Rule2023-01001
Factoring Criteria for Firearms With Attached “Stabilizing Braces”
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Published
January 31, 2023
Effective
January 31, 2023
Issuing agencies
Justice DepartmentAlcohol, Tobacco, Firearms, and Explosives Bureau
Abstract
The Department of Justice ("Department" or "DOJ") is amending the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") to clarify when a rifle is designed, made, and intended to be fired from the shoulder. Specifically, under the Gun Control Act of 1968 ("GCA") and the National Firearms Act of 1934 ("NFA") the definition of "rifle" 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 this preamble and in the amended regulations, indicate that the weapon is designed, made, and intended to be fired from the shoulder.
Full Text
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<title>Federal Register, Volume 88 Issue 20 (Tuesday, January 31, 2023)</title>
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[Federal Register Volume 88, Number 20 (Tuesday, January 31, 2023)]
[Rules and Regulations]
[Pages 6478-6575]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-01001]
[[Page 6477]]
Vol. 88
Tuesday,
No. 20
January 31, 2023
Part III
Department of Justice
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Bureau of Alcohol, Tobacco, Firearms, and Explosives
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27 CFR Parts 478 and 479
Factoring Criteria for Firearms With Attached ``Stabilizing Braces'';
Final Rule
Federal Register / Vol. 88 , No. 20 / Tuesday, January 31, 2023 /
Rules and Regulations
[[Page 6478]]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Parts 478 and 479
[Docket No. ATF 2021R-08F; AG Order No. 5589-2023]
RIN 1140-AA55
Factoring Criteria for Firearms With Attached ``Stabilizing
Braces''
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice (``Department'' or ``DOJ'') is
amending the regulations of the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (``ATF'') to clarify when a rifle is designed, made, and
intended to be fired from the shoulder. Specifically, under the Gun
Control Act of 1968 (``GCA'') and the National Firearms Act of 1934
(``NFA'') the definition of ``rifle'' 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 this preamble and in the amended regulations, indicate
that the weapon is designed, made, and intended to be fired from the
shoulder.
DATES:
Effective date: This rule is effective January 31, 2023.
Compliance Date: Any weapons with ``stabilizing braces'' or similar
attachments that constitute rifles under the NFA must be registered no
later than May 31, 2023.
FOR FURTHER INFORMATION CONTACT: Denise Brown, Office of Regulatory
Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco,
Firearms, and Explosives, U.S. Department of Justice, 99 New York Ave.
NE, Washington, DC 20226; telephone: (202) 648-7070 (this is not a
toll-free number).
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Summary of Regulatory Action
B. Summary of Costs and Benefits
II. Background
A. Authority Under GCA and NFA
B. ``Stabilizing Brace'' Device-Related Classifications
III. Notice of Proposed Rulemaking
A. Definition of ``Rifle''
B. Application of Proposed ATF Worksheet 4999
IV. Analysis of Comments and Department Responses
A. Comments Received in Support
B. Comments Received in Opposition
V. Final Rule
A. Definition of ``Rifle''
B. Options for Affected Persons
C. Discussion of Tax Forbearance
VI. Statutory and Executive Order
A. Executive Orders 12866 and 13563
B. Executive Order 13132
C. Executive Order 12988
D. Regulatory Flexibility Act
E. Small Business Regulatory Enforcement Fairness Act of 1996
F. Congressional Review Act
G. Unfunded Mandates Reform Act
H. Paperwork Reduction Act of 1995
I. Executive Summary
A. Summary of Regulatory Action
This executive summary provides an overview of the relevant
statutory definitions, a brief overview regarding the regulatory
background prompting the issuance of a rule, a description of the
earlier published notice of proposed rulemaking (``NPRM''), a
description of this final rule after consideration of the comments
received on the NPRM, and an overview of options for persons affected
by this rule. Nothing in this rule bans ``stabilizing braces'' or the
use of ``stabilizing braces'' on pistols; however, firearms \1\ with an
attached ``brace'' device may be subject to statutory and regulatory
requirements depending on the firearm's objective design features and
other factors, as discussed in this rule. Furthermore, this rule does
not impose any new legal obligations on owners of ``stabilizing
braces'' at all, as any obligations for these owners result only from
the NFA and the GCA. Instead, this rule merely conveys more clearly to
the public the objective design features and other factors that
indicate a weapon is in fact a firearm or short-barreled rifle under
the relevant statutes.
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\1\ Unless otherwise indicated, the term ``firearm,'' as used in
this rule, means ``any weapon (including a starter gun) which will
or is designed to or may readily be converted to expel a projectile
by the action of an explosive.'' See 18 U.S.C. 921(a)(3)(A).
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The GCA definition of ``firearm'' is broad and includes ``any
weapon (including a starter gun) which will or is designed to, or that
may be readily converted to, expel a projectile by the action of an
explosive.'' 18 U.S.C. 921(a)(3)(A). This definition does not include
an antique firearm. The GCA additionally provides definitions for the
terms ``rifle'' and ``short-barreled rifle.'' 18 U.S.C. 921(a)(7),
(a)(8). A ``rifle'' is defined as ``a weapon designed or redesigned,
made or remade, and intended to be fired from the shoulder and designed
or redesigned and made or remade to use the energy of an explosive to
fire only a single projectile through a rifled bore for each single
pull of the trigger.'' 18 U.S.C. 921(a)(7). A ``short-barreled rifle''
is defined as ``a rifle having one or more barrels less than sixteen
inches in length and any weapon made from a rifle (whether by
alteration, modification, or otherwise) if such weapon, as modified,
has an overall length of less than twenty-six inches.'' 18 U.S.C.
921(a)(8). The GCA imposes specific controls on the interstate
transport of ``short-barreled rifle[s]'' and requires Federal firearms
licensees (``FFLs'') to receive approval from the Attorney General
prior to the sale of a ``short-barreled rifle.'' 18 U.S.C. 922(a)(4),
(b)(4).\2\
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\2\ The GCA, 18 U.S.C. 922(a)(4), makes it unlawful for any
person, other than a licensed importer, licensed manufacturer,
licensed dealer, or licensed collector, to transport in interstate
or foreign commerce any ``short-barreled rifle'' except as
authorized by the Attorney General consistent with public safety and
necessity. Section 922(b)(4) makes it unlawful for any FFL to sell
or deliver a ``short-barreled rifle'' to any person except as
authorized by the Attorney General consistent with public safety and
necessity.
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The GCA also defines the term ``handgun'' as ``(A) a firearm which
has a short stock and is designed to be held and fired by the use of a
single hand; and (B) any combination of parts from which a firearm
described in subparagraph (A) can be assembled.'' 18 U.S.C. 921(a)(30).
A pistol, which is a type of handgun, is defined under 27 CFR 478.11
and 479.11 as a weapon originally designed, made, and intended to fire
a projectile from one or more barrels when held in one hand that has
both a chamber as an integral part of, or permanently aligned with, the
bore and a short stock designed to be gripped by one hand at an angle
to and extending below the line of the bore.
The NFA defines the term ``firearm'' differently and more narrowly
than does the GCA. Under the NFA, the term ``firearm'' includes ``a
rifle having a barrel or barrels of less than 16 inches in length'' and
``a weapon made from a rifle if such weapon as modified has an overall
length of less than 26 inches or a barrel or barrels of less than 16
inches in length'' (also known as ``short-barreled rifle[s]'' as that
term is defined under the GCA). 26 U.S.C. 5845(a)(3)-(4); 18 U.S.C.
921(a)(8). The NFA defines the term ``rifle'' as ``a weapon designed or
redesigned, made or remade, and intended to be fired from the shoulder
and designed or redesigned and made or remade to use the energy of the
explosive in a fixed cartridge to fire only a single projectile through
a rifled bore for each single pull of the trigger, and shall include
any such weapon which may be readily restored to fire a fixed
cartridge.'' 26 U.S.C.
[[Page 6479]]
5845(c). The section of the NFA's definition of ``firearm'' that
includes a ``rifle with a barrel or barrels less than 16 inches in
length'' and a ``weapon made from a rifle'' is nearly identical to the
GCA's definition of ``short-barreled rifle.''
Firearms falling under the purview of the NFA must be registered in
the National Firearms Registration and Transfer Record (``NFRTR'') to a
person \3\ entitled to possess the firearm, 26 U.S.C. 5841; require
approval by the Attorney General before their transfer or making, 26
U.S.C. 5812, 5822; and are subject to transfer and making taxes, 26
U.S.C. 5811, 5821. Additionally, any person engaged in the business of
importing, manufacturing, or dealing NFA firearms must register with
the Attorney General and pay a special (occupational) tax (``SOT''). 26
U.S.C. 5801, 5802. Generally, all ``rifles,'' ``weapon[s] made from a
rifle,'' and ``rifle[s] having a barrel or barrels of less than 16
inches in length'' for purposes of the NFA are also ``firearms'' under
the GCA.
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\3\ The NFA does not define the term ``person;'' however, the
Internal Revenue Code provides that, ``[w]hen used in this title,
where not otherwise distinctly expressed or manifestly incompatible
with the intent thereof . . . [t]he term `person' shall be construed
to mean and include an individual, a trust, estate, partnership,
association, company or corporation.'' 26 U.S.C. 7701(a)(1). NFA
regulations similarly define the term ``person'' at 27 CFR 479.11.
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In 2012, an FFL submitted the first ``stabilizing brace'' (or
``brace'' device) to ATF asking if the addition of their prototype
``brace'' device to a heavy pistol,\4\ such as an AR-15 type pistol,
would change that pistol's classification under Federal firearms
laws.\5\ The submitter described that the ``brace'' device was designed
with the intent to assist people with disabilities so that they could
fire these kinds of heavy pistols safely and comfortably, as they could
be ``difficult to control with the one-handed precision stance.'' \6\
In response to this inquiry, ATF examined the submitted ``stabilizing
brace'' device and found the sample ``provide[d] the shooter with
additional support of a firearm while it is still held and operated
with one hand'' and that the device was not ``designed or intended to
fire a weapon from the shoulder.'' Accordingly, ATF concluded that the
submitted ``brace,'' when attached to a firearm, did ``not convert that
weapon to be fired from the shoulder and would not alter the
classification of a pistol or other firearm,'' and therefore, ``such a
firearm would not be subject to NFA controls.'' \7\
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\4\ For purposes of the rule, ATF generally refers to the type
of firearms that are typically equipped with a ``stabilizing brace''
as heavy pistols based on the manufacturer's stated intent. The use
of the term ``pistol'' in this rule should not be interpreted as an
official classification from ATF that any of these firearms are
``pistols'' under Federal law. The Department recognizes that, under
the final rule titled ``Definition of `Frame or Receiver' and
Identification of Firearms,'' 87 FR 24652 (Apr. 26, 2022), these
firearms incorporate a rifle receiver (e.g., AR-15 receiver).
\5\ Letter for John Spencer, Chief, Firearms Technology Branch,
ATF, from Alex Bosco, NST Global (Nov. 8, 2012).
\6\ Id.
\7\ Letter from ATF #2013-0172 (Nov. 26, 2012) (emphasis
omitted).
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Since then, the variety of available ``stabilizing braces'' or
similar ``brace'' devices and pistols equipped with ``braces'' has
grown significantly. In 2014, ATF began to see ``braces'' being used to
fire weapons from the shoulder and new ``brace'' designs that included
characteristics common to shoulder stocks. ATF's previous
classifications had analyzed whether ``brace'' devices could
effectively be used on the forearm for single-handed firing (as the
manufacturer claimed). Additionally, for a period of time, many of
ATF's classifications did not consider: (1) whether the firearm
equipped with a specific ``brace'' model was designed or redesigned to
be fired from the shoulder based on the objective design features of
the weapon, or (2) how the firearm equipped with the ``brace'' was
being used in the general community. The diversity of ``brace'' devices
yielded a plethora of firearms with an attached ``stabilizing brace''
that possess objective design features indicative of firearms designed,
made, and intended to be fired from the shoulder.\8\ As explained in
this rule, because a majority of these firearms with an attached
``stabilizing brace'' are configured as rifles and have a barrel or
barrels of less than 16 inches in length, they fall under the purview
of the NFA. Therefore, under the statute and regulations, individuals
who attach a ``stabilizing brace'' to a firearm could find themselves
making an NFA firearm without abiding by the registration and taxation
requirements of the NFA.
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\8\ Recoiltv, RECOILtv SHOT Show 2020: Angstadt Arms MDP9,
RECOIL Gun Magazine (Jan. 22, 2020), <a href="https://www.recoilweb.com/recoiltv-shot-show-2020-angstadt-arms-mdp9-156974.html">https://www.recoilweb.com/recoiltv-shot-show-2020-angstadt-arms-mdp9-156974.html</a>; Gun Talk
Media, Brace or No Brace: Springfield's SAINT AR Pistol [bond] Gun
Talk, YouTube (June 16, 2018), <a href="https://www.youtube.com/watch?v=vPAmDoC0vUE">https://www.youtube.com/watch?v=vPAmDoC0vUE</a>; TFB TV, Ruger AR-556 Pistol: The New Budget
Baseline, YouTube (Oct. 18, 2019), <a href="https://www.youtube.com/watch?v=oFqd7JONpDU&t=2s">https://www.youtube.com/watch?v=oFqd7JONpDU&t=2s</a>; PersonalDefenseNet, Shouldering an AR
Pistol with a SIG Brace, YouTube (June 21, 2017), <a href="https://www.youtube.com/watch?v=DvoZxDLa-SM">https://www.youtube.com/watch?v=DvoZxDLa-SM</a>; Military Arms Channel, The NFA
Nut Kicker!, YouTube (Apr. 19, 2017), <a href="https://www.youtube.com/watch?v=eol8fvMfENc">https://www.youtube.com/watch?v=eol8fvMfENc</a>.
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Furthermore, ATF has made clear to makers and manufacturers that
despite their purported intent with respect to the use or design of an
accessory, the requirements of the NFA cannot be circumvented by
attempting to configure a firearm with a purported ``stabilizing
brace'' when the affixed device and configuration of the firearm
includes features inherent in shoulder-fired weapons.\9\ For these
reasons, it is necessary for the Department to amend the regulatory
definition of ``rifle'' to make clear to the public the objective
design features and other factors that must be considered when
determining whether a firearm equipped with an accessory, component, or
other rearward attachment (e.g., a ``stabilizing brace'') is a rifle
designed, made, and intended to be fired from the shoulder. Although
ATF will consider a manufacturer's stated intent as reflected in direct
and indirect marketing materials or other information demonstrating the
likely use of the weapon in the general community in assessing whether
the firearm is or is not designed, made, and intended to be fired from
the shoulder, the objective design features of the weapon may support
or undermine that intent, and the stated intent will not necessarily be
dispositive.
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\9\ See generally ATF Open Letter on the Redesign of
``Stabilizing Braces,'' from Max Kingery, Acting Chief, Firearms
Technology Criminal Branch, Firearms and Ammunition Technology
Division, ATF (Jan. 16, 2015) (``2015 Open Letter''); Letter for
Mark Barnes, Outside Counsel to SB Tactical, LLC from Marvin G.
Richardson, Assistant Director, Enforcement Programs and Services,
ATF, 90000:GM, 5000, Re: Reversal of ATF Open Letter on the Redesign
of ``Stabilizing Braces'' (Mar. 21, 2017); Letter from ATF #309513
(Apr. 11, 2019); Letter from ATF #309921 (May 16, 2019); Letter from
ATF #310678 (June 25, 2019).
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On June 10, 2021, the Department published an NPRM in the Federal
Register titled, ``Factoring Criteria for Firearms With Attached
`Stabilizing Braces','' 86 FR 30826. The NPRM proposed amending ATF's
definitions of ``rifle'' in 27 CFR parts 478 and 479 to expressly state
that the term may include firearms equipped with a ``stabilizing
brace,'' even though such firearms were already implicitly included in
the definition by virtue of the fact that they were designed, made, and
intended to be fired from the shoulder. The proposed amendment
clarified that a firearm equipped with a ``stabilizing brace'' device
falls under the definition of ``rifle'' if the weapon ``has objective
design features and characteristics that facilitate shoulder fire,'' as
indicated on ATF Worksheet 4999, Factoring Criteria for Rifled Barrel
Weapons with Accessories commonly referred to as ``Stabilizing Braces''
[[Page 6480]]
(``Worksheet 4999''). Id. at 30851. The Department published for public
comment the criteria ATF considers when evaluating the objective design
features of firearms equipped with a ``stabilizing brace'' to determine
whether the weapon is a ``rifle'' or ``short-barreled rifle'' under the
GCA and a ``rifle'' or ``firearm,'' (i.e., a short-barreled rifle)
under the NFA. The NPRM also included the proposed Worksheet 4999,
which assigned points to various criteria and provided examples of how
the Worksheet 4999 would be used to evaluate firearms equipped with
certain models of ``stabilizing braces.''
After careful consideration of the comments received regarding the
complexity in understanding the proposed Worksheet 4999 and the
methodology used in the Worksheet to evaluate firearms equipped with a
``brace'' device, this final rule does not adopt some aspects of the
approach proposed in the NPRM, specifically the Worksheet 4999 and its
point system. Instead, based on the comments received, the Department
took the relevant criteria discussed in the NPRM and Worksheet 4999
that indicate when a firearm is designed, made, and intended to be
fired from the shoulder and incorporated them into the rule's revised
definitions of rifle. Because both the GCA and NFA define a ``rifle''
as a weapon ``designed or redesigned, made or remade, and intended to
be fired from the shoulder,'' the Department believes that 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 is a rifle,
provided the other factors described in this preamble and listed in the
final regulatory text indicate the weapon is designed, made, and
intended to be fired from the shoulder.
Accordingly, the Department amends the definition of ``rifle''
under 27 CFR 478.11 and 479.11 to expressly state that the term
``designed or redesigned, made or remade, and intended to be fired from
the shoulder'' includes 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 listed in the amended regulations
and described in this preamble, indicate that the weapon is designed,
made, and intended to be fired from the shoulder. The other factors
are:
(1) Whether the weapon has a weight or length consistent with the
weight or length of similarly designed rifles;
(2) 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;
(3) 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;
(4) 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;
(5) The manufacturer's direct and indirect marketing and
promotional materials indicating the intended use of the weapon; and
(6) Information demonstrating the likely use of the weapon in the
general community.
All of the objective design features and factors listed in the rule
that indicate the weapon is designed, made, and intended to be fired
from the shoulder are derived from the NPRM and proposed Worksheet
4999.
The revised definition in this final rule clarifies, consistent
with the best interpretation of the statutory provision, that firearms
with an attached ``stabilizing brace'' can possess objective design
features that make them ``rifles,'' as that term is defined under the
NFA and GCA. If a firearm with an attached ``stabilizing brace'' meets
the definition of a ``rifle'' based on the factors indicated in this
final rule, then that firearm could also be a short-barreled rifle
depending on the length of the attached barrel, thus subjecting it to
additional requirements under the NFA and GCA. However, a firearm with
an attached ``brace'' device is not a ``rifle'' as defined in the
relevant statutes if the weapon is not designed, made, and intended to
be fired from the shoulder. The rule, as proposed and finalized, does
not ban ``stabilizing braces'' or prohibit firearms with an attached
``stabilizing brace,'' regardless of the firearm's classification.
This revised definition reflects the Department's understanding of
the best interpretation of the statute, and it is immediately
effective. See 5 U.S.C. 553(d)(2). In addition, because prior ATF
classifications of firearms equipped with a ``brace'' device did not
all employ this correct understanding of the statutory terms, all such
prior classifications are no longer valid as of January 31, 2023. While
firearms equipped with ``stabilizing braces'' or other rearward
attachments may be submitted to ATF for a new classification
determination, a majority of the existing firearms equipped with a
``stabilizing brace'' are likely to be classified as ``rifles'' because
they are configured for shoulder fire based on the factors described in
this 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.
Consequently, many parties in possession of weapon and ``brace''
combinations that ATF did not specifically classify in the past as
being subject to the NFA may have been violating the NFA by possessing
an unregistered rifle with a barrel of less than 16 inches. In
addition, where the Department is overruling ATF's previous
classification letters, possessors of the firearms equipped with
``stabilizing braces'' that were at issue in those letters may also be
in possession of unregistered NFA firearms. Prior to the publication of
the NPRM and this rule to clarify the regulatory definition of a rifle,
many parties did not register these firearms due to a variety of
factors discussed in this rule. Therefore, in exercising its
enforcement discretion, the Department provides affected persons
options that they can choose from by May 31, 2023 to comply with the
statutory requirements. For example, possessors of such weapons,
whether an unlicensed individual or an FFL (regardless of SOT status),
may register the firearms to comply with the statutory requirements. As
discussed in section V.B of this preamble, ATF strongly encourages
affected parties to use the eForms system (<a href="https://eforms.atf.gov">https://eforms.atf.gov</a>) to
submit an electronic version of the appropriate NFA forms. Any
penalties for failure to take the necessary action for these existing
firearms to comply with Federal law would result only from conduct
occurring after this time period to take action ends.
Provided the registration form is properly submitted and documented
within the defined time period, the Department will consider
individuals to be in compliance with the statutory requirements between
the date on which a person's application is filed
[[Page 6481]]
and the date a person receives ATF approval or disapproval of the
application. After the 120-day registration period following
publication of this rule, registration of previously made or
manufactured weapons with a ``stabilizing brace'' that constitute NFA
firearms will not be permitted. The Department at that time may take
enforcement action against any person in possession of an affected
firearm that is a short-barreled rifle for which a registration has not
been submitted.
Apart from registration, there are other options that are set out
in section V.B. of this preamble that include modifying affected
weapons to remove them from the definition of a short-barreled rifle,
destroying the firearm, or surrendering the firearm to law enforcement.
Registering the firearm or modifying the configuration of such a
firearm within the defined time period will enable affected persons to
lawfully retain possession of their firearm under Federal law. While
possessors of such weapons will themselves be able to apply the factors
outlined in the amended regulatory text, ATF is publishing information
simultaneously with this rule that will inform the public of both (1)
common weapon platforms with attached ``stabilizing brace'' designs and
(2) examples of commercially available firearms equipped with a
``stabilizing brace'' that are short-barreled rifles. Additionally, an
individual may contact ATF to receive a determination of whether their
firearm equipped with a ``stabilizing brace'' is a rifle as defined by
the GCA and NFA.
The Department has determined that, as a matter of its own
enforcement discretion, it will not, as the NPRM suggested as an
option, require individuals and FFLs without an SOT that timely
register their affected weapons with a ``stabilizing brace,'' which are
in their possession as of the date this rule is published, to pay the
$200 making tax usually due upon submission of such an application to
register. Likewise, Type 7 FFLs (regardless of SOT status) that timely
register the weapons with a ``stabilizing brace'' that qualify as an
NFA firearm and that are still in their inventory--i.e., that have not
been sold or otherwise transferred--will not owe any making tax for
these weapons. Furthermore, the Department has determined that, as a
matter of its own enforcement discretion, it will not seek to collect
retroactive taxes (i.e., $200 making or $200 transfer tax) typically
required for each weapon with a ``stabilizing brace'' that qualifies as
an NFA firearm that was manufactured or transferred at any time prior
to the date of the publication of this final rule. See section V.C.
Notwithstanding the 120-day compliance period, discussed above, the
rule is immediately effective in that the Department may seek to
enforce the NFA's requirements with respect to any new making or new
transfer of a weapon with an attached ``stabilizing brace'' that
constitutes a short-barreled rifle under the NFA. The Department
believes that delaying enforcement of the relevant NFA provisions is
not necessary to allow an equitable opportunity for compliance because
all persons, through publication of this rule, have received notice
that the NFA may in fact apply to their conduct. Further delaying
enforcement also would be inconsistent with public safety. Therefore,
ATF may enforce the NFA against any person or entity that--any time
after the publication date of this rule--newly makes or transfers a
weapon with an attached ``stabilizing brace'' that constitutes a short-
barreled rifle under the NFA. For purposes of the Congressional Review
Act, however, the Department will wait to actually initiate such
enforcement actions for at least 60 days from publication of the rule
in the Federal Register. See 5 U.S.C. 801(a)(3).
B. Summary of Costs and Benefits
In sum, ATF anticipates the cost of the rule is $266.9 million,
annualized and discounted at seven percent. The total costs calculated
for this rule take into account the various options, described above,
that affected parties can choose from to come into compliance with the
statutory requirements. The benefit of this rule is preventing
manufacturers and individuals from violating the requirements of the
NFA and GCA. Congress placed stricter requirements on the making and
possession of short-barreled rifles, deeming them to be dangerous and
unusual weapons and posing a significant danger to the public, as
discussed below. This rule enhances public safety by reducing the
further proliferation and criminal use of firearms with attached
``stabilizing braces.'' Refer to the standalone Final Regulatory Impact
Analysis, available on <a href="http://www.atf.gov">www.atf.gov</a>, for a full discussion of the
potential costs and benefits of the rule.
II. Background
A. Authority Under the GCA and NFA
The Attorney General is responsible for enforcing the GCA, as
amended, and the NFA, as amended,\10\ and Congress has included
provisions in these statutes that authorize the Attorney General to
promulgate regulations as are necessary to enforce the provisions of
the GCA and NFA. See 18 U.S.C. 926(a); 26 U.S.C. 7801(a)(2)(A),
7805(a).\11\ Congress and the Attorney General have delegated the
responsibility for administering and enforcing the GCA and NFA to the
Director of ATF, subject to the direction of the Attorney General and
the Deputy Attorney General. See 26 U.S.C. 7801(a)(2); 28 U.S.C.
599A(b)(1), (c)(1); 28 CFR 0.130(a)(1)-(2); T.D. Order No. 221(2)(a),
(d), Establishment, Organization, and Functions, 37 FR 11696-97 (June
10, 1972). Accordingly, the Department and ATF have promulgated
regulations to implement the GCA and NFA. See 27 CFR parts 478, 479.
---------------------------------------------------------------------------
\10\ NFA provisions still refer to the ``Secretary of the
Treasury.'' See generally 26 U.S.C. ch. 53. However, the Homeland
Security Act of 2002, Public Law 107-296, 116 Stat. 2135,
transferred the functions of ATF from the Department of the Treasury
to the Department of Justice, under the general authority of the
Attorney General. 26 U.S.C. 7801(a)(2); 28 U.S.C. 599A(c)(1). Thus,
for ease of reference, this rule refers to the Attorney General
throughout.
\11\ See also section IV.B.1.a, infra.
---------------------------------------------------------------------------
The ATF Director delegated the authority to classify firearms
pursuant to the GCA and NFA to ATF's Firearms Technology Criminal
Branch (``FTCB'') and the Firearms Technology Industry Services Branch
(``FTISB''). Both FTCB and FTISB fall under the Firearms and Ammunition
Technology Division (``FATD''), Office of Enforcement Programs and
Services.\12\ FATD supports the firearms industry and the general
public by, among other things, responding to technical inquiries and
testing and evaluating firearms voluntarily submitted to ATF for a
determination of a firearm's classification under the GCA or NFA. There
is no requirement that members of the firearms industry or the public
submit firearms to ATF for evaluation of the firearm's classification
under Federal law.\13\
---------------------------------------------------------------------------
\12\ DOJ, Delegation of Authorities Within the Bureau of
Alcohol, Tobacco, Firearms and Explosives, Delegation Order
1100.168C (Nov. 5, 2018).
\13\ The only exception is in cases of a conditional import
under an exception to the general importation restrictions under the
GCA and NFA. See 18 U.S.C. 922(l); 26 U.S.C. 5844; 27 CFR 478.116;
479.113.
\14\ 18 U.S.C. 921(a)(3) (GCA definition of firearm); 26 U.S.C.
5845(a) (NFA definition of firearm).
---------------------------------------------------------------------------
The statutory definitions of ``firearm'' under the GCA and the NFA
are different.\14\ The definition of ``firearm'' under the GCA is broad
and encompasses almost all weapons defined as a ``firearm'' under the
NFA
[[Page 6482]]
because they may expel a projectile by the action of an explosive.
However, when Congress passed the NFA in 1934, it chose to regulate
certain ``gangster-type weapons'' more stringently than other firearms
because they were viewed as especially dangerous and unusual.\15\
Congress chose to define such weapons as ``firearms''; hence, the NFA's
definition of ``firearm'' is narrower than the GCA's definition of
``firearm'' in that it captures only particular types of weapons, for
example, machineguns, short-barreled rifles, and short-barreled
shotguns.
---------------------------------------------------------------------------
\15\ Congress chose to regulate these firearms by taxing them.
Therefore, the NFA is part of the Internal Revenue Code. Courts have
recognized that NFA firearms are dangerous and unusual, and that
possession of unregistered firearms poses a danger to the community.
For a description of the relevant case law, see infra section
IV.A.2.
---------------------------------------------------------------------------
A ``firearm'' under the NFA is subject not only to general GCA
requirements but is further subject to making and transfer taxes and
must be registered with ATF in the NFRTR. See 26 U.S.C. 5811-5812,
5821-5822, 5841, 5845. In addition to the NFA requirements, the GCA
also imposes specific restrictions on the transportation, sale, and
delivery of ``short-barreled rifle[s]'' and ``short-barreled
shotgun[s].'' 18 U.S.C. 922(a)(4), (b)(4). These violations under the
GCA are punishable by up to five years in prison and a fine of up to
$250,000. See 18 U.S.C. 924(a)(1), 3571. Violations of the NFA are
punishable by up to 10 years in prison and a fine of up to $10,000. 26
U.S.C. 5871.
Although it is not mandatory, many FFLs voluntarily submit
classification requests to ATF because FATD's classification of a
particular firearm allows industry members to plan, develop, and
distribute products in compliance with the law. This can reduce their
risk of incurring criminal or civil penalties, or the potential for
costly corrective actions, including a possible recall by the
manufacturer. Classifications provide the submitter a written
determination by ATF of how the laws and regulations apply to their
specific firearm.
When FATD evaluates a submitted firearm sample, it examines the
overall configuration, physical characteristics, other objective design
features that are relevant under the statutory definitions of the NFA
and GCA, and any other information that directly affects the
classification of a particular firearm configuration as presented with
that sample.\16\ The numerous configurations, materials, and designs of
modern firearms require thorough examination and consideration to
ensure an accurate classification. Even though firearms may have a
similar appearance (e.g., shape, size, etc.), an ATF classification of
a voluntarily submitted sample pertains only to the particular sample
as originally configured when submitted because of the vast number of
variations that are possible in respective submissions. See 27 CFR
478.92(c), 479.102(c). Any change in design, materials, or other
features may affect a firearm's classification or have different
implications under the GCA or NFA. In addition, a manufacturer's or
maker's stated intent regarding a particular submission, while
considered by ATF in its evaluation of a weapon, is not dispositive if
the objective design features do not support that stated intent.\17\
---------------------------------------------------------------------------
\16\ For instance, ATF regulations explain with respect to
classifications of frames or receivers that ``the Director may
consider any associated templates, jigs, molds, equipment, tools,
instructions, guides, or marketing materials that are sold,
distributed, or possessed with the item or kit, or otherwise made
available by the seller or distributor of the item or kit to the
purchaser or recipient of the item or kit.'' 27 CFR 478.12(c).
\17\ See Sig Sauer, Inc. v. Brandon, 826 F.3d 598, 601 (1st Cir.
2016) (noting that, in the firearms classification context, it is
appropriate for ATF to consider ``a part's design features . . . as
part of the inquiry into'' the intended use of that part). The court
noted that ``[s]uch an objective approach to ferreting out a party's
intent is a very familiar one in the law. See, e.g., United States
v. Siciliano, 578 F.3d 61, 77 (1st Cir. 2009) (noting that objective
evidence is useful to `buttress or rebut direct testimony as to
intent'); cf. Washington v. Davis, 426 U.S. 229, 253, 96 S. Ct.
2040, 48 L. Ed. 2d 597 (1976) (Stevens, J., concurring) (`Frequently
the most probative evidence of intent will be objective evidence of
what actually happened rather than evidence describing the
subjective state of mind of the actor.'); United States v. Gaw, 817
F.3d 1 (1st Cir. 2016) (`[T]he law is long since settled that the
prosecution may prove its case without direct evidence of a
defendant's guilty knowledge so long as the array of circumstantial
evidence possesses sufficient persuasive power.' (quoting United
States v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994))).'' Id. at 601-
02.
---------------------------------------------------------------------------
B. ``Stabilizing Brace'' Device-Related Classifications
Since 2012, ATF has analyzed how numerous ``brace'' devices affect
a weapon's classification under the NFA and has also classified
numerous firearms equipped with a ``stabilizing brace'' for industry,
the public, and in criminal cases. Results of the classifications were
mixed, but ATF classified the majority of these submissions as NFA
firearms. On November 8, 2012, an FFL submitted the first forearm
``stabilizing brace'' to ATF asking if the addition of their prototype
device to a heavy pistol, such as an AR-type pistol, would change that
type of pistol's classification under Federal firearms laws.\18\ The
submitter described the ``brace'' device as designed to assist people
with disabilities or limited strength or mobility with firing heavy
pistols safely and comfortably, as these weapons can be ``difficult to
control with the one [-] handed precision stance.'' The requester
included the prototype pictures below.
---------------------------------------------------------------------------
\18\ Letter for John Spencer, Chief, Firearms Technology Branch,
ATF, from Alex Bosco, NST Global (Nov. 8, 2012).
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BILLING CODE 4410-FY-P
[[Page 6483]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.015
Based on the information provided, ATF's FATD (then the Firearms
Technology Branch) inspected the ``brace'' device and found that the
particular sample was not ``designed or intended to fire a weapon from
the shoulder.'' \19\ FATD also concluded that, because the submitted
``stabilizing brace,'' when attached to a firearm, did not convert that
weapon to be fired from the shoulder, the attachment of the submitted
``stabilizing brace'' would not alter the classification of a pistol or
other firearm.\20\ This conclusion indicated that an AR-type pistol
with the attached ``stabilizing brace'' would not be subject to the
provisions of the NFA. Later, Sig Sauer marketed a firearm equipped
with a variation of the original ``stabilizing brace'' device, the
SB15, which is pictured below.\21\ The SB15 ``brace'' device is a
product of the original brace manufacturer that was modified from the
original ``stabilizing brace'' submitted to ATF for classification,
discussed above.\22\
---------------------------------------------------------------------------
\19\ Letter from ATF #2013-0172 (Nov. 26, 2012).
\20\ The FATD classification used the term ``convert.'' This is
consistent with the legal inquiry of whether a firearm is
``redesigned'' to be fired from the shoulder. See 18 U.S.C.
921(a)(7); 26 U.S.C. 5845(c).
\21\ These firearms with an attached SB15 ``stabilizing brace
were manufactured and sold by Sig Sauer. See Sig Sauer, Pistols
(July 1, 2014), <a href="https://web.archive.org/web/20140701212719/http://sigsauer.com/CatalogProductDetails/pm400-11-fde-psb.aspx">https://web.archive.org/web/20140701212719/http://sigsauer.com/CatalogProductDetails/pm400-11-fde-psb.aspx</a>.
\22\ SB Tactical, Pistol Stabilizing Brace (Sept. 28, 2014),
<a href="https://web.archive.org/web/20140928204628/http://www.sb-tactical.com/">https://web.archive.org/web/20140928204628/http://www.sb-tactical.com/</a>.
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[[Page 6484]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.016
BILLING CODE 4410-FY-C
After this initial classification, ATF received additional
inquiries specifically on whether the use of a ``stabilizing brace'' as
a shoulder stock redesigns the firearm to be a short-barreled rifle
under the NFA and GCA. In March 2014, ATF responded to an inquiry from
an unlicensed person who asked if firing an AR-type pistol from the
shoulder would cause the pistol to be reclassified as a short-barreled
rifle subject to NFA controls.\23\ In its response, FATD noted that it
classifies firearms based on the ``physical design characteristics,''
and that, while functionality indicates the intended design, it is not
the sole criterion for determining the classification of a weapon.\24\
FATD advised that it does not classify weapons based on how a
particular individual uses a weapon and that merely firing an AR-type
pistol from the shoulder did not reclassify it as a short-barreled
rifle.\25\ FATD further mentioned that some ``brace'' designs, such as
the Sig Stability Brace, had not been classified as a shoulder stock
and that, therefore, using those ``braces'' improperly would not
constitute a design change or change the classification of the
weapon.\26\
---------------------------------------------------------------------------
\23\ Letter from ATF #301737 (Mar. 5, 2014).
\24\ Id.
\25\ Id.
\26\ This and other ATF classification letters before 2018
referred to whether a ``brace'' had been classified as a shoulder
stock. However, the proper inquiry as to whether a weapon is a
``rifle'' under the NFA and the GCA is not whether a particular
component or accessory of the weapon is a stock, but whether the
firearm, as configured, is ``designed or redesigned, made or remade,
and intended to be fired from the shoulder.'' 26 U.S.C. 5845(c). As
this rule explains, ATF later corrected the standard it was applying
by considering whether firearms configured with a ``stabilizing
brace'' were intended to be fired from the shoulder. The focus on
classifying an item as a ``stock'' was one of the issues that led to
inconsistencies in ATF's classification of these firearms.
---------------------------------------------------------------------------
Also in 2014, an individual asked ATF to examine the SB15
``stabilizing brace'' on a firearm commonly known as a ``pistol grip
firearm'' with a smooth bore to verify that the firearm is not
regulated under the NFA. On October 28, 2014, ATF concluded: (1) that a
forward grip (an additional handgrip toward the front of the firearm in
addition to the pistol grip) attached to a pistol redesigns the firearm
to be fired with two hands and therefore the firearm is no longer a
``handgun'' or ``pistol,'' and (2) that it would be classified as ``any
other weapon'' pursuant to 26 U.S.C. 5845(e) under the NFA if its
overall length is less than 26 inches or if it is actually concealed on
the person.\27\ The overall length of the submitted firearm was 27-1/4
inches and therefore ATF determined that, as submitted, the firearm was
subject to regulation under the GCA but was not an NFA firearm,
``provided the SigTac SB15 pistol stabilizing brace is used as
originally designed and NOT used as a shoulder stock.'' \28\ In
essence, ATF's original analysis focused on whether the inclusion of
the forward grip subjected the firearm to the NFA, but ATF did not
consider how the classification would be affected if a ``pistol grip
firearm'' without a forward grip were to incorporate a ``stabilizing
brace.'' Nevertheless, the addition of a ``stabilizing brace'' to these
types of firearms does not assist with one-handed firing but rather
redesigns the firearm by providing surface area for firing from the
shoulder. Therefore, these types of firearms would fall within the
purview of the NFA as short-barreled shotguns. 26 U.S.C. 5845(d).
Because these types of firearms were never designed to be fired from
one hand, this rule, as described in the NPRM, does not apply to
firearms commonly referred to as pistol grip shotguns.\29\ 86 FR at
30828-29. The 2014 classification described above and any
classification that provides that a pistol grip shotgun is not an NFA
firearm is no longer valid or authoritative as of January 31, 2023, and
the firearm should be resubmitted to FATD for evaluation.
---------------------------------------------------------------------------
\27\ Letter from ATF #302492 (Oct. 28, 2014).
\28\ Id. (underlining omitted, capitalization in the original).
\29\ FATD experts state that a ``pistol grip shotgun'' typically
refers to a weapon with the following attributes: (1) overall length
of over 26 inches; (2) 12-gauge, smooth-bore barrel under 18 inches;
(3) utilizes a shotgun-type receiver that has never had a shoulder
stock attached; and (4) fitted with a ``bird's head'' grip in lieu
of a shoulder stock.
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[[Page 6485]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.017
After the SB15 classification, ATF received newly designed
``stabilizing brace'' devices from other companies. One company in 2014
submitted a ``Pistol Overmold Kit'' with a ``foam padded stabilizer
tube'' intended to accommodate a Glock-type pistol and requested a
classification of the firearm to determine if it would be regulated
under the NFA. The company likened its product to installing a receiver
extension/buffer tube on an AR type pistol, a configuration that FATD
had earlier decided was not a shoulder stock when installed on that
type of firearm and did not result in a change of that pistol's
classification. However, FATD concluded that the ``foam padded
stabilizer tube'' served ``no legitimate, functional purpose other than
to extend additional contact surface rearward'' on Glock-type pistols
and therefore would result in the manufacture of a ``short-barreled
rifle.'' \30\
---------------------------------------------------------------------------
\30\ Letter from ATF #302375 (Nov. 10, 2014).
[GRAPHIC] [TIFF OMITTED] TR31JA23.018
In addition, FATD examined a ``Pistol Overmold Kit'' with an
``adjustable stabilizer'' also intended to incorporate a Glock-type
pistol. FATD similarly concluded the ``brace'' device served no purpose
but to extend the rearward surface of the firearm and that the
``brace'' device is not required for the cycle of operations (i.e., to
expel a projectile by the action of an explosive) of Glock-type
pistols.\31\ FATD therefore concluded the installation of the
``adjustable stabilizer'' would result in the manufacture of a short-
barreled rifle regulated under the NFA.\32\
---------------------------------------------------------------------------
\31\ Letter from ATF #302531 (Nov. 13, 2014).
\32\ Id.
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[[Page 6486]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.019
ATF continued to receive new designs of ``stabilizing braces'' from
additional manufacturers. In September 2014, an FFL submitted a ``Blade
AR pistol stabilizer'' device that incorporated a flexible stabilizing
``fin'' to rest against the inside of the shooter's forearm when in the
firing position. According to the FFL, the ``Blade AR pistol
stabilizer'' ``stabilizes the firearm in the horizontal plane,'' and
``[t]he friction created between the user's forearm and the fin then
stabilizes the firearm in the vertical plane.'' \33\ They further
stated that ``a user . . . can wrap a standard sling around the Blade
AR and their forearm and secure it with the thumb of their firing hand
to further stabilize their firearm in both the horizontal and vertical
planes,'' as shown below.\34\
---------------------------------------------------------------------------
\33\ Letter from ATF #302672 (Dec. 15, 2014).
\34\ Id.
\35\ As used in this rule, the term ``accessory'' is intended as
a general term to describe the marketing of items commonly known as
``stabilizing braces.'' Furthermore, use of that term in this rule
does not affect any determinations whether such items are ``defense
articles'' under the Arms Export Control Act (``AECA''). Please
direct all inquiries as to possible liability for the firearms and
ammunition excise tax, 26 U.S.C. 4181-4182, to the Department of the
Treasury, Alcohol and Tobacco Tax and Trade Bureau.
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BILLING CODE 4410-FY-P
[GRAPHIC] [TIFF OMITTED] TR31JA23.020
[[Page 6487]]
Like other submitters, the FFL asked if the addition of this device
would convert a firearm in a manner that would cause it to be
classified as a ``rifle'' and thus a ``firearm'' regulated under the
NFA. In response, ATF stated ``the submitted forearm brace, when
attached to a pistol . . . is not a `firearm' as defined by the NFA
provided the Blade AR Pistol Stabilizer is used as originally designed
[i.e., for additional stabilizing support for single-handed firing] and
NOT used as a shoulder stock.'' \36\
---------------------------------------------------------------------------
\36\ Letter from ATF #302672 (Dec. 15, 2014) (emphasis omitted).
---------------------------------------------------------------------------
Due to inconsistent advice regarding how the use of a ``stabilizing
brace'' device affected a classification, and because FATD continued to
receive questions regarding whether a ``brace'' device could be used
from the shoulder, ATF issued a 2015 Open Letter to the public
regarding the classifications of firearms equipped with these ``brace''
devices under the NFA.\37\ The 2015 Open Letter advised that
``stabilizing braces'' designed to assist shooters with single-handed
firing were not considered a shoulder stock and could be attached to a
handgun without making an NFA firearm. The 2015 Open Letter also
provided that a person who ``intends to use a handgun stabilizing brace
as a shoulder stock on a pistol . . . having a rifled barrel under 16
inches'' is making a firearm subject to the NFA. The 2015 Open Letter
further stated that ``any person who redesigns a stabilizing brace for
use as a shoulder stock makes a[n] NFA firearm when attached to a
pistol with a rifled barrel under 16 inches in length or handgun with a
smooth bore under 18 inches in length.'' \38\
---------------------------------------------------------------------------
\37\ See 2015 Open Letter, supra note 9.
\38\ Id. (emphasis in the original).
---------------------------------------------------------------------------
In 2015, an attorney representing the original developer of the
``stabilizing brace'' asked for a determination on whether the
attachment of a retractable stabilizing brace to a handgun with a
barrel under 16 inches constituted a firearm under the NFA. The
requester provided the diagram below as part of the determination
request.
[GRAPHIC] [TIFF OMITTED] TR31JA23.021
On November 30, 2015, FATD responded by noting that prior devices
``were not configurable to a position or setting in which the device
more closely resembled a buttstock or shoulder stock in form and
function.'' FATD noted that this modified version was not similar to
those prior other devices in which ATF found that the device did not
convert the handgun to an NFA weapon.\39\ FATD stated that ``modifying
the length of that part [of a `stabilizing brace'] serves to extend a
contact surface rearward of the pistol grip,'' which is ``a feature
commonly associated with butt stocks/shoulder stocks'' and shoulder-
fired weapons. FATD advised that the ``Retractable Pistol Stabilizing
Brace'' would likely be classified as a ``device similar in form and
function to a buttstock when installed on a firearm[,] thus
reconfiguring the firearm'' into a short-barreled rifle under the NFA.
FATD further advised that the requester would need to submit a physical
sample in order for ATF to issue a formal classification.\40\
---------------------------------------------------------------------------
\39\ Letter from ATF #303984 (Nov. 30, 2015).
\40\ Id.
---------------------------------------------------------------------------
In 2015, the submitter of the original ``stabilizing brace'' device
requested an evaluation of the physical device installed on a SIG MPX
firearm that could be adjusted forward to accommodate smaller shooters
for a more comfortable fit on the shooter's forearm.
[[Page 6488]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.022
In its evaluation, FATD noted that the raised ridges on the rear of
the submitted sample ``serve no functional purpose in the design of a
pistol brace; however, the ridges [on the back] do provide a non-slip,
gripping surface, a feature commonly associated with buttstocks/
shoulder stocks as well as firearms designed and intended to be fired
from the shoulder.'' \41\
---------------------------------------------------------------------------
\41\ Letter from ATF #304296 (Dec. 22, 2015).
[GRAPHIC] [TIFF OMITTED] TR31JA23.023
FATD determined that this would not be a ``short-barreled rifle,''
provided the ``brace'' device is used as originally designed, not used
as a shoulder stock, and the raised ridges are removed from the rear of
the device. FATD's classification relied on the manufacturer's
continued representation that the design of the ``brace'' was to assist
disabled shooters when firing heavy pistols with one-hand--indeed, the
stated intent was ``[c]entral'' to ATF's conclusion.\42\
---------------------------------------------------------------------------
\42\ Id.
---------------------------------------------------------------------------
On January 21, 2016, FATD classified a Smith and Wesson M&P pistol
equipped with a ``universal pistol brace,'' which was marketed so that
shooters can use the ``brace'' either above or below the forearm for
support and recoil mitigation.\43\
---------------------------------------------------------------------------
\43\ Letter from ATF #303907 (Jan. 21, 2016).
[GRAPHIC] [TIFF OMITTED] TR31JA23.024
[[Page 6489]]
FATD found the ``universal pistol brace'' device useful to reduce
recoil of the host weapon (a Smith and Wesson M&P pistol) when the
shooter places the foam piece of the brace on top of the shooter's
forearm.\44\ However, FATD determined that the device, when assembled
in an alternate configuration, incorporated buttstock design features,
and that a firearm with the ``brace'' device installed in the alternate
configuration depicted above had a length of pull of 14-\1/16\ inches.
This letter defined length of pull as the ``measurement found on
shoulder[-]fired weapons, generally measured from the center of the
trigger to the center of the buttplate/buttstock.'' \45\ FATD reasoned
that the length of pull of shoulder-fired weapons is approximately 13-
\1/2\ to 14-\1/2\ inches. After finding that this configuration
resulted in an overall length of approximately 18-\1/2\ inches and a
barrel length of approximately 4-\1/4\ inches, FATD classified this
firearm as a short-barreled rifle under the NFA.
---------------------------------------------------------------------------
\44\ Id.
\45\ Id.
---------------------------------------------------------------------------
The manufacturer subsequently redesigned the ``universal pistol
brace'' device and resubmitted it to ATF. The second submission of the
device in the alternate configuration now incorporated a length of pull
of 12-\1/8\ inches, as depicted below. This evaluation also found that
the foam portion of the ``forearm brace'' did not provide a surface
area found on a shoulder stock assembly when attached to a pistol. FATD
concluded that the device, when attached to a pistol-type firearm, did
not design or redesign the host weapon to be fired from the
shoulder.\46\
---------------------------------------------------------------------------
\46\ Letter from ATF #304484 (June 7, 2016).
[GRAPHIC] [TIFF OMITTED] TR31JA23.025
In 2016, another ``brace'' design reviewed by FATD was one that
incorporated a folding clamp intended to provide support to the firing
hand and designed to be attached to an AR-type buffer tube or similar
receiver extension. This type of device is referred to as a
counterbalance type ``stabilizing brace'' as discussed in section
IV.B.3.b.viii of this preamble.
[[Page 6490]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.026
FATD found that this device, when assembled on an AR-type firearm,
allows the shooter to extend the clamp so it is under the shooter's
forearm while gripping the pistol grip for additional support. This
``stabilizing brace'' device did not design or redesign the firearm to
be fired from the shoulder, and thus was not a ``short-barreled rifle''
under the NFA and GCA. But ATF noted that, if the firearm is fired from
the shoulder, then the shooter designs or redesigns the firearm to be a
rifle.\47\ Subsequently, the same company added a retractability
feature to the ``stabilizing brace'' that allowed it to extend toward
the shooter.\48\ On January 18, 2017, FATD determined that a pistol
equipped with the adjustable feature would still not be subject to NFA
controls.\49\
---------------------------------------------------------------------------
\47\ Letter from ATF #304679 (Oct. 3, 2016).
\48\ Although ATF had opined earlier that retractability was a
feature commonly associated with shoulder stocks, see Letter from
ATF #303984 (Nov. 30, 2015), ATF subsequently opined that a
``stabilizing brace'' could be adjustable, see Letter from ATF
#304296 (Dec. 22, 2015).
\49\ Letter from ATF # 304511 (Jan. 18, 2017). ATF also issued a
clarifying letter to the same company on January 30, 2017, regarding
length of pull. Specifically, FATD defined ``length of pull'' as ``a
measurement found on shoulder-fired weapons, generally measured from
the center of the trigger to the center of the buttplate/
buttstock.'' FATD research determined the average length of pull for
a shoulder-fired weapon is approximately 13-\1/2\-14-\1/2\ inches
and the installation of a stabilizing brace to a pistol resulting in
a similar length of pull would be characteristic of a shoulder-fired
weapon. Letter from ATF #304679A (Jan. 30, 2017).
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[[Page 6491]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.027
[GRAPHIC] [TIFF OMITTED] TR31JA23.028
BILLING CODE 4110-FY-C
As discussed above in this preamble, ATF stated in prior letters
and in the 2015 Open Letter that using a ``stabilizing brace'' device
as a shoulder stock would redesign a pistol with a barrel less than 16
inches to a short-barreled rifle subject to the provisions of the NFA.
On January 5, 2017, counsel to SB Tactical, LLC, submitted to ATF a
request to reverse the 2015 Open Letter, arguing that determinations
based on the use of a ``stabilizing brace'' device created ambiguity
because the way the item is used does not alter the design. On March
21, 2017, ATF responded by letter that: ``Although we stand by those
conclusions [of the 2015 Open Letter], we agree the Open Letter may
have generated some confusion concerning the analytical framework by
which those conclusions were reached.'' \50\ ATF affirmatively
concluded that incidental shouldering does not constitute a redesign of
the firearm to be fired from the shoulder. The 2017 response letter
also clarified:
---------------------------------------------------------------------------
\50\ See Letter for Mark Barnes, Outside Counsel to SB Tactical,
LLC, from Marvin G. Richardson, Assistant Director, Enforcement
Programs and Services, ATF 90000:GM, 5000, Re: Reversal of ATF Open
Letter on the Redesign of Stabilizing Braces (Mar. 21, 2017)
(italics omitted) (made widely available to the public on various
websites, for example, <a href="https://vpc.org/wp-content/uploads/2019/08/Pistol-brace-ATF-letter-March-21-2017.pdf">https://vpc.org/wp-content/uploads/2019/08/Pistol-brace-ATF-letter-March-21-2017.pdf</a> and <a href="https://www.thefirearmblog.com/blog/2017/04/24/breaking-news-update-atf-reversal-letter-sb-tactical/">https://www.thefirearmblog.com/blog/2017/04/24/breaking-news-update-atf-reversal-letter-sb-tactical/</a>).
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[[Page 6492]]
[When] the shooter/possessor takes affirmative steps to
configure the device for use as a shoulder-stock--for example,
configuring the brace so as to permanently affix it to the end of a
buffer tube, (thereby creating a length that has no other purpose
than to facilitate its use as a stock), removing the arm-strap, or
otherwise undermining its ability to be used as a brace--and then in
fact shoots the firearm from the shoulder using the accessory as a
shoulder stock, that person has objectively ``redesigned'' the
firearm for purposes of the NFA. This conclusion is not based upon
the mere fact that the firearm was fired from the shoulder at some
point. Therefore, an NFA firearm has not necessarily been made when
the device is not re-configured for use as a shoulder stock--even if
the attached firearm happens to be fired from the shoulder.\51\
---------------------------------------------------------------------------
\51\ Id.
After this letter, ATF reviewed the ``Blade Pistol Stabilizer
2.0,'' a new device redesigned after the first ``Blade Pistol
Stabilizer.'' This new model included one attachment point for a strap
or sling (as opposed to the first version's three attachment points)
and a metal carbine buffer tube adjustment lever that enabled the
operator to move the blade into four positions along the buffer tube.
FATD reviewed both the initial Blade stabilizer and the Blade Pistol
Stabilizer 2.0 without the sling or strap. For this submission, FATD
examined the ``length of pull'' of the firearm and determined the
maximum length of pull on an AR-type receiver with the ``Blade Pistol
Stabilizer 2.0'' attached is 13-\3/16\ inches, which was just below the
average length of pull for shoulder-fired weapons of 13-\1/2\ to 14-\1/
2\ inches. In a letter dated October 31, 2017, FATD concluded that the
attachment of the ``blade pistol stabilizer'' to an AR-type firearm
alone does not make an NFA weapon.\52\ The letter noted that this
classification letter applied only to the ``Blade Pistol Stabilizer
2.0,'' as submitted, and that any alternations to the device's design
could change this classification.\53\
---------------------------------------------------------------------------
\52\ Letter from ATF #307364 (Oct. 31, 2017).
\53\ Id.
---------------------------------------------------------------------------
By July 2018, FATD observed that SB Tactical had been marketing
many of its ``braces'' as ``ATF compliant'' and with the following
blanket statement: ``The Bureau of Alcohol, Tobacco, Firearms and
Explosives has stated that the SB Tactical<SUP>TM</SUP> Pistol
Stabilizing Brace is `legal to own, legal to purchase and legal to
install on a pistol.' BATFE has consistently stated that a pistol with
a Pistol Stabilizing Brace attached remains a pistol under the Gun
Control Act when used as designed.'' \54\
---------------------------------------------------------------------------
\54\ SB Tactical, Pistol Stabilizing Braces (Dec. 30, 2018),
<a href="https://web.archive.org/web/20181230110445/https://www.sb-tactical.com/product-category/brace/">https://web.archive.org/web/20181230110445/https://www.sb-tactical.com/product-category/brace/</a>.
---------------------------------------------------------------------------
On July 18, 2018, FATD notified SB Tactical that it had only
evaluated 2 out of approximately 20 of their manufactured ``stabilizing
brace'' models and concluded that only 2 submitted samples had not been
``designed or intended to be used as shouldering devices'' such that
attachment to a pistol did not convert that firearm to a short-barreled
rifle. FATD also noted that any change in the submitted design could
change its classification. Many of the other models sold by SB
Tactical, which FATD had not evaluated, had been advertised as being
based on shoulder stock designs. ATF's letter specifically stated that
``FTISB does not approve `stabilizing braces' which are similar or
based off shoulder stock designs.'' \55\ The letter requested the
manufacturer to cease false advertisement of products as ``ATF
approved,'' as a majority of them had not been evaluated by ATF, much
less ``approved.'' \56\
---------------------------------------------------------------------------
\55\ Letter from ATF #308999 (July 18, 2018) (emphasis omitted).
\56\ Id.
---------------------------------------------------------------------------
Moreover, toward the end of 2018, ATF recognized and informed
requestors of classifications that, to effectively evaluate how an
accessory affects the classification of a firearm under Federal law,
FATD needed to examine the overall configuration of a firearm with the
accessory (including purported ``stabilizing brace'') installed. ATF
informed requestors that, except in cases of conditional import
determinations, it would not issue a determination on an accessory
alone unless it was attached to the submitted firearm.\57\
---------------------------------------------------------------------------
\57\ See, e.g., Letter from ATF #304547 (Dec. 17, 2018); Letter
from ATF #304678 (Dec. 17, 2018); Letter from ATF #307644 (Dec. 17,
2018); Letter from ATF #308208 (Dec. 17, 2018); Letter from ATF
#309044 (Dec. 17, 2018); Letter from ATF #309140 (Dec. 17, 2018);
Letter from ATF #309515 (Dec. 17, 2018); Letter from ATF #309583
(Dec. 17, 2018); Letter from ATF #309742 (Dec. 17, 2018); Letter
from ATF #309751 (Dec. 17, 2018); Letter from ATF #308318 (Dec. 17,
2018); Letter from ATF #309516 (Jan. 31, 2019); Letter from ATF
#309807 (Feb. 1, 2019); Letter from ATF #304747 (Feb. 12, 2019);
Letter from ATF #309861 (Feb. 12, 2019).
---------------------------------------------------------------------------
On March 3, 2020, FATD examined two firearms, each equipped with a
different ``stabilizing brace'' model (SBL Mini and SBA3), for one
requestor.\58\ The first firearm equipped with an SBL Mini ``brace''
device was determined to be a pistol based on all the objective design
features, including the design of the attached brace that wrapped
almost completely around the shooter's forearm, the rear surface area
of the device, and the firearm's shorter length of pull when compared
against typical AR-type shoulder-fired weapons.\59\
---------------------------------------------------------------------------
\58\ Letter from ATF #311123 (Mar. 3, 2020); Letter from ATF
#311127 (Mar. 3, 2020).
\59\ Letter from ATF #311123 (Mar. 3, 2020). Both
classifications provided:
This letter is not a final classification letter and does not
constitute final agency action. However, it represents our current
analysis based on the information we have, and we offer this letter
for your review in advance of issuing a final classification letter.
If you have additional information you want to submit to ATF before
it issues its final classification, you may send the information in
writing within 10 days from the date of this letter. You may also,
within the 10 day period, request an in-person meeting to present
this additional information provided the meeting takes place within
10 days of the request. Please submit written comments or a request
for an in-person meeting via email to <a href="/cdn-cgi/l/email-protection#9afcf3e8ffc5eefff9f2dafbeefcb4fdf5ec"><span class="__cf_email__" data-cfemail="096f607b6c567d6c6a6149687d6f276e667f">[email protected]</span></a>. If
additional information is received, it will be included in the
analysis when the final classification is sent to you.
Letter from ATF #311123 (Mar. 3, 2020); Letter from ATF #311127
(Mar. 3, 2020).
[GRAPHIC] [TIFF OMITTED] TR31JA23.029
[[Page 6493]]
The second firearm equipped with an SBA3 ``brace'' device was
determined to be a short-barreled rifle. FATD reviewed all the
objective design features of the submitted firearm, including the
similarity of the SBA3 to known shoulder stocks in form and function,
the rear hardened surface area of the SBA3, the utilization of a
standard AR-type Mil-Spec carbine receiver extension, and a ``length of
pull'' useful for shouldering the firearm. FATD concluded that all
these factors ``combine to provide objective design features consistent
with weapons designed and intended to be fired from the shoulder.''
\60\
---------------------------------------------------------------------------
\60\ Letter from ATF #311127 (Mar. 3, 2020).
[GRAPHIC] [TIFF OMITTED] TR31JA23.030
In June 2020, ATF classified another firearm equipped with a
``proprietary Pistol Stabilizing Brace'' that incorporated guide rails
that are identical to the same rifle-type firearm the manufacturer sold
as a short-barreled rifle (both of which are pictured below).\61\ The
guide rails permitted the adjustment of the ``stabilizing brace''
further rearward, the attached ``stabilizing brace'' provided a larger
rear surface area compared to the traditional stock on the company's
rifle-type firearm, and it had a length of pull of approximately 13-\9/
16\ inches. Further, the Velcro straps and flaps of the ``brace''
design had been reduced in size from the SB15 ``stabilizing brace'' and
were not long enough to wrap around the shooter's arm.\62\ ATF's
classification concluded that the objective design features of the
accessory did not support the manufacturer's stated intent, but instead
supported the conclusion that the accessory had been designed and
intended to be used as a shouldering device and, therefore, the firearm
with the ``brace'' device attached is designed, made, and intended to
be fired from the shoulder.\63\
---------------------------------------------------------------------------
\61\ Letter from ATF # 314200 (June 15, 2020).
\62\ Id.
\63\ Id.
---------------------------------------------------------------------------
[[Page 6494]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.031
On June 16, 2020, seven members of the House of Representatives
wrote to DOJ and ATF leaders expressing a ``deep[ ] concern[ ]'' about
ATF's ``practice of relying on arbitrary, non-public standards to
promulgate general firearms policy hidden from public scrutiny and
awareness.'' \64\ The congressional letter asked specific questions
regarding the criteria ATF uses to determine whether a firearm is
designed and intended to be fired from the shoulder; specific
publications available for Americans to determine whether their
firearms are designed and intended to be fired from the shoulder; and
how many firearms equipped with stabilizing braces FATD had
examined.\65\
---------------------------------------------------------------------------
\64\ Letter for William Barr, Attorney General, and Regina
Lombardo, Acting Director, ATF, from Matthew Gaetz, United States
Representative, et al. (June 16, 2020), <a href="https://gaetz.house.gov/sites/gaetz.house.gov/files/wysiwyg_uploaded/For%20Web%206-16-2020%20DOJ-ATF%20pistol%20brace%20letter%20final.pdf">https://gaetz.house.gov/sites/gaetz.house.gov/files/wysiwyg_uploaded/For%20Web%206-16-2020%20DOJ-ATF%20pistol%20brace%20letter%20final.pdf</a>.
\65\ Id.
---------------------------------------------------------------------------
By late 2020, ATF concluded that: (1) previous ATF classification
determinations had led to confusion and there was a need to provide
clarity to the firearm industry and public on how ATF evaluates
firearms equipped with a ``stabilizing brace''; (2) manufacturers were
adding to the confusion by labeling ``stabilizing braces'' that ATF had
not evaluated as ``ATF compliant''; and (3) as discussed in section
IV.B.1.c of this preamble, these ``braces'' were being used with
firearms extensively to create short-barreled rifles without following
NFA requirements. As a result, ATF first published a Notice in the
Federal Register titled, ``Objective Factors for Classifying Weapons
with `Stabilizing Braces' '' on December 18, 2020. 85 FR 82516.
However, the Department withdrew the Notice on December 31, 2020.
Objective Factors for Classifying Weapons With ``Stabilizing Braces'';
Withdrawal of Guidance, 85 FR 86948.
III. Notice of Proposed Rulemaking
On June 10, 2021, the Department published in the Federal Register
an NPRM titled, ``Factoring Criteria for Firearms with Attached
`Stabilizing Braces','' proposing changes to the definition of
``rifle'' in 27 CFR 478.11 and 479.11 to clarify when a firearm with an
attached ``stabilizing brace'' falls under the definition of ``rifle.''
86 FR at 30826. The Department also proposed publishing the factors or
criteria that ATF considers when it evaluates firearms equipped with a
purported ``stabilizing brace.'' The factors discussed in the NPRM
will, under the final rule, continue to help determine whether a weapon
meets the statutory definition of a ``rifle'' or ``short-barreled
rifle'' under the GCA and a ``rifle'' or ``firearm,'' i.e., a short-
barreled rifle, subject to regulation under the NFA. The NPRM included
the factors on a new, proposed worksheet, ``ATF Worksheet 4999,'' that
ATF proposed to rely on when making firearms classifications. That
worksheet proposed assigning points to various criteria as an indicator
of whether the ``brace'' device is suitable for shouldering and whether
the firearm overall is designed and intended to be fired from the
shoulder. The comment period for the NPRM closed on September 8, 2021.
Id. at 30826, 30828-29.
A. Definition of ``Rifle''
The Department proposed amendments to clarify the definition of
``rifle'' by adding at the end of the current definition a sentence
stating that 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.'' Id. at
30851.
In the NPRM, the Department briefly discussed the history of the
first forearm ``brace'' submitted to ATF in 2012, the purpose for which
the ``brace'' was designed as described by the developer, and the
inquiry to ATF on whether the addition of that ``brace'' device to a
pistol, such as an AR-15 type pistol, would convert or alter the
firearm's classification to a ``rifle,'' and thus potentially a
``firearm'' under the NFA. Id. at 30827. As discussed in section II.B
of this preamble, ATF concluded at the time that the addition of that
prototype ``stabilizing brace'' device did not convert that weapon to
be fired from the shoulder and that the weapon with the submitted
``brace'' device was not
[[Page 6495]]
``designed and intended to be fired from the shoulder.''
The NPRM made clear that, after the addition of an accessory or
component that is marketed as a ``stabilizing brace'' to a pistol, the
resulting braced firearm may still be classified as a pistol.
Classifying a firearm based on a limited or single factor (e.g., the
marketing label of the manufacturer that the item is a ``stabilizing
brace'') ``has the potential to be significantly overinclusive or
underinclusive.'' \66\ The NPRM explained the importance of properly
classifying firearms subject to the NFA, given that short-barreled
rifles are among the firearms considered ``unusual and dangerous,'' and
that firearms with ``stabilizing braces'' have been used in at least
two mass shootings, with the shooters in both instances reportedly
using the ``brace'' as a shoulder stock.\67\ These incidents
demonstrated the deadly efficacy of attaching certain types of
``braces'' to pistols to create short-barreled rifles. 86 FR at 30828.
---------------------------------------------------------------------------
\66\ Innovator Enters., Inc. v. Jones, 28 F. Supp. 3d 14, 25
(D.D.C. 2014).
\67\ See, e.g., Cameron Knight, Dayton Shooter Used a Modified
Gun that May have Exploited a Legal Loophole, USA Today (published
Aug. 5, 2019, updated Aug. 6, 2019), <a href="https://www.usatoday.com/story/news/nation/2019/08/05/dayton-shooter-used-gun-may-have-exploited-legal-loophole/1927566001/">https://www.usatoday.com/story/news/nation/2019/08/05/dayton-shooter-used-gun-may-have-exploited-legal-loophole/1927566001/</a> (the firearm used in a shooting killing 9
people and wounding 14 had a ``pistol brace'' used to ``skirt[ ]''
regulation of short-barrel rifles); Melissa Macaya et al., 10 Killed
in Colorado Grocery Store Shooting, CNN (updated Mar. 23, 2021),
<a href="https://www.cnn.com/us/live-news/boulder-colorado-shooting-3-23-21/h_0c662370eefaeff05eac3ef8d5f29e94">https://www.cnn.com/us/live-news/boulder-colorado-shooting-3-23-21/h_0c662370eefaeff05eac3ef8d5f29e94</a> (reporting that the firearm used
in a shooting that killed 10 was an AR-15 pistol with an ``arm
brace'').
---------------------------------------------------------------------------
The NPRM explained that, although ATF generally does not classify
unregulated components or accessories alone under the GCA and NFA,\68\
there are times when the addition of a component or an accessory to a
firearm can affect the firearm's classification. This is because: (1) a
component's or an accessory's likely use in the general community may
be relevant in assessing whether the manufacturer's or maker's
purported intent with respect to the design of a firearm is consistent
with the manufacturer's or maker's actual intent; \69\ and (2) the
design of a component or an accessory may cause a firearm to fall
within a particular statutory definition when attached to the
firearm.\70\ A ``stabilizing brace,'' of which there are several
variations, is one such component or an accessory that may change the
classification of the firearm to which it is attached. Id.
---------------------------------------------------------------------------
\68\ ATF does, however, make these types of classifications
under the AECA, 22 U.S.C. 2778, with respect to the permanent
importation of ``defense articles.'' Additionally, ATF provides
classifications of barrels or ammunition as non-sporting for
importability purposes under the GCA under 18 U.S.C. 922(l) and
925(d). The origin of certain firearms parts and accessories listed
under 27 CFR 478.39 may also be considered by ATF in the enforcement
of 18 U.S.C. 922(l).
\69\ Cf. Posters `N' Things v. United States, 511 U.S. 513, 521-
22 (1994) (Whether an item is ``primarily intended'' for a specified
use is an objective analysis that must focus on the ``likely use''
of that item in the general community, rather than the subjective
intent of a particular person.).
\70\ The NPRM provided examples of where attachment of an
accessory can affect a firearm's classification. These included: the
attachment of a forward secondary grip to a ``pistol'' where the
resulting firearm would no longer be designed to be held and fired
with a single hand, see United States v. Black, 739 F.3d 931, 934-36
(6th Cir. 2014); and a wallet holster where the handgun can be fired
while inserted, thus changing the classification of these handguns
into an ``any other weapon'' under 26 U.S.C. 5845(e), see FFL
Newsletter 5-6 (Aug. 1997), <a href="https://www.atf.gov/firearms/docs/newsletter/federal-firearms-licensees-newsletter-%E2%80%93-august-1997/download">https://www.atf.gov/firearms/docs/newsletter/federal-firearms-licensees-newsletter-%E2%80%93-august-1997/download</a>.
---------------------------------------------------------------------------
The Department reiterated in the NPRM that it has been ATF's
longstanding and public position that a firearm does not evade
classification under the NFA merely because the firearm is configured
with a device marketed as a ``stabilizing brace.'' \71\ When a
purported ``stabilizing brace'' and an attached weapon's objective
design features indicate that the firearm is actually designed and
intended to be fired from the shoulder, such weapon may fall within the
scope of the NFA as a short-barreled rifle, thus requiring registration
and payment of tax. As described in section II.B of this preamble, ATF
has evaluated on a case-by-case basis several models of ``stabilizing
braces'' and has considered whether a particular firearm configured
with a ``stabilizing brace'' has the objective features of a firearm
designed and intended to be fired from the shoulder, thus subjecting it
to the requirements of the NFA and GCA. The use of a ``stabilizing
brace'' cannot be a tool to circumvent the NFA and GCA and the
prohibition on the unregistered possession of short-barreled rifles.
---------------------------------------------------------------------------
\71\ 86 FR at 30828 & n.13.
---------------------------------------------------------------------------
In the NPRM, the Department explained that the objective design
features of a firearm are relevant to determining whether the NFA's
requirements apply, given that the purpose of the NFA is ``to regulate
certain weapons likely to be used for criminal purposes.'' United
States v. Thompson/Center Arms Co., 504 U.S. 505, 517 (1992); see also
id. (``It is of course clear from the face of the Act that the NFA's
object was to regulate certain weapons likely to be used for criminal
purposes, just as the regulation of short-barreled rifles, for example,
addresses a concealable weapon likely to be so used.''). This is the
case even when a manufacturer characterizes or markets a firearm
accessory in a manner that suggests a use that does not correspond to
its objective design. The characterization of an accessory by the
manufacturer, including assertions in advertising, may be relevant, but
is not dispositive. ATF considers the objective design features, the
manufacturer's or maker's intent as reflected in marketing materials,
and other information demonstrating likely use of the firearm in the
general community in deciding whether the weapon is designed and
intended to be fired from the shoulder. Where ATF's evaluation of a
submitted sample demonstrates that the objective design features of the
firearm, as configured, do not support the manufacturer's purported
intent and, in fact, suggest a different intent, then ATF may conclude
that the firearm ought not be classified on the basis of the
manufacturer's purported intent, thus ensuring effective enforcement of
Federal law. See Sig Sauer, Inc. v. Brandon, 826 F.3d 598, 601-02 (1st
Cir. 2016) (objective design features could supersede a manufacturer's
``asserti[on]'' about the ``intended use,'' as a different conclusion
would allow easy circumvention of the NFA); see also 86 FR at 30828.
The Department also explained that, with the increase in production
of rifled-barrel weapons with ``stabilizing braces,'' ATF saw an
increase in the requests for classifications of this kind of firearm
design. As described above, ATF issued several letters examining
``brace'' devices and also particular firearms equipped with
``stabilizing braces'' for industry and in criminal cases. In its
recent determinations, FATD discussed various objective features that
are considered when evaluating whether a firearm that is equipped with
a ``stabilizing brace'' is designed and intended to be fired from the
shoulder. Recognizing the criticism from various parties that ATF had
not widely published a definitive approach in the application of that
criteria, the NPRM proposed a worksheet listing the criteria or factors
that FATD considers when evaluating firearm samples that are submitted
with an attached ``stabilizing brace'' or similar component or
accessory. The worksheet, titled ``Factoring Criteria for Rifled Barrel
Weapons with Accessories commonly referred to as `Stabilizing Braces,'
ATF Worksheet 4999,'' was proposed to allow individuals or members of
the firearms industry to evaluate whether a weapon incorporating a
``stabilizing brace'' that
[[Page 6496]]
they intended to submit to FATD or to offer for sale would be
considered a ``short-barreled rifle'' subject to NFA requirements. The
worksheet assigned points to various criteria, as further described
below.
The NPRM explained that the proposed criteria and worksheet did not
apply to firearms commonly referred to as ``pistol grip shotguns,'' as
they were never designed to be held and fired using one hand (e.g.,
Mossberg Shockwave, Remington Tac-14).\72\ See also 86 FR at 30828-29.
---------------------------------------------------------------------------
\72\ See section II.B of this preamble for discussion on
``pistol grip shotgun'' classification letter.
---------------------------------------------------------------------------
As discussed in section II.B of this preamble, these firearms are
specifically designed to be fired with two hands. ATF has always
classified these weapons as ``firearms'' under the GCA, and not as
``shotguns,'' because they do not incorporate a shoulder stock and are
not designed and intended to be fired from the shoulder like a shotgun.
Nor has ATF classified these weapons as ``pistols,'' as they are not
designed to be held and fired in one hand like a pistol. Thus, the
addition of a ``stabilizing brace'' does not assist with single-handed
firing, but instead provides surface area that allows for firing from
the shoulder. Therefore, a ``pistol grip shotgun'' equipped with a
``stabilizing brace'' and a barrel of less than 18 inches is an NFA
``firearm,'' i.e., a short-barreled shotgun.\73\
---------------------------------------------------------------------------
\73\ As mentioned above, any classification that provides that a
``pistol grip shotgun'' is not an NFA firearm is no longer valid or
authoritative and should be resubmitted to FATD for evaluation.
---------------------------------------------------------------------------
B. Application of Proposed ATF Worksheet 4999
Similar to the Factoring Criteria for Weapons, ATF Form 4590
(``Form 4590''), which is used for the importation of pistols and
revolvers, the proposed ATF Worksheet 4999 contained a point system
assigning a weighted value to various characteristics of the fully
assembled firearm, as configured when submitted for classification.
Under the proposed worksheet, a firearm accumulating fewer than 4
points in Section II (Accessory Characteristics), and fewer than 4
points in Section III (Configuration of Weapon), would have been
generally determined not to be designed to be fired from the shoulder,
unless there was evidence that the manufacturer or maker expressly
intended to design the weapon to be fired from the shoulder. A firearm
accumulating 4 points or more in Section II or Section III would have
indicated that not only is the ``brace'' device more suitable as a
shoulder stock but also that the firearm's overall configuration with
the ``brace'' attached was designed, made, and intended to be fired
from the shoulder. See 86 FR at 30828-30.
The NPRM explained why certain prerequisites (i.e., weapon weight
and overall length) would be considered first to determine if the host
firearm would be a suitable weapon for a ``stabilizing brace.'' The
Department believed that these prerequisites would help ATF to
determine if the host firearm could be immediately identified as a
rifle, as defined by the applicable statutes. Moreover, as discussed,
``stabilizing braces'' were originally marketed as intended to assist
persons with disabilities and others lacking sufficient grip strength
to control heavy pistols. ATF had found the attachment of a
``stabilizing brace'' to a standard pistol that is light enough to hold
with no additional assistance to be impractical and hence also to be a
likely preliminary indicator that the attachment changes the firearm
into a firearm designed and intended to be fired from the shoulder.
Similarly, the attachment of a ``stabilizing brace'' to a firearm that
is so heavy or difficult to control that the firearm cannot feasibly be
held with one hand would also indicate the firearm is a rifle. For
these types of heavy pistols, ATF reasoned that the purported
``stabilizing brace'' would have no design function other than to
facilitate the firing of the weapon from the shoulder. Id. at 30829.
The proposed Worksheet 4999 assigned point values for the objective
design characteristics or features that are common to rifles, features
associated with shoulder stocks, and features limiting the ability to
use the ``stabilizing brace'' as an actual ``brace.'' These point
values ranged from 0 to 4 points based upon the degree of the
indicator, explained as follows:
<bullet> 1 point: Minor Indicator (the weapon could be fired from the
shoulder)
<bullet> 2 points: Moderate Indicator (the weapon may be designed and
intended to be fired from the shoulder)
<bullet> 3 points: Strong Indicator (the weapon is likely designed and
intended to be fired from the shoulder)
<bullet> 4 points: Decisive Indicator (the weapon is designed and
intended to be fired from the shoulder)
The point values associated with particular features or designs
were based upon their relative importance in classifying the firearm
under Federal law. Therefore, more points were assigned to design
features that more strongly indicated the manufacturer or maker's
intent was to produce a shoulder-fired weapon.
The various factors on the Worksheet 4999 fell into two
categories--Accessory Characteristics and Configuration of the Weapon.
The NPRM explained the criteria that would be considered and why they
were important in making classifications of firearms with attached
``stabilizing braces.'' Id. at 30831-34. As stated above, if the total
point value of the firearm submitted was equal to or greater than 4--in
either Section II (Accessory Characteristics) or III (Configuration of
a Weapon)--then the firearm, with the attached ``stabilizing brace,''
would be determined to be ``designed or redesigned, made or remade, and
intended to be fired from the shoulder,'' or a ``rifle'' under the GCA
and NFA. And, if the attached barrel was also less than 16 inches, the
firearm would be classified as a ``short-barreled rifle'' under the GCA
and come under the NFA definition of ``firearm.''
Section IV of the NPRM provided examples of how the factoring
criteria in Worksheet 4999 would be implemented with respect to three
weapons with common ``stabilizing braces'' attached. Id. at 30834-43.
Under these examples, the NPRM showed that, in applying the factors of
the worksheet: (1) an AR-Type Firearm with SB-Mini Accessory would be
classified as a pistol with an attached ``stabilizing brace'' because
it garnered three points in each of Section II and III; (2) an AR-Type
Firearm with SBA3 Accessory would be classified as a ``short-barreled
rifle'' subject to the NFA because it garnered eight points in Section
II and five points in Section III; and (3) an AR-Type Firearm with
Shockwave Blade Accessory as configured would also be classified as a
short-barreled rifle subject to the NFA because it garnered five points
in Section II and 14 points in Section III.
In the NPRM, the Department also noted that ATF issued
classifications to some makers or manufacturers without having had the
benefit of evaluating the ``brace'' when attached to a firearm. The
NPRM encouraged any maker or manufacturer who received a classification
prior to the effective date of the final rule to resubmit the weapon
with the attached ``stabilizing brace'' to ensure that the
classification is consistent with the rule and to avoid any possible
criminal or tax penalties for the continued manufacture, transfer, or
possession of a NFA firearm. 86 FR at 30829.
As described above, FATD's classifications allow industry members
to plan and develop products that comply with the law, thereby reducing
their risk of incurring criminal or civil
[[Page 6497]]
penalties or the need for corrective actions, including a recall by the
manufacturer. The Department recognized that the proposed clarification
of the relevant statutory terms in the NFA and GCA with respect to
weapons with an attached ``stabilizing brace'' device might have
practical effects on industry members and members of the public, as
they might make or manufacture, or already own, firearms with a
``stabilizing brace'' attached. To assist affected persons and industry
members, section V of the NPRM provided additional information in the
preamble to aid them in complying with Federal laws and regulations.
Id. at 30843-44.
IV. Analysis of Comments and Department Responses
In response to the NPRM, ATF received over 237,000 comments.
Submissions came from individuals, lawyers, government officials, and
various interest groups. Of the comments reviewed, nearly 20,000
comments expressed support for the proposed rule, of which just under
18,000 were submitted by individuals as form letters, i.e., identical
text that is often supplied by organizations or found online and
recommended to be submitted to the agency as a comment. There were over
217,000 comments opposed to aspects of the rule. Approximately 96,000
comments were submitted as form letters and, of these, just over 25,000
were submitted using the National Association for Gun Rights (``NAGR'')
form letter. The commenters' grounds for support and opposition, along
with specific concerns and suggestions, are discussed below.
A. Comments Received in Support
Many commenters generally supported the rule. These commenters
explained that while ``stabilizing braces'' were originally developed
to assist those with physical disabilities shoot a firearm, pistol
braces are frequently used to effectively turn firearms into short-
barreled rifles, making the firearms subject to registration
requirements under the NFA.
Numerous commenters argued that the adoption of this rule would
promote public safety. Other commenters indicated that they favored
greater regulation of firearms in general. One commenter, a retired
military servicemember with familiarity with firearms, stated that if
the weapon does not fit in a holster at the waist or shoulder, or can
be hidden in a pocket, then it is not a handgun. Another commenter
similarly agreed and said ``I love the 2A! Love my guns! Never give
them up! That being said, if you put it to your shoulder it's a
rifle!''
Below, the Department sets forth and responds to the specific
issues raised in comments that generally supported the NPRM.
1. Closes a Loophole and Prevents Circumventing the Law
Comments Received
Numerous commenters stressed that this rule would help close the
``Arm Brace Loophole,'' pointing out that while ``braces'' may be
useful in certain instances, problems arise when they are made to
function as a buttstock. For instance, commenters agreed with ATF that
there are individuals who are trying to circumvent the law by calling a
collapsible stock a ``brace'' when in reality the ``braces'' are being
used as buttstocks. Commenters stated that these types of firearms are
an ``attempt by many to create a short-barreled rifle under the guise
of assisting shooters with disabilities.'' Another commenter stated
that he has never understood selling ``pistols'' with attached
``stabilizing braces'' because ``it was just a way to skirt the
legislation already in place for short-barreled rifles.'' One
commenter, who identified as a former gunsmith and licensee with
experience in the firearms industry for over 15 years, stated that he
has ``never seen anyone utilize a brace in the manner that it was
originally designed.'' The commenter also stated that he has ``often
found that the vast majority of `brace' designs cannot be actually used
as intended.'' The commenter pointed out several types of weapons with
braces, such as the CZ Evo Scorpion pistol, which are ``clearly
[weapons] designed to be fired from the shoulder.'' The commenter
strongly urged that all these weapons should be reclassified as NFA
weapons, which is how he believes they should have been initially
designated.
Numerous commenters opined that firearms companies are simply
trying to circumvent the law through the use of ``braces.'' One
commenter stated that ``while arm braces have enabled disabled shooters
to operate large-format pistols with one hand, the gun industry has
sidestepped this intended use to market pistols equipped with arm
braces as an alternative to `short-barreled rifles.''' Another
commenter, a long-time shooting enthusiast, similarly opined that
``[t]his whole thing has been a marketing tool to sell firearms to
people that do not have enough knowledge to make informed purchasing
decision.''
Some commenters stated that this rule is long overdue. The
commenters believed it is not hard for individuals to complete the NFA
paperwork to register their short-barreled rifles and that it is not a
significant cost on gun owners. One commenter indicated that gun owners
who spend $1500 on an AR pistol should be able to afford the $200 tax
to register it.
Department Response
The Department acknowledges the commenters' support of the proposed
rule. The definitions of ``rifle'' under the GCA and NFA include a
weapon designed or redesigned, made or remade, and intended to be fired
from the shoulder. 18 U.S.C. 921(a)(7), 26 U.S.C. 5845(c). The GCA and
NFA do not ban or regulate ``stabilizing brace'' devices that are not
attached to a firearm, and this rule does not have that effect, nor
does it ban weapons equipped with a purported ``stabilizing brace.''
The Department agrees that while some ``stabilizing brace'' devices may
assist an individual with disabilities, or limited mobility or
strength, in stabilizing a large and heavy pistol, many purported
``stabilizing braces,'' when attached to a weapon, result in a firearm
with objective design features indicating the ``braced'' weapon is
designed, made, and intended to be fired from the shoulder.
Accordingly, they may appropriately be classified as a rifle and
possibly a short-barreled rifle, depending on barrel length. As a
result, the Department agrees with the commenters above that a weapon
attached with a purported ``stabilizing brace'' may fall within the
purview of the NFA and, if so, must satisfy statutory requirements.
This rule amends the definition of ``rifle'' to clarify that the
term ``designed or redesigned, made or remade, and intended to be fired
from the shoulder'' includes 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 listed
in the amended regulations, indicate that the weapon is designed, made,
and intended to be fired from the shoulder. These other factors are:
(1) whether the weapon has a weight or length consistent with the
weight or length of similarly designed rifles; (2) 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
[[Page 6498]]
positions along a buffer tube, receiver extension, or other attachment
method), that is consistent with similarly designed rifles; (3) 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; (4) 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; (5) the
manufacturer's direct and indirect marketing and promotional materials
indicating the intended use of the weapon; and (6) information
demonstrating the likely use of the weapon in the general community.
For the reasons discussed in section IV.B of this preamble, the
Department incorporated the relevant objective design features (as
described in Sec. Sec. 478.11(2)(i)-(iv) and 479.11(2)(i)-(iv) of the
final regulatory text) directly from the NPRM and proposed Worksheet
4999. In addition, as explained below, the Department has incorporated
the factors described in Sec. Sec. 478.11(2)(v)-(vi) and 479.11(2)(v)-
(vi). Although the factors in these paragraphs are not objective design
features of the weapon, the NPRM observed that evidence other than
objective design features would sometimes play a role in classifying a
weapon. For example, the NPRM stated that certain weapons, based on
their point totals on the proposed worksheet, would not be classified
as rifles ``unless there [was] evidence that the manufacturer or maker
expressly intended to design the weapon to be fired from the
shoulder.'' 86 FR at 30829. The Department believes that the final rule
should likewise account for the possibility that factors other than
objective design features may affect a weapon's classification, and the
final rule accordingly includes Sec. Sec. 478.11(2)(v)-(vi) and
479.11(2)(v)-(vi).
The Department also agrees with commenters that the procedure to
register short-barreled rifles, which include in certain instances
firearms with ``stabilizing braces,'' is through an ATF Form 1,
Application to Make and Register a Firearm (``Form 1''), with the
approval of the Attorney General, or, for SOT holders, an ATF Form 2,
Notice of Firearms Manufactured or Imported (``Form 2''). See 26 U.S.C.
5822; 27 CFR 479.62, 479.68. Usually, each maker submitting a Form 1
must pay a $200 making tax on each NFA firearm made.\74\ See 26 U.S.C.
5821. As described in sections IV.B.8.e, IV.B.9.b-c, and V.C of this
preamble, however, the Department will exercise its enforcement
discretion not to enforce the making tax on any individual or entity
for weapons affected by this rule that are currently in the possession
of the individual or entity, provided the individual or entity
registers the firearm by May 31, 2023. See 26 U.S.C. 7805(b) (1994)
(granting discretion to determine retroactive effect of regulations
relating to the internal revenue laws). Individuals and FFLs without an
SOT would submit an electronic version of Form 1 (``E-Form 1'') for the
affected short-barreled rifles with an attached ``stabilizing brace''
in their possession as of the date this rule is published. Type 7 FFLs
with an SOT, in contrast, would submit an electronic version of Form 2
(``E-Form 2'') for the affected short-barreled rifles with an attached
``stabilizing brace'' in their inventory as of the date this rule is
published.
---------------------------------------------------------------------------
\74\ Submission of a Form 2, in contrast, does not require an
accompanying tax payment. Thus, for weapons registered on a Form 2,
there is no tax payment for ATF to forbear from collecting.
---------------------------------------------------------------------------
Provided the registration form is properly submitted and documented
within the defined time period, the Department will consider
individuals and entities to be in compliance with the statutory
requirements between the date on which a person's application is filed
and the date a person receives ATF approval or disapproval of the
application. After the 120-day registration period following the
publication of this rule, registration of previously made or
manufactured weapons with ``stabilizing braces'' that constitute NFA
firearms will not be permitted. Any person in possession of a short-
barreled rifle for which an E-Form 1 or E-Form 2 has not been submitted
to ATF within the defined time period will be in violation of the NFA,
and ATF may take enforcement action. Individuals or entities that do
not wish to register their firearms may refer to section V.B of this
preamble for other options.
2. Enhances Public Safety
Comments Received
Comments submitted by the attorneys representing the cities of
Boulder, Colorado, and Dayton, Ohio, noted that short-barreled rifles
are uniquely dangerous because they ``combine the power of shoulder-
mounted rifles with the concealability of handguns'' and that
``stabilizing braces'' are functionally equivalent to shoulder stocks.
The commenters observed that ``the Dayton and Boulder shooters' pistol
braces allowed them to better hide their weapons and better deploy them
to attack dozens of innocent victims.'' This rule, the commenters
argued, ``would be a positive step in helping cities like Boulder and
Dayton protect their citizens . . . from devasting attacks'' from
firearms with an attached ``stabilizing brace.''
Numerous commenters likewise opined that dangerous people have
manipulated the use of ``stabilizing braces'' on pistols to create
assault-style pistols that make the firearm more dangerous because it
can be easier to conceal, and to shoot more bullets faster. They argued
that the rise of these weapons and the ease in which they can be
acquired greatly impacts public safety.
Similarly, other commenters, including former law enforcement
officers, voiced support for the rule and reclassification of weapons
with an attached ``stabilizing brace'' as NFA firearms because they are
effectively short-barreled rifles, which, as evidenced by their use in
the Boulder and Dayton mass shootings, ``are unusually dangerous
because they can be easily concealed like a handgun but have the
firepower and accuracy of a rifle.'' Commenters agreed this rule change
was a good measure because ``[m]ore and more often these braces are
showing up on crime gun and it is alarming.''
Several commenters approved of the fact that the rule addresses the
threat to public safety ``while still allowing for disabled shooters to
utilize arm braces.'' One commenter stated that ``[e]nacting this rule
will continue to enable disabled shooters to purchase and use these
devices, but will better protect the American public from gun
violence.''
Department Response
The Department acknowledges the commenters' support and agrees this
rule will benefit public safety. Short-barreled rifles have been
recognized by Congress and the courts as the type of uniquely dangerous
weapons appropriately regulated under the NFA. Courts have recognized
the dangerousness and uniqueness of NFA firearms, and that the
possession of unregistered NFA firearms poses a danger to the
community. See United States v. Jennings, 195 F.3d 795, 799 (5th Cir.
1999) (Congress determined that the unregistered possession of the
particular firearms regulated under the NFA should be outlawed because
of ``the virtual inevitability that such possession will result in
violence.''); United States v. Cox, 906 F.3d 1170,
[[Page 6499]]
1184 (10th Cir. 2018) (explaining the Supreme Court's conclusion that
```the historical tradition of prohibiting the carrying of dangerous
and unusual weapons' supported limiting the Second Amendment's
protection to weapons `in common use at the time' of ratification''
(quoting District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008));
United States v. Gonzalez, No. 2:10-cr-00967, 2011 WL 5288727, at *5
(D. Utah Nov. 2, 2011) (``Congress specifically found that `short-
barreled rifles are primarily weapons of war and have no appropriate
sporting use or use for personal protection.''' (quoting S. Rep. No.
90-1501, at 28 (1968))).
Short-barreled rifles specifically are dangerous and unusual due to
both their concealability and their heightened ability to cause
damage--a function of the projectile design, caliber, and propellant
powder used in the ammunition and the ability to shoulder the firearm
for better accuracy. See United States v. Marzzarella, 614 F.3d 85, 90-
95 (3d Cir. 2010) (explaining that a long gun with a shortened barrel
is both dangerous and unusual because ``its concealability fosters its
use in illicit activity,'' and ``because of its heightened capability
to cause damage''), abrogated on other grounds as stated in Frein v.
Pennsylvania State Police, 47 F.4th 247, 253 (3d Cir. 2022); United
States v. Amos, 501 F.3d 524, 531 (6th Cir. 2007) (McKeague, J.,
dissenting) (``[A] sawed-off shotgun can be concealed under a large
shirt or coat . . . . [T]he combination of low, somewhat indiscriminate
accuracy, large destructive power, and the ability to conceal . . .
makes a sawed-off shotgun useful for only violence against another
person, rather than, for example, against sport game.''); Bezet v.
United States, 276 F. Supp. 3d 576, 611-12 (E.D. La. 2017) (``Prior to
the enactment of the NFA, Congress recognized that the country
struggled to control the violence wrought by `gangsters, racketeers,
and professional criminals.' . . . Similarly to the GCA, the NFA was
adopted by Congress to establish a nationwide system to regulate the
sale, transfer, license, and manufacturing of certain `dangerous
weapons' such as `machine guns, sawed-off shotguns, sawed-off rifles,
and other firearms, other than pistols and revolvers, which may be
concealed on the persons, and silencers.' . . . [T]he NFA targets
`certain weapons likely to be used for criminal purposes.' ''
(footnotes omitted.)), aff'd, 714 F. App'x 336 (5th Cir. 2017). Many
firearms with ``stabilizing braces'' include a barrel of less than 16
inches and the objective design features of a firearm designed and
intended to be fired from the shoulder. These types of firearms are
those that Congress sought to regulate, as confirmed by Federal courts.
The Department also acknowledges that firearms equipped with
``stabilizing braces'' have been used in two mass shootings, with
shooters in both instances reportedly shouldering the ``brace'' as a
shoulder stock, demonstrating the weapons' efficacy as ``short-barreled
rifles.'' \75\ The compact size of these firearms also assists with
concealability of a firearm with a large destructive power. Since 2014,
the FTCB reports that there have been approximately 104 Federal
criminal classifications where firearms equipped with a ``stabilizing
brace'' have been received by FATD for classification as a part of
criminal investigations. Further, since 2015, ATF reports that
approximately 63 firearms with ``stabilizing braces'' have been traced
in criminal investigations.\76\ ATF has approximately 105 firearms
cases or investigations involving ``stabilizing brace'' devices.\77\
---------------------------------------------------------------------------
\75\ See supra note 67.
\76\ This information is drawn from the Firearms Tracing System
(FTS) database maintained by ATF's National Tracing Center's (NTC)
covering January 1, 2015, through November 1, 2022. The number of
traced firearms equipped with a ``stabilizing brace'' device may be
underreported because this information is captured in FTS when the
user entering the firearm information makes observations and enters
relevant terms like ``brace'' or ``stabilizing brace'' in the
``Additional Markings'' field of FTS.
\77\ This information is from ATF's Office of Strategic
Intelligence (OSII) covering January 1, 2015, through November 1,
2022.
---------------------------------------------------------------------------
B. Comments Received in Opposition
A majority of commenters opposed the proposed rule or any new
regulation or registration requirements for firearms equipped with an
attached ``stabilizing brace.'' Commenters broadly argued that ATF
should not make any changes from previous determinations regarding
``stabilizing braces,'' thus allowing owners of such attachments to
continue using these items in their current configurations. As
discussed below, many of the commenters that opposed the rule raised
various concerns about the Department's proposed amendments to ATF
regulations and the factors in the proposed Worksheet 4999. Commenters
raised constitutional and statutory authority concerns and also
concerns with denying persons with disabilities the use of a
``stabilizing brace'' to assist with shooting a firearm. They further
argued that the rule punishes law-abiding citizens and does not advance
the Department's public safety goals. Commenters also questioned ATF's
initial analysis regarding the costs of the rulemaking.
1. Statutory Concerns
a. Lack of Statutory Authority To Issue a Rule on ``Stabilizing
Braces''
Comments Received
Numerous commenters asserted that ATF is overstepping its authority
and changing the scope of the law on its own. Commenters also stated
that ATF is in the executive branch and not the legislative branch, and
therefore it should not be creating new laws, which is allegedly what
the proposed rule achieves. A few other commenters stated that while
DOJ has some leeway in making recommendations to Congress, only
Congress has the authority to make changes to the law.
Commenters further asserted that ATF has no statutory authority to
regulate or impose NFA controls on accessories such as secondary grips,
sights and scopes, or peripheral accessories, including ``stabilizing
braces.'' Another commenter argued that ATF's proposed criteria are
``in support of a non-statutory analysis about whether a weapon can be
more easily fired with one hand or two hands'' and that this is
inconsistent with the NFA and GCA's obligation that the agency regulate
weapon that are ``intended to be fired from the shoulder.'' For
example, the commenter argued that several factors of Section III of
proposed Worksheet 4999 violated the statute because they allowed ATF
to assign points based on the presence of certain ``peripheral
accessories'' or ``bipod/monopod accessories''; these accessories,
according to the commenter, are not considered suitable for
shouldering, and their inclusion on Worksheet 4999 was contrary to the
plain text of the statute.
Commenters asserted that not only is ATF beyond the scope of its
authority under the GCA in issuing this rule but also that ATF has
limited authority to promulgate regulations that are necessary to
enforce the provisions of the GCA and NFA. These commenters believed
the change proposed by this rule ``has the power of a Federal law that
the American public did not get to vote on.'' Further, commenters
argued that ``ATF is without authority to amend, supplement,
reinterpret or rewrite the laws that Congress enacts, even to implement
what the agency perceives to have been Congress' intent when passing
the law. Rather it is ATF's responsibility to implement the law as it
is written.'' (Emphases in the original.) At least one commenter noted
that if the
[[Page 6500]]
intent of Congress is clear, the agency must not interpret the law in a
way other than the original intent of Congress and that ATF cannot
``simply add to the clear unambiguous definition of `rifle' provided by
Congress.''
Department Response
The Department does not agree that the rule exceeds the authority
provided under law; the rule is interpreting the language of the
statute as written. Moreover, as explained in section II.A of this
preamble, the Attorney General is responsible for enforcing the GCA and
NFA, and Congress provided authority to the Attorney General to
promulgate regulations as are necessary to enforce the provisions of
these laws. See 18 U.S.C. 926(a); 26 U.S.C. 7801(a)(2)(A), 7805(a).
Congress and the Attorney General have delegated the responsibility for
administering and enforcing the GCA and NFA to the Director of ATF,
subject to the direction of the Attorney General and the Deputy
Attorney General. See 26 U.S.C. 7801(a)(2); 28 U.S.C. 599A(b)(1),
(c)(1); 28 CFR 0.130(a)(1)-(2); T.D. Order No. 221(2)(a), (d), 37 FR at
11696-97. Accordingly, the Department and ATF have promulgated
regulations to implement the GCA and NFA. See 27 CFR parts 478, 479.
``Because [section] 926 authorizes the [Attorney General] to promulgate
those regulations which are `necessary,' it almost inevitably confers
some measure of discretion to determine what regulations are in fact
`necessary.''' Nat'l Rifle Ass'n v. Brady, 914 F.2d 475, 479 (4th Cir.
1990). Like reasoning applies to 26 U.S.C. 7805(a), which states in
similar language that ``[the Attorney General] shall prescribe all
needful rules and regulations for the enforcement of this title.'' And
courts have long recognized that regulatory agencies do not establish
rules to last forever. ``They are neither required nor supposed to
regulate the present and the future within the inflexible limits of
yesterday.'' Am. Trucking Ass'n v. Atchison, Topeka, and Santa Fe Ry.
Co, 387 U.S. 397, 416 (1967).
In the original GCA implementing regulations, ATF provided
regulatory definitions for terms that Congress did not define in the
statute. Internal Revenue Service, Department of the Treasury, 33 FR
18555 (Dec. 14, 1968) (e.g., ``business premises'', ``curios or
relics'', ``frame or receiver'', ``state of residence''). Since 1968,
ATF has occasionally added definitions to the implementing regulations.
See, e.g., Implementation of Public Law 104208, Omnibus Consolidated
Appropriations Act of 1997 (96R-034P), 63 FR 35520 (June 30, 1998)
(implementing definition of ``misdemeanor crime of domestic violence''
and terminology used in the statutory definition that was undefined
such as ``a person who is cohabiting with or has cohabited with the
victim as a spouse''). As is the case with the GCA, ATF has provided
regulatory definitions for terms in the NFA that Congress did not
define, such as ``manual reloading,'' ``responsible person,'' ``single
function of the trigger,'' ``automatically,'' and ``frame or
receiver.'' See Miscellaneous Amendments, 26 FR 2407 (Mar. 22, 1961)
(defining ``manual reloading''); Machineguns, Destructive Devices and
Certain Other Firearms; Background Checks for Responsible Persons of a
Trust or Legal Entity With Respect To Making or Transferring a Firearm,
81 FR 2658 (Jan. 15, 2016) (adding the definition for the term
``responsible person''); Bump-Stock-Type Devices, 83 FR 66514 (Dec. 26,
2018) (defining the terms ``single function of the trigger'' and
``automatically''); Definition of ``Frame or Receiver'' and
Identification of Firearms, 87 FR 24652 (Apr. 26, 2022) (revising and
clarifying the definition of ``frame or receiver''). These definitions
were necessary to implement the statutes.
This rule is similar to these other examples, and, contrary to
commenters' suggestions, it is not creating a new law; instead, it
simply clarifies the definition of ``rifle'' under 27 CFR 478.11 and
479.11, as necessary to implement existing law--i.e., the NFA and GCA.
Although Congress defined the term ``rifle'' in the NFA, see 26 U.S.C.
5845, Congress did not further define the key phrase from that
definition: ``designed or redesigned, made or remade, and intended to
be fired from the shoulder.'' Given the wide variety of configurations
of weapons and ``stabilizing braces,'' this rule is ``necessary'' or
``needful'' to clarify the meaning of this phrase. See 18 U.S.C. 926;
26 U.S.C. 7805(a). This rule supplies that necessary clarity by
providing the objective design features and other factors that ATF will
use to discern whether a firearm is designed, made, and intended to be
shoulder fired, and this rule represents the Department's best
interpretation of the relevant statutory language.
If a pistol with an attached ``stabilizing brace'' is found to be a
``rifle,'' then such firearm could also be considered a ``short-
barreled rifle'' under the NFA and GCA, depending on the overall length
of the weapon or length of the attached barrel, thus subjecting it to
additional requirements as an NFA weapon. 26 U.S.C. 5845(a)(3)-(4); 18
U.S.C. 921(a)(8); cf. Thompson/Center Arms Co., 504 U.S. at 513 n.6
(``The inclusion of the rifle stock in the package brings the Contender
[pistol] and carbine kit within the `intended to be fired from the
shoulder' language contained in the definition of rifle in the statute.
See 26 U.S.C. 5845(c). The only question is whether this combination of
parts constitutes a short-barreled rifle.'').\78\ A firearm does not
evade classification as an NFA weapon simply because it is configured
with a compatible attachment, such as a ``stabilizing brace,'' that may
serve a function other than as a shoulder stock to effectuate shoulder
fire. As described in section II.B of this preamble, ATF recognized at
the end of 2018 that it was necessary to evaluate the actual firearm at
issue with the ``brace'' device attached.\79\
---------------------------------------------------------------------------
\78\ The Supreme Court in Thompson/Center concluded that the
``mere possibility'' that a pistol and accompanying kit might be
``use[d] to assemble a regulated firearm'' did not establish that
the ``combined packaging'' of the kit and pistol brought the package
within the scope of ``making'' a short-barreled rifle. 504 U.S. at
513. The Department is not adopting such an approach. This rule does
not require regulation of a pistol based on the ``mere possibility''
that a ``stabilizing brace'' may be attached and the resulting
firearm fired from the shoulder. Rather, the rule requires a
consideration of objective design features and other factors to
determine whether the ``braced'' weapon is designed, made, and
intended to be fired from the shoulder.
\79\ See supra note 57 and accompanying discussion.
Additionally, on April 26, 2022, the Department published the final
rule titled ``Definition of `Frame or Receiver' and Identification
of Firearms,'' in which ATF codified in its regulations at 27 CFR
478.92(c) instructions to the public that any requests for a
determination on how an items affects the classification of a
firearm under the GCA or NFA must include the firearm sample with
all accessories and attachments relevant to the classification. 87
FR at 24743. Prior to the publication of that final rule, FATD had
been conveying this information through the classification process.
---------------------------------------------------------------------------
This rule makes clear that the configuration of a pistol with an
attached ``stabilizing brace'' can possess objective design features
that, along with the direct or indirect marketing materials from the
manufacturer or other information showing likely use by the general
community, demonstrate the firearm is configured to be fired from the
shoulder, making it a ``rifle.'' Section IV.B.3 of this preamble
discusses further the factors necessary to determine when a weapon is a
rifle as defined by the NFA and GCA. By incorporating the objective
design features and other factors into the amended regulatory
definition of ``rifle,'' the Department is implementing the statutory
definition of ``rifle'' so the industry and public receive notice and
may avoid potential legal hazards when installing a ``brace'' or other
device on a firearm. Contrary to commenters'
[[Page 6501]]
assertions, the Department is not regulating the manufacture, sale, or
possession of ``stabilizing braces'' themselves--that is, ``stabilizing
braces'' when not attached to or associated with particular weapons.
Accordingly, the rule does not create any new law; instead it simply
implements the relevant statutes based on the Department's best
interpretation of those statutes.
b. Lack of Authority Regarding Tax Collection
Comments Received
One commenter argued that ATF ``is claiming authority to reclassify
[pistols] that it doesn't have.'' (Emphasis omitted). In particular,
the commenter asserted that the proposed rule violates 26 U.S.C. 4181-
4182, 5811, which impose a 10 percent tax on pistols and a $200 tax on
short-barreled rifles, all monies that have already been collected.
Because ATF is not ``grandfather[ing]' current pistols,'' the commenter
asserted that ``ATF would have to undo that tax, because something
cannot be a Pistol and [a short-barreled rifle].'' The commenter argued
that ATF would have to go back a decade to collect taxes due on short-
barreled rifles and that the agency ``has no authority to undo that
tax'' because, according to the commenter, only Congress can change the
tax code and only for that calendar year. (Emphasis omitted).
Department Response
The Department disagrees with the commenter who argued that the
proposed rule violates 26 U.S.C. 4181-4182, 5811, which impose excise
and making taxes on pistols and short-barreled rifles. As discussed
above, the Attorney General delegated the administration and
enforcement of the NFA to the Director of ATF. The Internal Revenue
Code (``IRC''), 26 U.S.C. 6201, provides the Secretary of the Treasury
with the legal authority to determine and assess the amount of taxes
owed by a taxpayer. Section 7801(a)(2)(A) of the IRC grants this same
authority to the Attorney General with respect to enforcing the
provisions of the NFA (i.e., chapter 53 of title 26). This section
states in relevant part that ``[t]he administration and enforcement of
[as relevant here, chapter 53 of title 26] shall be performed by or
under the supervision of the Attorney General; and the term `Secretary'
or `Secretary of the Treasury' shall, when applied to those provisions
mean the Attorney General.'' Therefore, ATF has authority consistent
with the IRC to classify firearms and assess the appropriate tax
liability of the manufacture, making, or transfer of the item under the
NFA.
The Department also disagrees with the commenter's argument that
the Department is ``chang[ing]'' the tax code. The Department
acknowledges that firearms equipped with ``stabilizing brace'' devices
that are designed or redesigned, made or remade, and intended to be
fired from shoulder, i.e., ``rifles'', or ``firearms (other than
pistols or revolvers)'' incur an 11 percent excise tax, and that
pistols and revolvers incur a 10 percent excise tax when the firearm is
sold by a large manufacturer \80\ to a purchaser. 26 U.S.C. 4181, 4182;
27 CFR 53.2. Manufacturers who sold 50 or more such rifles in a
calendar year and did not pay tax under 26 U.S.C. 5811 (the NFA
transfer tax) may be required to pay that excise tax in accordance with
Federal regulations under Chapter 32 of the IRC. However, any
determination that a particular weapon is a ``rifle'' within the
meaning of the tax code does not change the tax code itself. It simply
classifies an item for purposes of the tax code. Moreover, the
Department notes that excise taxes are administered and collected by
the Alcohol and Tobacco Tax and Trade Bureau, which is a part of the
Department of the Treasury.
---------------------------------------------------------------------------
\80\ For purposes of excise tax, the term ``Manufacturer,'' as
defined in 27 CFR 53.11, includes any person who produces a taxable
article from junk material or from new or raw material by
processing, manipulating, or changing the form of an article or by
combining or assembling two or more articles. The term also includes
a ``producer'' and an ``importer.'' The person for whom the taxable
article is manufactured or produced, and not the person who actually
manufactures or produces it, will be considered the manufacturer
where a person manufactures or produces a taxable article for
another person who furnishes materials under an agreement whereby
the person who furnished the materials retains title thereto and to
the finished article.
---------------------------------------------------------------------------
c. Administrative Procedure Act (``APA'')
i. APA--Change in ATF Position
Comments Received
Numerous commenters asserted that the proposed rule is another
``flip flop'' by the agency and arbitrary and capricious in violation
of the APA. Commenters said that ATF has long held the position that
the NFA does not apply to pistols equipped with ``stabilizing braces,''
even if the ``braces'' are used to secure the weapons to the shoulder.
Numerous commenters outlined the history and positions ATF has taken
with respect to pistols with attached ``stabilizing braces,'' claiming
that ATF has been very inconsistent in its approach. For example, one
commenter questioned why ATF first officially recognized that a
``stabilizing braces'' configured on an AR-15 style pistol did not
create a ``rifle,'' but then, starting in 2012, provided 10 letters
going back and forth on whether a ``stabilize brace'' attached to a
firearm did create a ``rifle.'' Specifically, multiple commenters noted
that, in 2020, ATF said that ``stabilizing braces'' do not turn an AR-
pistol into a short-barreled rifle. Commenters stated that now, after
numerous years, ATF's proposed rule would make all previously produced
combinations of ``braces'' and firearms rifles rather than pistols.
Another commenter believed that ATF arbitrarily changed its
interpretation because it stated in the NPRM that ``stabilizing
braces'' are marketed ``to support single-handed firing.'' 86 FR at
30827. Because of this statement in the NPRM, the same commenter
remarked that ``ATF apparently believes that a stabilizing brace can
never be used on a `firearm' that is designed to be operated by two
hands.'' (Emphasis in the original.) The commenter argued that a
``stabilizing brace'' can be used to support two-handed, non-shouldered
fire.
Department Response
The Department acknowledges that the variations of ``stabilizing
brace'' designs, the manufacturer's purported intent for ``brace''
devices, the changes in ATF's classification process, and the
inconsistencies in ATF's analysis of ``braces'' attached to firearms
may have led to confusion regarding the application of the NFA and GCA
to firearms equipped with a purported ``stabilizing brace.''
The Department agrees with commenters, including SB Tactical, that
the analyses in some of ATF's prior opinions regarding incidental
firing from the shoulder and the use of ``stabilizing brace'' devices
on firearms have been inconsistent. Furthermore, as discussed below,
ATF acknowledges that its classifications issued between 2012 and 2020
did not properly or consistently evaluate whether firearms equipped
with those devices were ``rifles'' as defined in the NFA and GCA.
Specifically, ATF's analysis placed improper weight on whether the
``stabilizing brace'' at issue could be used as a ``brace'' to support
single-handed fire rather than whether the overall configuration of the
firearm with
[[Page 6502]]
the attached ``brace'' is designed and intended to be fired from the
shoulder, as required by the statutory definition of the term
``rifle.''
Nevertheless, the Department disagrees that any prior
inconsistencies or changes by ATF make this rule arbitrary and
capricious under the APA. Despite inconsistencies in ATF's prior
classifications, each classification letter referenced ATF's practice
of considering the physical design characteristics or features when
looking at a ``stabilizing brace'' device on a firearm.\81\ The
Department acknowledges that this rule is a change in position from
some of ATF's previous classifications or positions, but the intent of
this rule is to resolve prior inconsistencies and ensure consistent
application of the statutory definition of ``rifle'' to firearms
equipped with ``stabilizing braces'' or other rearward attachments. As
discussed below, the prevalent shouldering of these firearms further
demonstrates that a majority of firearms equipped with ``stabilizing
braces,'' currently or previously available on the market, incorporate
rifle characteristics. Therefore, it is necessary for the Department to
issue this rule to clarify the statutory definition of ``rifle'' and to
inform the public of the best interpretation of the definition, which
will guide the proper legal and factual analysis to be conducted in
evaluating whether a firearm is designed, made, and intended to be
fired from the shoulder. As a result, and to ensure consistency moving
forward, ATF's prior classifications pertaining to ``stabilizing
brace'' devices, or firearms equipped with a ``stabilizing brace,'' are
no longer valid or authoritative as of May 31, 2023.\82\
---------------------------------------------------------------------------
\81\ For example, a 2014 letter provided that ``FTB classifies
weapons based on their physical design characteristics.'' Letter
from ATF #301737 (Mar. 5, 2014). In the 2015 Open Letter, ATF noted
that it had previously looked at the objective design features in
classifying a ``stabilizing brace,'' even as it also considered the
manufacturer's or makers' stated intent. Similarly, in a 2017 letter
to counsel for SB Tactical, ATF clarified that if a shooter takes
``affirmative steps to configure the device for use as a shoulder
stock--for example, configuring the brace so as to permanently affix
it to the end of a buffer tube, (thereby creating a length that has
no other purpose than to facilitate its use as a stock), removing
the arm-strap, or otherwise undermining its ability to be used as a
brace--and then in fact shoots the firearm from the shoulder using
the accessory as a shoulder stock, that person has objectively
`redesigned' the firearm for purposes of the NFA.'' Letter from ATF
#30736 (Oct 31, 2017).
\82\ The Department has similarly announced in a different final
rule that certain classifications of frames or receivers were no
longer authoritative. See 87 FR at 24741.
---------------------------------------------------------------------------
When an agency changes course, the agency must ``provide [a]
reasoned explanation for its action.'' F.C.C. v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009). The agency, however, has no
heightened burden in prescribing regulations that displace inconsistent
previous regulatory actions. Id. at 514-15. Federal courts recognize
that it is within ATF's discretion to reclassify and rectify a firearms
classification error provided the agency's interpretation is consistent
with the statute and legislative history. Akins v. United States, 312
Fed. App'x 197, 200 (11th Cir. 2009) (holding the reclassification of
the Akins Accelerator as a machinegun was not arbitrary and
capricious).\83\ Accordingly, the Department recognizes it is within
ATF's authority to replace its prior inconsistent legal
classifications, provided the change is reasonably explained and the
new position is permissible under the statute.
---------------------------------------------------------------------------
\83\ See also Guedes v. Bureau of Alcohol, Tobacco, Firearms,
and Explosives, 356 F. Supp. 3d 109, 127 (D.D.C. 2019), judgment
entered, 762 F. App'x 7 (D.C. Cir. 2019) (``So long as any change is
reasonably explained, it is not arbitrary and capricious for an
agency to change its mind in light of experience, or in the face of
new or additional evidence, or further analysis or other factors
indicating [an] earlier decision should be altered or abandoned.''
(alteration omitted) (quoting New England Power Generators Ass'n v.
FERC, 879 F.3d 1192, 1201 (D.C. Cir. 2018))); Aposhian v. Barr, 374
F. Supp. 3d 1145, 1153 (D. Utah 2019) (concluding that ATF's change
in policy with regard to bump stocks was permissible under the
statute and was supported by good reasons when ATF explained that
prior position was not based on substantial or consistent legal and
where new interpretation was both permissible and best
interpretation of the statute), aff'd, 958 F.3d 969 (10th Cir.
2020), reh'g en banc granted, judgment vacated, 973 F.3d 1151 (10th
Cir. 2020), vacated sub nom. Aposhian v. Wilkinson, 989 F.3d 890
(10th Cir. 2021), and opinion reinstated sub nom. Aposhian v.
Wilkinson, 989 F.3d 890 (10th Cir. 2021).
---------------------------------------------------------------------------
From 2012 to 2018, ATF issued several classifications of
``stabilizing braces'' concluding that the ``brace'' did not redesign a
firearm to be fired from the shoulder.\84\ These pre-2018
classifications looked at whether the ``stabilizing brace'' brought a
firearm within the purview of the NFA in part by placing improper
weight on the manufacturer's stated intent to install the ``brace'' on
heavy pistols (e.g., AR-type, AK-type, CZ Scorpion) to stabilize the
arm to support single-handed fire, rather than whether objective design
features and other evidence, as listed in this rule, indicated that the
firearm equipped with the ``brace'' had been designed and intended to
be fired from the shoulder. ATF's classification letters after 2018,
while appropriately focusing on objective design features, continued to
place improper weight on whether the ``stabilizing brace'' at issue
could be used as a ``brace'' to support single-handed fire, even if the
overall configuration of the firearm equipped with the ``brace''
indicated the weapon was designed or redesigned, made or remade, and
intended to be fired from the shoulder. In other words, ATF now
concludes that it incorrectly reviewed and classified the weapons with
purported ``stabilizing braces'' in those classifications, with an
inappropriate reliance on the manufacturer's assertions that a
``stabilizing brace'' was intended to assist with single-handed firing
without regard to whether the objective features of the firearm
indicate that it is designed and intended to be fired from the
shoulder.\85\ This resulted in inconsistencies in ATF classifications
and an incorrect public perception that a firearm equipped with a
``stabilizing brace'' never falls within the purview of the NFA,
regardless of the objective design features of the firearm. The
Department accordingly clarifies for the public and the firearms
industry that the term ``designed or redesigned, made or remade, and
intended to be fired from the shoulder'' includes 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 that other factors,
as listed in the final regulatory text, also indicate that the weapon
with such surface area is designed, made, and intended to be fired from
the shoulder.
---------------------------------------------------------------------------
\84\ ATF classified the following brace devices prior to August
2018:
SB Tactical SB15 (marketed by SIG)
SB Tactical PSB Brace
Shockwave Blade Version 1
Shockwave Blade Version 2
Shockwave Blade with KAK Tube
Gear Head Works Tailhook Version 1
Gear Head Works Tail Hook Version 2
Safe Pistol Arm Brace
Strike Industries Stabilizer
Three Versions of Strike Industries Stabilizers
Strike Industries Stabilizer/Blade
Trinity Force AR Pistol Stabilizer
Bicep Brace Version 3
Accu Pistol Brace Version 2
Forearm BraceBP15 ``AR15-type'' Pistol Stabilizing Brace Version
2
Minimal Arm Brace
Buffer Tube Adaptor for AK w/SB15
Additionally, in 2020 ATF classified a Ruger 556 pistol with a
SB Tactical SBL Mini ``stabilizing brace attached as a pistol and
not a rifle.
\85\ See supra note 26.
---------------------------------------------------------------------------
The Department also acknowledges the commenters' concerns that ATF
changed its interpretation when it indicated in the NPRM that ``a
stabilizing brace can be used only to support single-handed firing.''
Indeed, the Department agrees that the ability to fire with a single
hand is not in part of the GCA or NFA definition of ``rifle.'' Hence,
in prior classifications, ATF
[[Page 6503]]
erroneously concluded that the incorporation of a ``stabilizing brace''
that allowed single-handed firing, as stated by the manufacturer,
precludes the firearm from being designed, made, and intended to be
fired from the shoulder. This interpretation by ATF incorrectly read
into the GCA and NFA a requirement that, for a firearm to be a rifle,
it must exclusively be designed, made, and intended to be fired from
the shoulder; in other words, ATF did not recognize that a firearm
equipped with an accessory or rearward attachment like a ``stabilizing
brace'' may be a rifle, regardless of whether the firearm includes a
feature that might permit an alternate use of one-handed firing. It is
similarly incorrect to focus on whether a ``stabilizing brace'' can be
used, in some circumstances, to support two-handed, non-shouldered
fire.
Indeed, courts have likewise held that a firearm does not need to
be designed and intended exclusively to be fired from the shoulder to
constitute a short-barreled rifle under the law. See United States v.
Rose, 695 F.2d 1356, 1358 (10th Cir. 1982) (holding that a firearm with
a collapsible stock is a short-barreled rifle and rejecting the
defendant's claim that the weapon must have been designed or redesigned
to fire exclusively from the shoulder). The Tenth Circuit stated that,
``[a]lthough the Uzi could be fired from several positions, testimony
indicated that the Uzi is an effective shoulder weapon,'' and the Uzi's
``collapsible stock[ ] permitted [it] to be fired from the shoulder.''
Id. The Uzi was accordingly ``redesigned or intended to be used as a
rifle within the meaning of '' the statutory definition. Id. Similarly,
in a case involving a firearm with a 14-1/2 inch barrel that could be
fired with one hand or from the shoulder, a defendant argued that,
because the firearm lacked any sights and because it was not
necessarily advantageous to fire the weapon from the shoulder, the
firearm should not be regulated as a ``rifle'' under the NFA. Sipes v.
United States, 321 F.2d 174, 178-79 (8th Cir. 1963), overruled on other
grounds.\86\ The Eighth Circuit concluded the weapon was still a rifle.
Id. ``That it had no sights or that it could be fired elsewhere than
from the shoulder makes it no less a rifle within the statutory
definition.'' Id. at 178. This reasoning is plainly applicable here. A
``stabilizing brace'' device cannot remove a firearm from the
definition of a rifle solely because the purported purpose or effect of
the device is to facilitate one-handed firing, even if the device does
allow one-handed firing as a possible alternative means of using the
weapon.
---------------------------------------------------------------------------
\86\ Specifically, Haynes v. United States rejected the
government's argument which cited Sipes for the proposition that two
separate offenses occur for failure to register a firearm and
subsequent possession of the firearm under 26 U.S.C. 5841 and 5851.
390 U.S. 85, 91 n.7 (1968).
---------------------------------------------------------------------------
Due to the past inconsistences and misapplication of the statutory
definition as pointed out by commenters, the Department is within its
statutory authority and under an obligation to reconsider and rectify
its past classifications. Moreover, the fact that many of these
``stabilizing brace'' devices are designed and intended to be the
equivalent of a shoulder stock, or that firearms equipped with
``stabilizing brace'' devices are in fact designed and intended to be
fired from the shoulder, is abundantly evident in publications and
consumer and marketing material issued by firearms manufacturers. For
instance, ATF identified multiple online articles after its evaluation
of SB Tactical's SB15 that cited the SB15 ``brace'' as a method to
circumvent the NFA, in that the ``brace'' functions well as a shoulder
stock. The articles also included pictures of individuals shooting
firearms, equipped with the SB15, from the shoulder.\87\ ATF identified
one article posted on SB Tactical's website, dated December 23, 2014,
which discussed an award for SB Tactical's CEO as the most influential
personality of the year for inventing the SB15. The article states:
``It's no secret that Bosco's brace can also be used as a shoulder
stock by people with two good arms. With Bosco's brace, all Americans
are able to modify an AR-15-style pistol into what's effectively [a
short-barreled rifle]--without additional ATF infringement on their gun
rights.'' \88\
---------------------------------------------------------------------------
\87\ Alex C. Gun Review: Sig SB15 Pistol Stabilizing Brace
Review, The Firearm Blog (Aug. 18, 2013), <a href="https://www.thefirearmblog.com/blog/2013/08/18/sig-sb15-pistol-stabilizing-brace-review/">https://www.thefirearmblog.com/blog/2013/08/18/sig-sb15-pistol-stabilizing-brace-review/</a> (``If you are like me, you remember seeing the Sig
SB15 a while back and thinking `hey they hacked the NFA'. Of course
we all know how it is supposed to be used, but let us get real and
look at this objectively: Sig made an `arm brace' and got ATF
approval for said arm brace. The arm brace slides over a pistol
buffer and looks like a stock . . . but it is an arm brace.''); Ryan
Cross, Sig Sauer SB15 Pistol Stabilizing Brace, Firearms Insider
Community (Sept. 14, 2014), <a href="http://www.firearmsinsider.tv/gun-gear-reviews/category/Sig+Sauer">http://www.firearmsinsider.tv/gun-gear-reviews/category/Sig+Sauer</a> (``So basically if you have an AR Pistol
and you install this arm brace, it lets you legally own something
that is similar to an SBR in handling/shouldering terms, without
filling a Form 4, paying for a tax stamp, and waiting between 8-12
months for your stamp and approved paperwork, AND not being able to
transport the firearm between states without notification of [law
enforcement officers].''); Dave Higginbotham, Sig Sauer P556, Short
Barrel Rifle Performance from a Pistol--New Gun Review, Gun America
Digest (May 30, 2014), <a href="https://www.gunsamerica.com/digest/sig-sauer-p556-short-barrel-rifle-performance-pistol-new-gun-review-2/">https://www.gunsamerica.com/digest/sig-sauer-p556-short-barrel-rifle-performance-pistol-new-gun-review-2/</a>.
\88\ Nick Leghorn, TTAG 2014 Editor's Choice Award--Most
Influential Personality of the Year: Alex Bosco, SB Tactical (Dec.
22, 2014), <a href="https://web.archive.org/web/20150206045745/http://www.sb-tactical.com/ttag-2014-personality-of-the-year-alex-bosco/">https://web.archive.org/web/20150206045745/http://www.sb-tactical.com/ttag-2014-personality-of-the-year-alex-bosco/</a> (emphasis
in the original).
---------------------------------------------------------------------------
SB Tactical has posted articles that explained how short-barreled
rifle performance could be obtained from a pistol equipped with a
``stabilizing brace.'' \89\ In 2016, SB Tactical also presented a
YouTube video advertisement describing shooting techniques for a pistol
attached with their ``brace'' device.\90\ As shown below, the video
included demonstrations of multiple ``stabilizing brace'' models that
ATF had not evaluated.
---------------------------------------------------------------------------
\89\ David Higginbotham, SIG SAUER P556, SHORT BARREL RIFLE
PERFORMANCE FROM A PISTOL, SB Tactical (Jun. 16, 2014), <a href="https://web.archive.org/web/20150307044415/http://www.sb-tactical.com/sig-sauer-p556-short-barrel-rifle-performance-from-a-pistol-2">https://web.archive.org/web/20150307044415/http://www.sb-tactical.com/sig-sauer-p556-short-barrel-rifle-performance-from-a-pistol-2</a>; David M
Fortier, Shotgun News July 20th 2014--Always wanted a Short Barrel
Rifle but won't jump through the hoops? Here's your solution, SB
Tactical (July 22, 2014), <a href="https://web.archive.org/web/20150306211245/http://www.sb-tactical.com/shotgun-news-july-20th-2014">https://web.archive.org/web/20150306211245/http://www.sb-tactical.com/shotgun-news-july-20th-2014</a>.
\90\ SB Tactical, Pistol Stabilizing Brace Shooting Techniques,
YouTube (July 29, 2016), <a href="https://www.youtube.com/watch?v=FoTHRWsCz64">https://www.youtube.com/watch?v=FoTHRWsCz64</a>.
---------------------------------------------------------------------------
BILLING CODE 4410-FY-P
[[Page 6504]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.032
[[Page 6505]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.033
BILLING CODE 4410-FY-C
In demonstrating these various firing techniques of a firearm
equipped with its ``stabilizing brace'' models, the manufacturer's
video clearly shows it informed the public about and marketed its
``brace'' devices for uses that go far beyond the original design and
intent of the ``brace'' as explained to ATF with the sample it
submitted for evaluation. Further, the online marketing material
showcasing these various shooting techniques highlight key objective
design features, as described in this rule, that are consistent with a
rifle that is designed, made, and intended to be fired from the
shoulder. Even though the ``brace'' manufacturer notably did not
include footage of a firearm with its ``stabilizing brace'' being fired
from the shoulder, the video clearly demonstrates shooting of firearms
equipped with its ``stabilizing braces'' from the sternum. This firing
technique involves the shooter pressing the rear surface area against
the shooter's body (on the sternum near the shoulder) to operate the
firearm. Were the shooter to merely shift the firearm a few inches, the
rear surface area provided by the ``stabilizing brace'' would
effectively allow for firing from the shoulder. This technique
indicates to the general community the ease and practicality of
shouldering firearms equipped with ``stabilizing braces.'' Similarly,
the video also demonstrates shooters using a ``cheek welding'' firing
technique where the objective design features of a rifle are also
evident. Based on the rear surface area provided by the ``stabilizing
brace'' and the alignment of the sights, as seen in the video, the
shooter can easily shoulder fire the weapon.
Further, at least one firearms manufacturer advertised the SB47, a
later version of the SB15 ``brace,'' as a shoulder stock and stated
that no short-barreled rifle NFA tax stamp
is required.\91\ SB Tactical also posted an advertisement that the SB47
is ``ATF approved for everybody[;] the SB47 does not require any
special permits doctors [sic] notes or SBR tax stamp!'' \92\ Notably,
the SB47 was not the same design as the original brace. The SB47 design
was to be attached to an AK-type pistol rather than an AR-type pistol.
SB Tactical posted a review of the SB47 where the reviewer generally
stated that his first impression was that a firearm equipped with a
SB47 is a short-barreled rifle, even though he stated that the reason
for creating the SB15 and SB47 was to assist disabled veterans.\93\
---------------------------------------------------------------------------
\91\ Century International Arms Inc., SB47 Stabilizing Brace
(Sept. 6, 2013), <a href="https://web.archive.org/web/20130906231317/http://centuryarms.biz/proddetail.asp?prod=OT1648">https://web.archive.org/web/20130906231317/http://centuryarms.biz/proddetail.asp?prod=OT1648</a>.
\92\ SB Tactical, SB47 (Mar. 17, 2015), <a href="https://web.archive.org/web/20150317032957/">https://web.archive.org/web/20150317032957/</a> <a href="http://www.sb-tactical.com/products/sb47/">http://www.sb-tactical.com/products/sb47/</a>.
\93\ SB Tactical, Gear Review: SB Tactical SB-47 Stabilizing
Brace (Mar. 15, 2014), <a href="https://web.archive.org/web/20150307044345/">https://web.archive.org/web/20150307044345/</a>
<a href="http://www.sb-tactical.com/gear-review-sb-tactical-sb-47-stabilizing-brace-3">http://www.sb-tactical.com/gear-review-sb-tactical-sb-47-stabilizing-brace-3</a> (``I had seen this piece of equipment online and
immediately thought it was an SBR work-around.''); id. (stating that
the original ``brace'' device ``was designed to allow a veteran who
lost the ability to do the things he loved, recapture that joy,''
but acknowledging the ``brace'' device is ``being misused as a[n]
SBR stock'').
---------------------------------------------------------------------------
[[Page 6506]]
Numerous videos also demonstrate individuals using the SB15 and
SB47 ``stabilizing brace'' from the shoulder.\94\ Notably, some of
these videos referenced a 2014 ATF letter in which FATD stated that
using ``braces'' improperly (i.e., shouldering them) would not
constitute a design change.\95\ In at least one video, an individual
generally stated that it was lawful to shoulder the firearm and he knew
what the ``stabilizing brace'' was for, i.e., shouldering, but had not
said it publicly until now because he did not want to be ``that guy''
prior to the 2014 letter.\96\ These online materials demonstrate a
general recognition by the firearms industry and certain firearms
owners that a firearm equipped with an SB15 or SB47 ``brace'' included
objective design features that indicated the firearm is a rifle
designed and intended to be fired from the shoulder, even though such
weapons had not been manufactured or transferred in accordance with the
requirements of the NFA (depending on the barrel length). Numerous
other online materials for ``stabilizing braces,'' including for
Shockwave Blade, Strike Industries, and Gear Head Works Tailhook,
display individuals using firearms marketed as pistols but shouldered
as short-barreled rifles.\97\ Additionally, other publications and
online videos are available regarding the use of various ``braces'' to
fire from the shoulder, further demonstrating that firearms equipped
with these ``braces'' were and are being used extensively as short-
barreled rifles.\98\
---------------------------------------------------------------------------
\94\ Tactiholics, ATF Compliant Sig SB15 Stabilizing Brace: Get
One!--Tacitoholics<SUP>TM</SUP>, YouTube (Nov. 19, 2014), <a href="https://www.youtube.com/watch?v=rPalYGJhwbc">https://www.youtube.com/watch?v=rPalYGJhwbc</a>; BigDaddyHoffman1911, AK 47
Pistol with SB-47 Brace, YouTube (July 27, 2014), <a href="https://www.youtube.com/watch?v=zx-5IiM7iw0">https://www.youtube.com/watch?v=zx-5IiM7iw0</a>; The Late Boy Scout, The Awesome
M85 AK Pistol with SB-47 Stabilizing Brace, YouTube (Sept. 29,
2014), <a href="https://www.youtube.com/watch?v=CKE2ELSJtak">https://www.youtube.com/watch?v=CKE2ELSJtak</a>; Jordan Winkler,
Century Arms C39V2 AK Pistol w/SB Tactical Brace Review, YouTube
(May 10, 2017), <a href="https://www.youtube.com/watch?v=l0w8sp43t8M">https://www.youtube.com/watch?v=l0w8sp43t8M</a>.
\95\ In the letter, FATD advised that it does not classify
weapons based on how an individual uses a weapon and that firing the
pistol from the shoulder did not reclassify it as a short-barreled
rifle. FATD further mentioned that some ``brace'' designs, such as
the Sig Stability Brace, had not been classified as a shoulder stock
and that therefore, using those ``braces'' improperly would not
constitute a design change or change the classification of the
weapon. Letter from ATF #301737 (Mar. 5, 2014).
\96\ Military Arms Channel, Shouldering a Handgun with a Sig
SB15 Brace, Military Arms Channel (Apr. 7, 2014), <a href="https://www.youtube.com/watch?v=qNMLO18kl98">https://www.youtube.com/watch?v=qNMLO18kl98</a>.
\97\ Foghorn, Gear Review: Shockwave Technologies Blade Pistol
Stabilizer, The Truth About Guns (Oct. 9, 2015), <a href="https://www.thetruthaboutguns.com/gear-review-shockwave-technologies-blade-pistol-stabilizer/">https://www.thetruthaboutguns.com/gear-review-shockwave-technologies-blade-pistol-stabilizer/</a>; Brandon Harville, 7 Best AR-15 & AK Pistol
Braces [Hands-On & Video], PewPew Tactical (June 2, 2021), <a href="https://www.pewpewtactical.com/best-ar-pistol-braces/">https://www.pewpewtactical.com/best-ar-pistol-braces/</a> (``It might look and
function like a rifle, but thanks to the fact that AR-15 pistols
don't come built with a stock, they're legally classified as
pistols--giving them a full pardon from inconvenient NFA
restrictions.'' (emphasis omitted)); FocusTripp, Best AR-15 Pistol
Brace Under $40--Foxtrox Mike VS KAK Shockwave Blade VS Trinity
Force, YouTube (June 15, 2019), <a href="https://www.youtube.com/watch?v=IJQG4liOlRk">https://www.youtube.com/watch?v=IJQG4liOlRk</a>; Hoplopfheil, Shockwave Blade Brace 1.0 vs 2.0
Comparison, YouTube (Jan. 27, 2020), <a href="https://www.youtube.com/watch?v=W5-C6efbN_s">https://www.youtube.com/watch?v=W5-C6efbN_s</a>; Tactical Hyve, Navy SEAL ``Coch'' Talks About
His AR Pistol Setup, YouTube (Sept. 16, 2020), <a href="https://www.youtube.com/watch?v=Zfjdavuh3vc">https://www.youtube.com/watch?v=Zfjdavuh3vc</a>; AtlanticFirearms, Draco AK47
Pistol with Brace at Atlantic Firearms, YouTube (Aug. 9, 2019),
<a href="https://www.youtube.com/watch?v=JzxTs1-MwKI">https://www.youtube.com/watch?v=JzxTs1-MwKI</a>; KB32 Tactical, AR15
Pistol 10.5 Inch 100 Yard Test!! How'd She Do????, YouTube (May 20,
2017), <a href="https://www.youtube.com/watch?v=Pab-p6JcwL0">https://www.youtube.com/watch?v=Pab-p6JcwL0</a>; 704 Tactical,
Strike Industries AR Pistol Stabilizer Brace, YouTube (Jun. 4,
2020), <a href="https://www.youtube.com/watch?v=Slf_IBxIzLg">https://www.youtube.com/watch?v=Slf_IBxIzLg</a>; WorkTheTrigger,
Strike Industries Pistol Stabilizing Brace, YouTube (May 19, 2020),
<a href="https://www.youtube.com/watch?v=BbldU84PQZU">https://www.youtube.com/watch?v=BbldU84PQZU</a>; Jeremy S., Gear Review:
Gear Head Works Tailhook Pistol Braces (New Release), The Truth
About Guns (Dec. 31, 2016), <a href="https://www.thetruthaboutguns.com/gear-review-gear-head-works-tailhook-pistol-braces/">https://www.thetruthaboutguns.com/gear-review-gear-head-works-tailhook-pistol-braces/</a> (``From the rear, if
you're thinking `gosh, that looks like it would be a great stock'
you're darn right. As my CZ Scorpion Evo is a registered SBR I could
legally shoulder the Tailhook and, I gotta say, the flat back and
solid aluminum build make for as good of a shoulder stock as
anything.''); sootch00, Gear Head Works Tail Hook AR Pistol Brace,
YouTube (Mar. 16, 2017), <a href="https://www.youtube.com/watch?v=FWXXMwa-Xk8">https://www.youtube.com/watch?v=FWXXMwa-Xk8</a>; Military Arms Channel, B&T GHM9 9mm Pistol with Tailhook
Brace!, YouTube (Jan. 9, 2018), <a href="https://www.youtube.com/watch?v=BnEk9PkMu84">https://www.youtube.com/watch?v=BnEk9PkMu84</a>.
\98\ TFB TV, Testing the Upgraded FS1913 Folding Brace, YouTube
(May 12, 2020), <a href="https://www.youtube.com/watch?v=-_VAJordA68">https://www.youtube.com/watch?v=-_VAJordA68</a>
(individual testing a Ruger PC Charger with SBTactical FS1913
folding brace); Pew Pew Tactical, Best AR-15 Pistol Braces: Truck
Guns Ahoy!, YouTube (July 2, 2019), <a href="https://www.youtube.com/watch?v=uu2piCz8ThI">https://www.youtube.com/watch?v=uu2piCz8ThI</a> (stating that a firearm with a pistol brace is
an alternative to building a short-barreled rifle and obtaining a
tax stamp and reviewing the SB Mini, Shockwave Blade, SBM4, SBA4,
SBA3, and the SBPDW while firing all the firearms from the
shoulder); JPRifles, SBA3 Pistol Stabilizing Brace--New Product
Showcase--FEBRUARY 2019, YouTube (Feb. 1, 2019), <a href="https://www.youtube.com/watch?v=4qaJpDzOyjQ">https://www.youtube.com/watch?v=4qaJpDzOyjQ</a> (reviewing the SBA3 stabilizing
brace demonstrating fired from the shoulder only); Ballistic Staff,
CZ Scorpion Micro Folder: CZ Finally Adds Folding Brace to Popular
Pistol, Athlon Outdoors Network (Feb. 5, 2020), <a href="https://www.ballisticmag.com/cz-scorpion-micro-folder-pistol/">https://www.ballisticmag.com/cz-scorpion-micro-folder-pistol/</a> (reviewing
folding brace on CZ Scorpion pistol); ClassicFirearms, You Can Have
A Brace On A Glock?! (Recover 20/20 Brace), YouTube (July 28, 2021),
<a href="https://www.youtube.com/watch?v=seBxysheK_4">https://www.youtube.com/watch?v=seBxysheK_4</a> (firing a Glock pistol
with a ``stabilizing brace'' from the shoulder); Mrgunsngear
Channel, SB Tactical SBPDW Review: Best Adjustable Brace For AR-15
Pistols?, YouTube (Feb. 24, 2018), <a href="https://www.youtube.com/watch?v=c9ueVMFK-q0">https://www.youtube.com/watch?v=c9ueVMFK-q0</a> (demonstrating SBPDW being fired from the
shoulder); ClassicFirearms, Manufacturer Review SB Tactical, YouTube
(Feb. 14, 2022), <a href="https://www.youtube.com/watch?v=mC3M8T4lLSM">https://www.youtube.com/watch?v=mC3M8T4lLSM</a>
(reviewing SBA3, SBA4, SBPDW brace while firing from the shoulder
and citing prior ATF letter which approves incidental shouldering);
Mrgunsngear Channel, SB Tactical SBA3 vs. SBA4: Which Is The Best
AR-15 Pistol Brace?, YouTube (Dec. 5, 2019), <a href="https://www.youtube.com/watch?v=PWBHs2W8bxQ">https://www.youtube.com/watch?v=PWBHs2W8bxQ</a> (comparing the SBA3 and SBA4
while firing from the shoulder); Fire Mountain Outdoors, SB Tactical
PDW pistol brace overview YouTube (Jan. 23, 2018), <a href="https://www.youtube.com/watch?v=zPERkIXY2dM">https://www.youtube.com/watch?v=zPERkIXY2dM</a> (demonstrating the SBPDW as
intended and shouldered); TheGunCollective, I SWEAR IT'S NOT A
STOCK--FLUX Defense Glock Pistol Brace, YouTube (May 17, 2019),
<a href="https://www.youtube.com/watch?v=4PL5fUYA_sg">https://www.youtube.com/watch?v=4PL5fUYA_sg</a> (firing a Glock with a
``stabilizing brace'' from the shoulder).
---------------------------------------------------------------------------
The firearms industry's and community's prevalent use of the
firearms as rifles, as highlighted in these videos, underscores why the
Department has concluded that the assessment of whether a firearm falls
within the statutory definition of a ``rifle'' should incorporate the
objective design features of the firearm. Also, the recognition by
firearms manufacturers and owners that ``stabilizing brace'' devices
circumvented the NFA strongly supports the Department's decision to re-
evaluate its analysis of firearms equipped with ``stabilizing braces.''
Accordingly, the Department has determined the best approach is not to
focus solely on stated intent or on the possibility that weapons with a
``brace'' might, in some circumstances, be fired with one hand. Rather,
it is appropriate and necessary for the Department to clarify through
this rulemaking the objective design features and other factors that
indicate when a weapon that is equipped with an accessory, component,
or other rearward attachment (e.g., a ``stabilizing brace'') is
designed, made, and intended to be fired from the shoulder.
Lastly, the Department notes that neither the rule nor the relevant
statutes ban ``stabilizing braces'' or the use of ``stabilizing
braces'' on pistols. Indeed, this rule does not impose any new legal
obligations on owners of ``stabilizing braces'' at all, as any
obligations for these owners result only from the NFA and the GCA.
Instead, this rule merely conveys more clearly to the public the
objective design features and other factors that indicate a weapon is
in fact a firearm or short-barreled rifle under the relevant statues.
Hence, an individual may continue to use such a device but may be
subject to certain requirements depending on the firearm's objective
design features and other factors, as explained in this final rule.
[[Page 6507]]
ii. APA--Private Classification Letters
Comments Received
Commenters said ATF's position is not clear because of the varying
interpretations and different responses that ATF had provided through
private letter classifications. They also stated that this past
inconsistency results in the agency undermining its own legitimacy when
it makes ``a capricious and arbitrary change . . . after millions of
Americans have legally purchased [`stabilizing braces'] with the
understanding that ATF had approved them.'' Similarly, another
commenter stated that it is difficult for the public to rely on ATF
classifications for guidance because of the ``vast variations in
submissions'' and the fact that ``if even the smallest detail is
changed (such as adding different sights, or a different optic), the
entire firearm's classification could be inadvertently changed.''
(Quotation marks and emphasis omitted.)
Department Response
The Department does not agree with commenters that publishing this
rule is arbitrary or capricious even if it results in prior
classifications being no longer valid. As discussed above, ATF makes
classifications based on the configuration of a particular firearm, as
submitted to ATF, because attempting to make more general
classifications may result in the erroneous application of the relevant
statutes. There are many variations in firearms because of differences
in weight, length, rear surface area, adjustability of a rearward
attachment, length of pull, and sights or scopes, for example. Because
private letter classifications are dependent on the specific
configuration of the firearm, there may be different classifications
for each unique firearm submitted, even if the weapons are outwardly
similar. Moreover, some individuals and manufacturers were using ATF
classification letters from a different device and applying that
classification to a new device. This rule informs the public of the
best interpretation of and the proper inquiry under the statutes by
identifying relevant objective design features and other factors that
are to be considered when determining how the statutory provisions
apply to firearms equipped with ``stabilizing braces'' or other
attachments. As discussed in this rule and the NPRM, ATF's review of
the objective characteristics of the device is supported by Federal
courts. See Brandon, 826 F.3d at 601-02. Additionally, ATF is
publishing information simultaneously with this rule that will inform
the public of both (1) common weapon platforms with attached
``stabilizing brace'' designs and (2) examples of commercially
available firearms equipped with a ``stabilizing brace'' that are
short-barreled rifles.
iii. APA--Reliance by Public
Comments Received
According to many commenters, ATF has approved the use of ``a
shooting support with a pistol'' since at least 2006, and further, that
pistol-braced firearms and pistol-brace accessories have been widely
available and approved by ATF for sale since at least 2012. Commenters
stated that millions of citizens were relying on ATF's guidance when
making their purchase and took ATF at its word when the agency approved
the installation of so-called ``stabilizing braces'' onto firearms in
2012. Another commenter contended that the proposed rule represented a
clear change in position for ATF on ``stabilizing braces.'' The
commenter went on to say that ``the Supreme Court recently made clear
that an agency action may be `arbitrary and capricious' because it
fails to account for the reliance interests of those affected by the
action.'' See Dep't of Homeland Sec. v. Regents of the Univ. of
California, 140 S. Ct. 1891, 1913-15 (2020) (``Regents''). The
commenter argued that the proposed rule could put millions of otherwise
law-abiding Americans in danger of Federal criminal prosecution.
Department Response
The Department disagrees that the rule is arbitrary in that it
failed to account for the reliance interests of those affected by the
action. See Regents, 140 S. Ct. at 1913-15. In Regents, the Supreme
Court considered the recission of the Deferred Action for Childhood
Arrivals programs and explained that, when an agency changes course
from longstanding polices, reliance interests should be taken into
account. Id. at 1913 (citing Encino Motocars v. Navarro, 579 U.S. 211,
222 (2016)). The Supreme Court further clarified that the agency was
not required to consider all policy alternatives but was required to
assess whether there were reliance interests, determine whether they
were significant, and weigh any such interests against competing policy
concerns. Id. at 1915.
While the Department acknowledges previous inconsistencies and the
resulting confusion regarding ATF's private and public guidance on
firearms equipped with ``stabilizing brace'' devices, ATF never
declared that the marketing of a device as a ``stabilizing brace'' when
equipped on a firearm removes that firearm from the ambit of the NFA.
Additionally, ATF's private classification letters were limited to the
particular firearm configured with the particular device that it
received from an individual, and its analysis was based on the
objective design features of that device or firearm in addition to
consideration of the individual's purported intent. Therefore, an
individual's reliance on a classification for another person's device
or firearm transfers the agency's specific analysis to a different
context and hence is misplaced. Similarly, an individual's reliance on
the statements of a ``stabilizing brace'' manufacturer or a firearms
manufacturer--especially statements that may misrepresent the
government's position--does not represent reliance on a government
policy and hence is misplaced. The Department also notes that
commenters are mistaken in their assertion that ATF has approved the
use of ``a shooting support with a pistol'' since at least 2006. ATF's
first response to an inquiry about ``stabilizing'' braces was in 2012,
as described in section II.B of this preamble.
As it pertains to an individual's reliance on prior classification
letters, ATF has notified the public that ``classifications are subject
to change if later determined to be erroneous or impacted by subsequent
changes in law or regulations.'' \99\ As previously discussed, ATF has
discretion to correct its erroneous interpretations and rectify a
firearms classification error, as occurred in many of ATF's
``stabilizing brace'' classifications. Thus, because of ATF's inherent
discretion to correct its erroneous interpretations, and because ATF
has explicitly provided notice that it has such discretion, any
potential reliance interest is reduced.
---------------------------------------------------------------------------
\99\ ATF, National Firearms Handbook, sec. 7.2.4.1 (2009),
<a href="https://www.atf.gov/firearms/docs/guide/atf-national-firearms-act-handbook-atf-p-53208/download">https://www.atf.gov/firearms/docs/guide/atf-national-firearms-act-handbook-atf-p-53208/download</a>.
---------------------------------------------------------------------------
Moreover, contrary to the assumption of commenters, this rule bans
nothing. The Department has provided several courses of conduct that a
person in possession of a firearm that is regulated by the NFA may
select, including registration of the device in the NFRTR within a
defined time period, which would permit an individual to lawfully
possess the firearm. Additionally, the individual may reconfigure the
firearm to remove it from the scope of the NFA (e.g., the removal and
replacement of a barrel of less than 16 inches with a longer barrel)
and maintain possession of the firearm. These alternatives
[[Page 6508]]
demonstrate that the Department has considered the reliance interests
of individuals and that any impact of this rule on individuals'
perceived reliance interests will be minimal.
It is true that ``the APA requires an agency to provide more
substantial justification when . . . its prior policy has engendered
serious reliance interests that must be taken into account.'' Perez v.
Mortg. Bankers Ass'n, 575 U.S. 92, 106 (2015) (quoting FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 515, (2009)). But in light of
the options provided for compliance with the relevant statutes, the
alleged reliance interest is minimal. The only interest identified is
the avoidance of the NFA's making and transfer taxes, but these taxes
will not be applied retroactively. Thus, any potential reliance
interests are minimal because, in its enforcement discretion, the
Department has determined that individuals and FFLs will not be
required to pay these taxes. And any interest in avoiding the minor
burden associated with registration of a rifle is also not significant.
That is both because of the minimal time and expense required for
registration and because possession of an unregistered rifle violates
the law. See Regents, 140 S. Ct. at 1914 (noting that the Department of
Homeland Security could have properly found that ``reliance interests
in benefits that [the agency] views as unlawful are entitled to no or
diminished weight''). After carefully considering possible reliance
interests, the Department thus finds that any reliance interests are
outweighed by the need to properly and consistently apply the relevant
statutes.
Moreover, an individual's reliance on ATF's prior positions cannot
outweigh the effective enforcement of Federal firearms laws pursuant to
the best interpretation of the plain language of the relevant statutes.
Here, the Department seeks to inform the public of the objective
criteria and other factors it will consider to determine when a firearm
is designed, made, and intended to be fired from the shoulder so that
the Department can effectively enforce the NFA and GCA and protect
public safety. As discussed in this preamble, the NFA and GCA regulate
short-barreled rifles by imposing additional tax, interstate-
transportation, and interstate-transfer restrictions because Congress
deemed them to be dangerous and unusual weapons. If certain firearms
equipped with ``stabilizing brace'' devices are short-barreled rifles
under the statutory definition, then the Department cannot permit the
proliferation of the weapons in circumvention of the NFA.
iv. APA--Lack of Data
Comments Received
Several commenters highlighted a lack of data to justify the rule
and said that ATF ``provides no proof that these weapons are being
fired from the shoulder.'' For example, one commenter stated the rule
did not provide any analysis on the frequency with which pistol-braced
firearms or short-barreled shotguns are being used in crime in order to
justify the rule.
Department Response
The Department disagrees that there is a lack of data to justify
the rule. Because, as discussed above, short-barreled rifles are among
firearms historically considered by Congress to be unusual and
dangerous, the agency is required to implement the NFA and ensure that
firearms are properly classified and regulated. As discussed in the
NPRM, there have been at least two mass shooting incidents where the
shooters reportedly shouldered their weapons by using purported
``stabilizing braces'' as stocks,\100\ killing a total of 19
people.\101\ The Department need not wait for such incidents to become
more frequent before taking steps to stop them. See, e.g., Stilwell v.
Off. of Thrift Supervision, 569 F.3d 514, 519 (DC Cir. 2009)
(``[A]gencies can, of course, adopt prophylactic rules to prevent
potential problems before they arise. An agency need not suffer the
flood before building the levee.'') Further, as mentioned in section
IV.A.2.a of this preamble, ATF has traced numerous firearms equipped
with a ``stabilizing brace'' in connection with crimes in recent years,
suggesting that weapons with ``brace'' devices are being used to commit
crimes even apart from highly publicized incidents such as those in
Boulder and Dayton.
---------------------------------------------------------------------------
\100\ See, e.g., Emily Davies, Tim Craig, and Hannah Natanson,
Ex-girlfriend Says Dayton Shooter Heard Voices, Talked about `dark,
evil things', The Washington Post (Aug. 5, 2019) <a href="https://www.washingtonpost.com/national/police-chief-it-seems-to-defy-believability-that-dayton-shooter-would-kill-his-own-sister/2019/08/05/920a895c-b79e-11e9-b3b4-2bb69e8c4e39_story.html">https://www.washingtonpost.com/national/police-chief-it-seems-to-defy-believability-that-dayton-shooter-would-kill-his-own-sister/2019/08/05/920a895c-b79e-11e9-b3b4-2bb69e8c4e39_story.html</a> (``Dayton police
spokeswoman Cara Zinski-Neace said Monday that Betts had modified
his weapon so that he could stabilize it on his shoulder while
firing. Betts had a `pistol version' of an AR-15-style rifle, she
said, not designed to be shouldered. But Betts added a brace.'');
Melissa Macaya et al., 10 killed in Colorado grocery store shooting,
CNN (updated Mar. 23, 2021), <a href="https://www.cnn.com/us/live-news/boulder-colorado-shooting-3-23-21/h_0c662370eefaeff05eac3ef8d5f29e94">https://www.cnn.com/us/live-news/boulder-colorado-shooting-3-23-21/h_0c662370eefaeff05eac3ef8d5f29e94</a>
(reporting that the firearm used in a shooting that killed 10 was an
AR-15 pistol with an ``arm brace'').
\101\ See supra note 67.
---------------------------------------------------------------------------
d. Violates the Americans with Disabilities Act (``ADA'') or the
Rehabilitation Act of 1973
Comments Received
Many commenters asserted that this rule violates the ADA or the
Rehabilitation Act of 1973 and deprives thousands of gun owners who
have disabilities from the joy of shooting their lawfully owned
firearms. Specifically, commenters stated that ``ATF is prohibited from
making such discriminatory rules under [ the ADA]'' and that section
504 provides in part that ``no qualified individual with a disability .
. . shall be excluded from, denied the benefits of, or be subjected to
discrimination under'' any program or activity that . . . is conducted
by any Executive agency. Several other commenters stated that
``stabilizing braces'' were first made and submitted for classification
to assist persons with disabilities, and that ATF did not consider the
impact the rule would have on disabled Americans. Another commenter
stated that ATF's rulemaking, i.e., the purported ``activity''
conducted by an Executive agency, ``discriminates against disabled
persons by arbitrarily limiting design characteristics [of `braced'
pistols] that enhance the effectiveness of the brace design for the
disabled person.'' The commenter stated that there is no evidence that
any of the restrictions--weight, adjustability, sights, overall length,
length of pull--were determined after consideration of the needs of the
disabled community and that these restrictions would adversely impact
the disabled community, deny them the benefit of the product intended
for them, and discriminate against them in violation of the ADA.
Other commenters said this rule would limit the future availability
of ``stabilizing braces'' to the disabled community if the effect of
the rule is to reclassify millions of ``stabilizing brace''-equipped
pistols as being subject to the NFA.
Department Response
The Department disagrees with commenters that the rule would
violate the ADA. As an initial matter, the ADA applies to State and
local governments; it does not apply to the Executive Branch of the
Federal Government. See 42 U.S.C. 12131(1) (defining ``public entity''
as any State or local government; any department, agency, special
purpose district, or other instrumentality of a State or States or
local government; and the National Railroad Passenger Corporation, and
any commuter authority). Accordingly,
[[Page 6509]]
because ATF is a Federal agency that is not subject to the ADA, the
commenters' assertion that this regulation would violate the ADA is
incorrect. In addition, commenters' ADA objections to the rule are
misplaced because the rule does not itself ban or regulate any
particular devices; instead, the rule articulates the Department's best
interpretation of the relevant statutory provisions, which are the
source of any restrictions or regulations on certain firearms.
In contrast to the ADA, the Rehabilitation Act of 1973 does apply
to the Federal Government. However, this rule likewise does not violate
that Act. Section 504 of the Rehabilitation Act prohibits the
discrimination ``solely by reason of disability'' in Federally
conducted programs and activities. 29 U.S.C. 794(a). The Rehabilitation
Act ``requires that people who are disabled within the meaning of the
Act have meaningful access to the federal government's programs or
activities.'' National Ass'n of the Deaf v. Trump, 486 F. Supp. 3d 45,
57 (D.D.C. 2020) (quotation marks omitted). The ``relevant inquiry is
whether those with disabilities are as a practical matter able to
access benefits to which they are legally entitled.'' Id. (quotation
marks omitted). As applied here, the classification of a firearm is not
a ``program or activity'' as defined in section 794(b) of the Act. See
29 U.S.C. 794(b) (listing covered programs and activities). Second, no
one is legally entitled to violate the NFA. Third, as explained below,
neither the statute nor the rule denies or impedes anybody meaningful
access to anything.
This rule does not restrict the use of a ``stabilizing brace.'' A
weapon with a ``stabilizing brace'' may be possessed without any NFA
restrictions if that weapon falls outside the NFA's definition of
``firearm,'' (e.g., the weapon is not designed, made, and intended to
be fired from the shoulder); thus, even after issuance of this rule,
persons with disabilities will be able to purchase and use certain
``stabilizing braces'' without regulation under the NFA. Moreover, even
a weapon with a ``stabilizing brace'' that falls within the definition
of ``firearm'' in the NFA may be possessed and used if the statutory
requirements are followed. All individuals who possess such a firearm
may register that firearm in the NFRTR. There are other options
available, discussed in section V.B of this preamble, for all
individuals affected by the NFA's restrictions so they can continue to
use a ``stabilizing brace'' while remaining in compliance with the law.
Finally, persons with disabilities are not denied benefits or
subject to discrimination under this rule ``solely by reason of their
disability.'' This rule articulates the Department's best
interpretation of the relevant statutory provisions, and ATF interprets
and uniformly applies those provisions to every person. Notably, it
appears that no commenter provided any specific information to suggest
that this rule, or the NFA's requirements, would cause qualified
individuals with disabilities, solely by reason of their disability, to
be excluded from the participation in, subjected to discrimination
under, or denied the benefits of any program or activity of ATF.
Accordingly, there is nothing in the record to suggest that this rule
would raise concerns under the Rehabilitation Act of 1973, and the
Department disagrees that this rule ``adversely impact[s] the disabled
community, or [denies] them the benefit of the product intended for
them.''
2. Definition of ``Rifle''
Comments Received
The Attorney General of Ohio stated that DOJ's interpretation of
``rifle'' was arbitrary and had no basis in the statutory text. Another
commenter argued that the definitions of ``rifle'' in the GCA and NFA
are inconsistent and that ATF's interpretation in the NPRM confuses the
existing regulations by introducing arbitrary and subjective factors.
Thus, the commenters stated that ATF's claim of having proposed this
rule to ``clarify when a rifle is intended to be fired from the
shoulder'' is impossible to decipher. One commenter also stated that
ATF's claim of clarifying when a rifle is intended to be fired from the
shoulder is misleading to the public, and, thus, the public would
misunderstand the purpose of the rule. The same commenter stated that
there was no need for this purported amendment of the statutory
definition of ``rifle,'' as the rule should focus on approving or
disapproving ``stabilizing braces. Another commenter noted that the
term ``peripheral accessories''--a term used in the proposed regulatory
text--lacked a proper definition.
Department Response
The Department respectfully disagrees with the characterization
that this interpretation of the term ``rifle'' is arbitrary and without
statutory basis. Congress, in drafting the GCA and NFA, purposefully
defined ``rifle'' broadly. Specifically, the GCA defines the term
``rifle'' as ``a weapon designed or redesigned, made or remade, and
intended to be fired from the shoulder and designed or redesigned and
made or remade to use the energy of an explosive to fire only a single
projectile through a rifled bore for each single pull of the trigger.''
18 U.S.C. 921(a)(7). The NFA defines the term ``rifle'' as ``a weapon
designed or redesigned, made or remade, and intended to be fired from
the shoulder and designed or redesigned and made or remade to use the
energy of the explosive in a fixed cartridge to fire only a single
projectile through a rifled bore for each single pull of the trigger,
and shall include any such weapon which may be readily restored to fire
a fixed cartridge.'' 26 U.S.C. 5845(c). Despite slightly different
wording, both statutes share a common focus in defining the term
``rifle'' in that whether a weapon is a rifle depends primarily on
whether it is designed, made, and intended to be fired from the
shoulder. This rule provides a clear explanation and guidance to both
individual owners and manufacturers regarding the objective design
features and other factors that indicate whether a firearm equipped
with a ``stabilizing brace'' or other rearward attachment is a
``rifle'' designed, made, and intended to be fired from the shoulder.
Likewise, the Department disagrees with commenters that it is
misleading the public when it claims that the purpose of the rule is to
clarify when a rifle is designed, made, and intended to be fired from
the shoulder. Due to inconsistent advice regarding how the use of a
``stabilizing brace'' device affected a classification and the
resulting public confusion on the proper application of the NFA and GCA
to firearms with ``stabilizing braces,'' as described in the NPRM and
this final rule, the Department seeks to inform the industry and public
on the best interpretation regarding when ``a firearm is designed . . .
, made . . . , and intended to be fired from the shoulder'' within the
meaning of the relevant statutory terms.
Also, the Department disagrees that there is no need to clarify the
term ``rifle'' and that ATF should focus on only approving or
disapproving ``stabilizing braces.'' As described earlier, the GCA and
NFA regulate ``firearms'' and generally do not regulate the
classification or use of individual components or accessories, standing
alone. Accordingly, ATF generally does not classify components or
accessories, unconnected to a particular firearm, under the GCA and
NFA. However, components or accessories, when attached to a firearm,
can affect the classification of a firearm because: (1) a component or
an accessory's likely use
[[Page 6510]]
in the general community may be relevant in assessing the
manufacturer's or maker's purported intent with respect to the design
of a firearm; and (2) the design of a component or an accessory may
result in a firearm falling within a particular statutory definition.
Two examples would be: (1) the attachment of a secondary forward grip
to a ``pistol,'' where the resulting firearm would no longer be
designed to be held and fired with a single hand; and (2) a wallet
holster where the handgun can be fired while inserted, thus changing
the classification of these handguns into an ``any other weapon.'' See
26 U.S.C. 5845(e). A ``stabilizing brace,'' of which there are many
variations, is another example of an attachment that may affect the
classification of the firearm to which it is attached. The question,
however, remains whether the firearm as configured with the ``brace''
device is designed, made, and intended to be fired from the shoulder,
even if the ``stabilizing brace'' has an alternate use that effectuates
single-handed firing.
The rule's amendment to the definition of ``rifle'' does not use
the term ``accessory,'' and therefore the definition of that term is
irrelevant to this rule. Nonetheless, if the term ``accessory'' is
relevant, the Department maintains it would not be necessary to further
provide a definition for this term.\102\
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\102\ Regarding the use of the term ``accessory'' in this rule,
see supra note 35. For purposes of the AECA, ATF has consulted the
definition of ``accessory'' found in 22 CFR 121.8, which is part of
the International Traffic in Arms Regulations administered by the
Department of State.
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3. ATF Worksheet 4999
a. General Opposition to Worksheet 4999
Comments Received
There was general dissatisfaction with the proposed Worksheet 4999.
Several commenters claimed that the worksheet was designed in such a
way that the average person would not know if their handgun with an
attached ``stabilizing brace'' was an NFA firearm without first
obtaining a determination from FATD. Many commenters stated that they
found the worksheet not only to be confusing and overly complex to
determine if their firearm with a ``brace'' device is a rifle, but also
that the worksheet was ``rife with factual errors.'' The Ohio Attorney
General argued that ``the brace itself is not a `weapon,' '' so it
``cannot be a rifle on its own,'' and another commenter stated ``ATF
has clearly approached this problem solely from the standpoint of a
short-barreled rifle and has not examined what features are useful for
a pistol.'' Generally, commenters did not understand the reasoning
behind Worksheet 4999, with one commenter stating that ``[i]f the act
of shouldering a pistol does not make it a [short-barreled rifle], why
does it matter whether the stabilizing brace design encourages,
discourages, or prevents shouldering?'' They also claimed that the
worksheet, which followed a complex, mathematical formula, was a
radical departure from the GCA's definition of ``rifle.'' One commenter
said that ATF ``make[s] a weak argument on how to objectively
categorize pistols with braces versus [short-barreled rifles].''
One commenter argued that the proposed rule and Worksheet 4999
focused on factors that assess grip rather than factors that assess
shouldering. By focusing on grip, the commenter argued, ATF's reasoning
is ``divorced from statutory text.'' The commenter argued that it
unreasonable and unfair for ATF to adopt a rule that weighs indicia
that braced pistols may be fired with two hands as evidence that the
braced pistols are NFA firearms or GCA short-barreled rifles.
Department Response
As stated in the NPRM, the proposed Worksheet 4999, including the
points assigned to each criterion, was intended to facilitate the
evaluation by individuals or members of the industry of whether a
weapon incorporating a purported ``stabilizing brace'' created a rifle
and, possibly, a short-barreled rifle under the GCA and NFA. Worksheet
4999 was intended to ensure uniform consideration and application of
the statutory definition of those terms. Based on the comments
received, the Department agrees that the proposed Worksheet 4999 and
point system did not achieve these intended purposes. The Department
acknowledges commenters' concerns that the proposed worksheet was
confusing and complex but disagrees that the worksheet was ``rife with
factual errors.'' The background section, above, highlights the
objective characteristics considered in ATF's prior evaluations,
including the weight of the firearm, the length of pull, the
adjustability of the device attached to the firearm, the existence of a
forward grip, and other accessories. The Department acknowledges in
this rule that it had incorrectly included in the proposed regulatory
changes some design characteristics that are not indicative of whether
a firearm is designed and intended to be fired from the shoulder. As
described in this rule, the relevant inquiry under the NFA and GCA for
the definition of ``rifle'' is whether the firearm is designed, made,
and intended to be fired from the shoulder.
In this regard, the Department agrees with commenters like SB
Tactical who argued that the NPRM and the worksheet improperly assessed
gripping the firearm with one hand rather than assessing factors for
shouldering the firearm because gripping with one hand is not relevant
to the statutory inquiry of ``rifle.'' Indeed, the Department agrees
that the proposed analysis in the NPRM, vis-[agrave]-vis Worksheet
4999, continued to use the analysis from prior classifications that
placed improper weight on whether the ``stabilizing brace'' at issue
could be used as a ``brace'' to support single-handed fire, even if the
objective design features of the firearm equipped with the ``brace''
indicated the weapon had been designed, made, and intended to be fired
from the shoulder. In light of the comments, the final rule identifies
and selects from the NPRM only those features that are relevant in
determining whether a firearm is designed, made, and intended to be
fired from the shoulder under the GCA and NFA. Therefore, design
characteristics from the proposed Worksheet 4999 (e.g., stabilizing
support or configuration, presence of hand stops and secondary grips,
and presence of a bipod) are not included in this rule because they are
not relevant to determine whether a firearm is designed, made, and
intended to be fired from the shoulder.
The Department also agrees with commenters that a ``stabilizing
brace'' itself is not a weapon, and therefore the Department updates
the regulation to reflect how the ATF now classifies a firearm for
purposes of the GCA and NFA--i.e., by assessing the firearm with the
attached ``brace'' device as a whole. The Department disagrees that
``ATF has clearly approached this problem solely from the standpoint of
a short-barreled rifle and has not examined what features are useful
for a pistol.'' After careful review and consideration, ATF recognizes
that many prior classifications incorrectly weighed the utility of the
purported ``stabilizing brace'' to allow for effective one-handed
firing. The Department has determined, however, that the best
interpretation of the statutory definitions requires an assessment that
goes beyond the effectiveness of a ``stabilizing brace'' device for
single-handed firing. The Department's interpretation of the statutes,
as reflected in this rule, focuses on the objective design features of
the firearm and the attached ``stabilizing brace'' to ensure that
applying that
[[Page 6511]]
interpretation properly classifies firearms that are designed, made,
and i
[…truncated; see source link]Indexed from Federal Register on January 31, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.