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
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.