ATF's New Brace Rule Takes Effect TODAY
*** What You Should Know ***
Today 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. Published more than 18 months after the Notice of Proposed Rulemaking (86 FR 30826 (Jun. 10, 2021), the Factoring Criteria for Firearms with Attached "Stabilizing Braces" is effective immediately and requires registration of any weapons with stabilizing braces or similar attachments that constitute rifles under the National Firearms Act ("NFA") no later than May 31, 2023. The Final Rule includes a variety of alternative compliance measures, which we explain in more detail below.
I. Revised Definition of "Rifle"
According to ATF, the Final Rule does not create new law; rather it clarifies the definition of Rifle in the regulations in 27 C.F.R. Parts 478 and 479. With this Final Rule, ATF explains that it is not regulating the manufacture, sale, or possession of “stabilizing braces” themselves (when braces are not attached to or associated with particular weapons), but persons in possession of firearms equipped with stabilizing braces will have to take certain action by May 31, 2023 to not be in violation of the NFA if the firearm plus stabilizing brace constitutes a short barrel rifle or shotgun.
The Final Rule amends the definitions of "rifle" in ATF's regulations at 27 C.F.R. §§ 478.11 and 479.11 by adding the factors ATF will consider when determining whether a firearm is designed, made, or intended to be fired from the shoulder when equipped with an accessory, component, or other rearward attachment such as a stabilizing brace. The added text to the respective definitions 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! As of today (January 31, 2023), all prior classifications of firearms equipped with a brace device are no longer valid. ATF is rescinding these classifications because they did not employ the "correct understanding" of the statutory terms. Firearms equipped with stabilizing braces or other rearward attachments may be submitted to ATF for a new classification determination, but 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, 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
The Final Rule is estimated to impact millions, from unlicensed individual possessors to federally licensed industry members and even certain government and law enforcement entities. Because of the enormous impact, the Final Rule specifies a "compliance period" during which affected parties may choose from a variety of options to come into compliance with the NFA. Affected parties are those currently in possession of firearms now classified as NFA-controlled short barrel firearms because of the stabilizing brace + barrel under 16 inches. These persons will have until May 31, 2023 to come into compliance with the NFA.
It is important to emphasize that the following corrective options apply only to firearms equipped with stabilizing braces in possession as of today. Because the Final Rule takes effect today, ATF will enforce the NFA registration and tax requirements for any newly made or transferred firearm with an attached stabilizing brace that constitutes an SBR. Further, as of today, only registered firearms with stabilizing braces may be transferred.
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 through the eForms system by May 31, 2023 a Form 1 Application to Make and Register a Firearm (‘‘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 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.
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 currently in inventory, 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.
E. Certain Government Entities
Submit through eForms by May 31, 2023 either an E-Form 1 or an E-Form 10 Application for Registration of Firearms Acquired by Certain Governmental Entities ("E-Form 10"). The government entity may adopt the markings on the firearm for purposes of the E-Form 10 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 government entity must mark the firearm as required. Further, any subsequent transfer of a firearm registered on an E-Form 10 is restricted to other governmental entities for official use. Proof of submission of the E-Form 10 should be maintained by all possessors.
IV. Tax Forbearance
As indicated above, ATF is forbearing NFA taxes on persons in current possession of firearms equipped with stabilizing braces that are SBRs. 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.
V. ATF Resources
For questions regarding the application of the final rule, contact the Firearms Industry Programs Branch at Firearms Industry Programs Branch: [email protected].
For technical questions regarding firearms, contact the Firearms and Ammunition Technology Division at: [email protected].
