule, ATF has created a worksheet titled "Factoring Criteria for Rifled Barrel Weapons with Accessories commonly referred to as ‘Stabilizing Braces,'" which the agency would use to document evaluation of said firearms and the resulting classification. The proposed worksheet is included in the NPRM beginning on page 30830 and should be reviewed carefully. It should be noted that at the top of the draft form is the following warning: "The Bureau of Alcohol, Tobacco, Firearms and Explosives reserves the right to preclude classification as a pistol with a "stabilizing braces" [sic] for any firearm that achieves an apparent qualifying score but is an attempt to make a "short-barreled rifle" and circumvent the GCA or NFA."

To show how the factoring criteria would be applied, the NPRM runs three weapons with common "stabilizing braces" through the worksheet: an AR-type firearm with an SB-Mini accessory, an AR-type firearm with an SBA3 accessory, and an AR-type firearm with a Shockwave Blade accessory. These sample evaluations begin on page 30834.
ATF also proposes a revision to the definition of "rifle" in 27 C.F.R. 478.11 and 479.11 by adding the following sentence at the end of each definition: "The term shall include any weapon with a rifled barrel equipped with an accessory or component purported to assist the shooter stabilize the weapon while shooting with one hand, commonly referred to as a "stabilizing brace," that has objective design features and characteristics that facilitate shoulder fire, as indicated on Factoring Criteria for Rifled Barrel Weapons with Accessories commonly referred to as "Stabilizing Braces," ATF Worksheet 4999, published on [EFFECTIVE DATE OF THE FINAL RULE]."
Proposed options for affected persons (possessors of firearms equipped with a stabilizing brace that would qualify as a "short-barreled rifle") begin on page 30843 and are as follows:

Current unlicensed possessors:

  1. Permanently remove or alter the stabilizing brace such that it cannot be reattached, thus converting the firearm back to its original pistol configuration (as long as it was originally configured without a stock and as a pistol) and thereby removing it from regulation as a “firearm” under the NFA;
  2. Remove the short barrel and attach a 16-inch or longer barrel to the firearm thus removing it from the provisions of the NFA;
  3. Destroy the firearm (ATF will publish information regarding proper destruction on its website, www.atf.gov);
  4. Turn in the firearm to ATF; or
  5. Complete and submit an Application to Make and Register a Firearm, ATF Form 1 (requires a $200 tax payment and markings on the firearm).

Federal firearms licensees not having paid special (occupational) tax (“SOT”) as a Class 2 manufacturer under the NFA:

  1. Same as options 1-4 above; or
  2. Complete and submit an ATF Form 1.

Manufacturers licensed under GCA and qualified under NFA:

  1. Same as options 1-4 above; or
  2. Complete and submit an ATF Form 2, Notice of Firearms Manufactured or Imported.

ATF is seeking public comments to this proposed rule, including proposed Worksheet 4999, for the next 90 days (must be submitted on or before September 8, 2021). ATF is specifically requesting comments to the following questions:

  • How do current owners of stabilizing braces anticipate that they will choose to comply with this rulemaking if it is finalized? Are owners more likely to permanently remove or alter their braces, turn in their firearms with a brace to ATF, or register them with ATF as NFA firearms and pay the associated tax? Would owners be more likely to register their firearms instead of choosing one of the other options if the tax on the registration is forgiven?
  • How do manufacturers anticipate they will comply with this rulemaking, if finalized? Will manufacturers stop making stabilizing braces, alter their stabilizing braces in some manner so they don’t meet the criteria in this rulemaking, or market their braces differently?
  • Has ATF selected the most appropriate criteria for determining whether a stabilizing brace has made a firearm subject to the NFA? Do commenters have additional criteria that should be considered?

All public comments should include the agency name and docket number (ATF 2021R-08) and can be submitted to ATF via the Federal eRulemaking portal at www.regulations.gov, by facsimile transmission to (202) 648-9741, or by regular mail to Denise Brown, Mail Stop 6N-518, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Ave. NE, Washington DC 20226; ATTN: ATF 2021R-08.
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, [email protected]
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.
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