[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 [www.gpo.gov]
[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), https://www.recoilweb.com/recoiltv-shot-show-2020-angstadt-arms-mdp9-156974.html; Gun Talk
Media, Brace or No Brace: Springfield's SAINT AR Pistol [bond] Gun
Talk, YouTube (June 16, 2018), https://www.youtube.com/watch?v=vPAmDoC0vUE; TFB TV, Ruger AR-556 Pistol: The New Budget
Baseline, YouTube (Oct. 18, 2019), https://www.youtube.com/watch?v=oFqd7JONpDU&t=2s; PersonalDefenseNet, Shouldering an AR
Pistol with a SIG Brace, YouTube (June 21, 2017), https://www.youtube.com/watch?v=DvoZxDLa-SM; Military Arms Channel, The NFA
Nut Kicker!, YouTube (Apr. 19, 2017), https://www.youtube.com/watch?v=eol8fvMfENc.
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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 (https://eforms.atf.gov) 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 www.atf.gov, 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.
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\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.
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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\
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\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), https://web.archive.org/web/20140701212719/http://sigsauer.com/CatalogProductDetails/pm400-11-fde-psb.aspx.
\22\ SB Tactical, Pistol Stabilizing Brace (Sept. 28, 2014),
https://web.archive.org/web/20140928204628/http://www.sb-tactical.com/.
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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.
---------------------------------------------------------------------------
[[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, https://vpc.org/wp-content/uploads/2019/08/Pistol-brace-ATF-letter-March-21-2017.pdf and https://www.thefirearmblog.com/blog/2017/04/24/breaking-news-update-atf-reversal-letter-sb-tactical/).
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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 TacticalTM 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),
https://web.archive.org/web/20181230110445/https://www.sb-tactical.com/product-category/brace/.
---------------------------------------------------------------------------
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\
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\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 [email protected]. 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.
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[[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\
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\64\ Letter for William Barr, Attorney General, and Regina
Lombardo, Acting Director, ATF, from Matthew Gaetz, United States
Representative, et al. (June 16, 2020), https://gaetz.house.gov/sites/gaetz.house.gov/files/wysiwyg_uploaded/For%20Web%206-16-2020%20DOJ-ATF%20pistol%20brace%20letter%20final.pdf.
\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), https://www.usatoday.com/story/news/nation/2019/08/05/dayton-shooter-used-gun-may-have-exploited-legal-loophole/1927566001/ (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),
https://www.cnn.com/us/live-news/boulder-colorado-shooting-3-23-21/h_0c662370eefaeff05eac3ef8d5f29e94 (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), https://www.atf.gov/firearms/docs/newsletter/federal-firearms-licensees-newsletter-%E2%80%93-august-1997/download.
---------------------------------------------------------------------------
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:
1 point: Minor Indicator (the weapon could be fired from the
shoulder)
2 points: Moderate Indicator (the weapon may be designed and
intended to be fired from the shoulder)
3 points: Strong Indicator (the weapon is likely designed and
intended to be fired from the shoulder)
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.
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\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.
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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.
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\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.
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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), https://www.thefirearmblog.com/blog/2013/08/18/sig-sb15-pistol-stabilizing-brace-review/ (``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), http://www.firearmsinsider.tv/gun-gear-reviews/category/Sig+Sauer (``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), https://www.gunsamerica.com/digest/sig-sauer-p556-short-barrel-rifle-performance-pistol-new-gun-review-2/.
\88\ Nick Leghorn, TTAG 2014 Editor's Choice Award--Most
Influential Personality of the Year: Alex Bosco, SB Tactical (Dec.
22, 2014), https://web.archive.org/web/20150206045745/http://www.sb-tactical.com/ttag-2014-personality-of-the-year-alex-bosco/ (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), https://web.archive.org/web/20150307044415/http://www.sb-tactical.com/sig-sauer-p556-short-barrel-rifle-performance-from-a-pistol-2; 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), https://web.archive.org/web/20150306211245/http://www.sb-tactical.com/shotgun-news-july-20th-2014.
\90\ SB Tactical, Pistol Stabilizing Brace Shooting Techniques,
YouTube (July 29, 2016), https://www.youtube.com/watch?v=FoTHRWsCz64.
---------------------------------------------------------------------------
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), https://web.archive.org/web/20130906231317/http://centuryarms.biz/proddetail.asp?prod=OT1648.
\92\ SB Tactical, SB47 (Mar. 17, 2015), https://web.archive.org/web/20150317032957/ http://www.sb-tactical.com/products/sb47/.
\93\ SB Tactical, Gear Review: SB Tactical SB-47 Stabilizing
Brace (Mar. 15, 2014), https://web.archive.org/web/20150307044345/
http://www.sb-tactical.com/gear-review-sb-tactical-sb-47-stabilizing-brace-3 (``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!--TacitoholicsTM, YouTube (Nov. 19, 2014), https://www.youtube.com/watch?v=rPalYGJhwbc; BigDaddyHoffman1911, AK 47
Pistol with SB-47 Brace, YouTube (July 27, 2014), https://www.youtube.com/watch?v=zx-5IiM7iw0; The Late Boy Scout, The Awesome
M85 AK Pistol with SB-47 Stabilizing Brace, YouTube (Sept. 29,
2014), https://www.youtube.com/watch?v=CKE2ELSJtak; Jordan Winkler,
Century Arms C39V2 AK Pistol w/SB Tactical Brace Review, YouTube
(May 10, 2017), https://www.youtube.com/watch?v=l0w8sp43t8M.
\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), https://www.youtube.com/watch?v=qNMLO18kl98.
\97\ Foghorn, Gear Review: Shockwave Technologies Blade Pistol
Stabilizer, The Truth About Guns (Oct. 9, 2015), https://www.thetruthaboutguns.com/gear-review-shockwave-technologies-blade-pistol-stabilizer/; Brandon Harville, 7 Best AR-15 & AK Pistol
Braces [Hands-On & Video], PewPew Tactical (June 2, 2021), https://www.pewpewtactical.com/best-ar-pistol-braces/ (``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), https://www.youtube.com/watch?v=IJQG4liOlRk; Hoplopfheil, Shockwave Blade Brace 1.0 vs 2.0
Comparison, YouTube (Jan. 27, 2020), https://www.youtube.com/watch?v=W5-C6efbN_s; Tactical Hyve, Navy SEAL ``Coch'' Talks About
His AR Pistol Setup, YouTube (Sept. 16, 2020), https://www.youtube.com/watch?v=Zfjdavuh3vc; AtlanticFirearms, Draco AK47
Pistol with Brace at Atlantic Firearms, YouTube (Aug. 9, 2019),
https://www.youtube.com/watch?v=JzxTs1-MwKI; KB32 Tactical, AR15
Pistol 10.5 Inch 100 Yard Test!! How'd She Do????, YouTube (May 20,
2017), https://www.youtube.com/watch?v=Pab-p6JcwL0; 704 Tactical,
Strike Industries AR Pistol Stabilizer Brace, YouTube (Jun. 4,
2020), https://www.youtube.com/watch?v=Slf_IBxIzLg; WorkTheTrigger,
Strike Industries Pistol Stabilizing Brace, YouTube (May 19, 2020),
https://www.youtube.com/watch?v=BbldU84PQZU; Jeremy S., Gear Review:
Gear Head Works Tailhook Pistol Braces (New Release), The Truth
About Guns (Dec. 31, 2016), https://www.thetruthaboutguns.com/gear-review-gear-head-works-tailhook-pistol-braces/ (``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), https://www.youtube.com/watch?v=FWXXMwa-Xk8; Military Arms Channel, B&T GHM9 9mm Pistol with Tailhook
Brace!, YouTube (Jan. 9, 2018), https://www.youtube.com/watch?v=BnEk9PkMu84.
\98\ TFB TV, Testing the Upgraded FS1913 Folding Brace, YouTube
(May 12, 2020), https://www.youtube.com/watch?v=-_VAJordA68
(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), https://www.youtube.com/watch?v=uu2piCz8ThI (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), https://www.youtube.com/watch?v=4qaJpDzOyjQ (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), https://www.ballisticmag.com/cz-scorpion-micro-folder-pistol/ (reviewing
folding brace on CZ Scorpion pistol); ClassicFirearms, You Can Have
A Brace On A Glock?! (Recover 20/20 Brace), YouTube (July 28, 2021),
https://www.youtube.com/watch?v=seBxysheK_4 (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), https://www.youtube.com/watch?v=c9ueVMFK-q0 (demonstrating SBPDW being fired from the
shoulder); ClassicFirearms, Manufacturer Review SB Tactical, YouTube
(Feb. 14, 2022), https://www.youtube.com/watch?v=mC3M8T4lLSM
(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), https://www.youtube.com/watch?v=PWBHs2W8bxQ (comparing the SBA3 and SBA4
while firing from the shoulder); Fire Mountain Outdoors, SB Tactical
PDW pistol brace overview YouTube (Jan. 23, 2018), https://www.youtube.com/watch?v=zPERkIXY2dM (demonstrating the SBPDW as
intended and shouldered); TheGunCollective, I SWEAR IT'S NOT A
STOCK--FLUX Defense Glock Pistol Brace, YouTube (May 17, 2019),
https://www.youtube.com/watch?v=4PL5fUYA_sg (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),
https://www.atf.gov/firearms/docs/guide/atf-national-firearms-act-handbook-atf-p-53208/download.
---------------------------------------------------------------------------
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) 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 (``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), https://www.cnn.com/us/live-news/boulder-colorado-shooting-3-23-21/h_0c662370eefaeff05eac3ef8d5f29e94
(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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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 intended to be fired from the shoulder as ``rifles,'' even if such
weapons might also be capable of one-handed fire. Because the
Department has determined that the best interpretation of the statute
calls for an assessment of whether the manufacturer's stated intent is
consistent with the objective design features of the firearm, this rule
also includes consideration of marketing or promotional materials and
likely use of the weapon in the general community among the factors to
be considered in determining whether a weapon is designed and intended
to be fired from the shoulder.
In clarifying the definition of ``rifle,'' this rule states that
the term ``designed or redesigned, made or remade, and intended to be
fired from the shoulder'' shall include a weapon that is equipped with
an accessory, component, or other rearward attachment (e.g., a
``stabilizing brace'') that provides surface area that allows the
weapon to be fired from the shoulder, provided other factors, as listed
below, indicate that that the weapon is designed, made, and intended to
be fired from the shoulder:
(i) whether the weapon has a weight or length consistent with the
weight or length of similarly designed rifles;
(ii) whether the weapon has a length of pull, measured from the
center of the trigger to the center of the shoulder stock or other
rearward accessory, component or attachment (including an adjustable or
telescoping attachment with the ability to lock into various positions
along a buffer tube, receiver extension, or other attachment method),
that is consistent with similarly designed rifles;
(iii) whether the weapon is equipped with sights or a scope with
eye relief that require the weapon to be fired from the shoulder in
order to be used as designed;
(iv) whether the surface area that allows the weapon to be fired
from the shoulder is created by a buffer tube, receiver extension, or
any other accessory, component, or other rearward attachment that is
necessary for the cycle of operations;
(v) the manufacturer's direct and indirect marketing and
promotional materials indicating the intended use of the weapon; and
(vi) information demonstrating the likely use of the weapon in the
general community.
The Department believes that the rule's final regulatory text
reflects the best interpretation of the statutory text.
The objective design features in this rule are taken from the NPRM
and also can be identified on the proposed ATF Worksheet 4999, as
discussed below.
(1) Final Rule: Surface area that allows the weapon to be fired
from the shoulder.
Because both the GCA and NFA define a ``rifle'' as a weapon
``designed . . . , made . . . , and intended to be fired from the
shoulder,'' the Department believes that a weapon equipped with a
``brace'' or other rearward attachment must first satisfy the
requirement that it have surface area that allows for the weapon to be
fired from the shoulder. A firearm that does not have surface area that
allows for the weapon to be fired from the shoulder cannot qualify as a
rifle.
The NPRM discussed the objective design feature of ``surface area''
and explained that some ``stabilizing braces'' provide larger, more
substantial surface area to shoulder the firearm, while some
``stabilizing braces'' may provide less surface area. 86 FR at 30832.
The NPRM discussed this factor in the context of the proposed Worksheet
4999, which included relevant subsections under Section II (Accessory
Characteristics) and Section III (Configuration of Weapon). These
subsections assessed points for the surface area provided by a
``brace'' device to shoulder a weapon and the attachment method of the
``brace'' on a firearm. The NPRM explained that the attachment method
of the ``stabilizing brace'' provides insight as to how the firearm is
intended to be used because material that extends the rear of the
firearm toward the shooter serves as surface area that allows for
shouldering the weapon and increases a firearm's length of pull. Id. at
30831, 30833. Accordingly, this rule incorporates these concepts from
the NPRM and proposed worksheet--the attachment method of the accessory
and the surface area--under the objective design feature of ``surface
area'' so that an assessment of whether a weapon that is equipped with
an accessory or rearward attachment provides surface area that allows
the weapon to be fired from the shoulder shall be the first step in
determining that a weapon is rifle designed, made, and intended to be
fired from the shoulder. In making the determination of whether surface
area ``allows'' for shoulder firing, ATF will not attempt to precisely
measure the surface area or make the determination based on the
existence of any minimum surface area. Instead, ATF will consider
whether there is any surface area on the firearm that can be used to
shoulder fire the weapon. If the firearm includes surface area that can
be used for shoulder firing the weapon, the weapon potentially
qualifies as a ``rifle''; in contrast, if the weapon does not include
such surface area, then it does not qualify as a ``rifle.'' To assess
whether a potential rifle is in fact a rifle, ATF would then consider
the other factors described below.
(2) Final Rule: Weight and length consistent with the weight and
length of rifles.
This rule identifies weight and length as one of several objective
design features in considering whether a firearm is designed, made, and
intended to be fired from the shoulder. This factor is drawn from the
NPRM, where the Department considered weight and length as a
prerequisite for whether a ``stabilizing brace'' would be effective in
stabilizing a firearm or whether the firearm would be too heavy to be
fired from one hand. Id. at 30831, 30834. The NPRM stated that a
firearm equipped with a ``stabilizing brace'' that was of a certain
weight and within a length range equipped with a ``stabilizing brace''
would be a rifle because otherwise the firearm would be too heavy to be
held by one hand. Id. Section I of the worksheet included the
conditions for meeting the weight and length requirements. Id. at
30831. The weight of the firearm was again considered in Section III of
the worksheet under peripheral accessories, where points were assessed
if the weapon as configured weighed over 120 ounces. Id. at 30834.
However, in response to comments pointing out that these lengths and
weights were not necessarily dispositive of whether a firearm is
intended to be fired from the shoulder, this rule considers the weight
and length of a firearm equipped with a ``brace'' device against the
weight and length of similarly designed rifles as a factor that can
confirm whether a firearm, which has a rearward attachment that
provides surface area for shouldering, is in fact a rifle.
(3) Final Rule: 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.
The rule incorporates length of pull as an objective design feature
from the NPRM because, as explained in the NPRM, it is a common
measurement of firearms that describes the distance between the center
of the firearm's trigger and the rear center of the shoulder stock. Id.
at 30833. A shoulder-fired weapon generally will have a length of pull
that allows the placement
[[Page 6512]]
of the firearm's shouldering device against the shooter's shoulder
while also ergonomically allowing the shooter to engage the firearm's
trigger. The NRPM provided length of pull measurements consistent with
shoulder-fired weapons and the Worksheet 4999 included a Length of Pull
subsection under Section III (Configuration of Weapon). Id. at 30831.
The NPRM also explained that the attachment method of the ``stabilizing
brace'' provides insight as to how the firearm is intended to be used
because material that extends the rear of the firearm towards the
shooter serves as a shouldering device by increasing a firearm's length
of pull. Id. at 30833. The Worksheet 4999 assessed two points for
``Extended AR-type Pistol Buffer Tube,'' ``Inclusion of Folding Adapter
to extend length of pull,'' and ``Use of `spacers' to extend length of
pull.'' Id. at 30831.
The length of pull feature encompasses the inclusion on the weapon
of an adjustable or telescoping attachment with the ability to lock in
various positions. This feature was described in the NPRM, which noted
that adjustability is a characteristic commonly associated with
shoulder stocks and a significant indicator that the device is designed
and intended to be shouldered. Id. at 30832. Section II (Accessory
Characteristics) of the worksheet included a subsection for
adjustability. Id. at 30830. Additionally, Section III (Configuration
of Weapon) of the worksheet assessed one point for a weapon that
incorporates an ``AR-type Pistol Buffer Tube with Adjustment Notches
(KAK-type),'' ``Adjustable Rifle Tube,'' and ``Adjustable PDW-type
guide rails.'' Id. at 30831. An adjustable or telescoping attachment
with the ability to lock into various positions along the rear of the
firearm allows an individual to adjust a firearm's surface area toward
the shooter and permits the shooter to place pressure on the rear of
the device when firing the weapon without the device or attachment
sliding forward.
This rule therefore clarifies that the objective design feature to
be considered is length of pull that is consistent with similarly
designed rifles, as measured from the center of the trigger to the
center of the shoulder stock or other rearward accessory. This
consideration necessarily includes whether the accessory is an
adjustable or telescoping attachment with the ability to lock into
various positions because an adjustable length of pull allows a shooter
to exercise better control, improve accuracy, and maintain comfort when
shooting based on the shooter's body or shooting preferences.
(4) Final Rule: Sights or scopes with eye relief that require
shouldering of the firearm in order to be used as designed.
The final rule draws from the NPRM the concept that certain
installed sights or scopes are indicators of intended use of firearm
with an attached ``stabilizing brace.'' Id. at 30834. The worksheet
identified some types of sights that are only partially usable when
firing the weapon with one hand. Sights that can only be used
effectively when the weapon is shouldered were assigned more points on
the worksheet. Id. For example, the Worksheet 4999 assessed one point
for the ``Presence of Rifle-type Back-up/Flip-up Sights/Or no sights'';
two points for the ``Presence of Reflex Sight with FTS Magnifier w/
Limited Eye Relief''; and four points for the ``Presence of a Sight/
Scope with Eye Relief Incompatible with one-handed fire.'' Id. at
30831. For the final regulatory text, rather than list some specific
types of sights or scopes, as attempted in the worksheet, the
Department determined that the relevant inquiry for this objective
design feature is 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. Sights or scopes that cannot be used
without shouldering the weapon indicate that the firearm is designed,
made, and intended to be fired from the shoulder.
(5) Final Rule: Necessary for the cycle of operations of the
firearm.
The rule provides that ATF may also consider whether the surface
area that allows the weapon to be fired from the shoulder is created by
a buffer tube, receiver extension, component, or other rearward
attachment that is necessary for the cycle of operations (i.e., to
expel a projectile by the action of an explosive). This consideration
is drawn from the NPRM and the proposed Worksheet 4999, which assessed
two points for ``Extended AR-type Pistol Buffer Tube,'' ``Inclusion of
Folding Adapter extending length of pull,'' and ``Use of `Spacers' to
extend length of pull.'' Id. at 30831. These extensions provide
additional material to the firearm that is not required for the cycle
of operations and, therefore, can be an indicator the firearm is
designed, made, and intended to be fired from the shoulder. In
contrast, material on a firearm that extends the rear surface area of
the firearm toward the shooter but is required for the cycle of
operations, such as an AR-type pistol with a standard 6 to 6-\1/2\ inch
buffer tube, may be an indicator that the firearm is not be designed,
made, and intended to be fired from the shoulder. Even if a weapon is
equipped with an accessory, component, or other rearward attachment
(e.g., a ``stabilizing brace'') that provides surface area that allows
shouldering of the weapon, under the rule, whether the accessory,
component, or other rearward attachment is necessary for the cycle of
operations needs to be considered in determining whether a firearm is
designed, made, and intended to be fired from the shoulder.
(6) Final Rule: Consideration of marketing or promotional materials
and likely use of the weapon in the general community.
In addition, the NPRM discussed how ATF looks to a weapon's
objective design features that can confirm or undermine the
manufacturer's stated intent. Id. at 30827. The NPRM also provided,
that ``regardless of the points accrued'' on the Worksheet 4999,
``efforts to advertise, sell, or otherwise distribute `short-barreled
rifles' as such will result in a classification as a `rifle'. . .
because there is no longer any question that the intent is for the
weapon to be fired from the shoulder.'' Id. at 30834; see also id. at
30829 (noting that certain firearms 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''). The
rule, therefore, clarifies that marketing or promotional materials
indicating the intended use of the weapon and any information
demonstrating how the weapon with the attachment is likely to be used
by the general community shall also be considered in determining
whether the weapon is designed, made, and intended to be fired from the
shoulder. These factors are considered in conjunction with the
objective design features of the firearm equipped with a ``stabilizing
brace'' to determine whether the firearm is designed, made, and
intended to be fired from the shoulder.
The remainder of this section explains the comments received on the
proposed Worksheet 4999 and point system and elaborates on the
objective design features and other factors relevant in the
determination of whether a weapon is a rifle. The Department also notes
that, 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 May 31, 2023. Manufacturers that wish to sell firearms equipped with
a ``stabilizing device'' may submit to FATD their firearm sample
equipped
[[Page 6513]]
with its attachments for an evaluation and analysis consistent with
this rule.
b. Worksheet 4999 Criteria and Point System
Comments Received
In addition to general opposition to the proposed Worksheet 4999,
numerous commenters critiqued the factoring criteria, claiming they
were either arbitrary or too complicated to understand. Despite ATF's
statements in the NPRM regarding the purpose of the worksheet,
commenters questioned whether the worksheet could provide uniform
consideration and application because it contains ambiguous terms that
are subject to interpretation and no measurable standards for many of
the criteria. Numerous commenters argued that, under the proposed
worksheet, ``no pistol-braced firearms would count as a pistol,''
especially when applying Section II. The commenters claimed it was
evident that ATF intended to classify everything with a barrel length
under 16 inches as an NFA firearm. Similarly, some commenters claimed
that most ``braced'' pistol firearms would fail the criteria on the
worksheet and that the highly subjective factors would allow ATF to
arbitrarily weigh points in favor of regulation under the NFA. One
company expressed concern that its product would be classified as an
NFA firearm under the proposed rule based merely on weight and length
characteristics.
Other commenters stated that, although ATF purported to be
publishing objective factoring criteria, the ATF Worksheet 4999 was
subjective and that the new, design-based ``features'' such as weight
and length, length of pull, or type and caliber, looked like they were
designed and intended to derive a predetermined outcome. One commenter
chastised ATF by stating ``[i]t is clear that ATF can distinguish
between a stock and a brace and is wrapping the application of braces
into the `stocked pistol' route to [a short-barreled rifle] despite
their understanding and creation of the issue.''
Numerous commenters also asserted that points were arbitrarily
assigned without justification or explanation. Commenters asked
questions such as how ATF determined that 4 points would be the
standard to pass or fail the worksheet and believed that ATF's
analysis, or lack thereof, of the factors was incorrect; and why did
ATF not explain ``why it is appropriate to use a rifle measurement when
analyzing pistols.'' At least one commenter suggested that ATF should
abandon the point-based worksheet and replace it with ``specific
product guidelines on which specific stabilizing braces are effectively
substitute shoulder stocks so that private citizens can easily
determine whether any in their possession (or that they plan to
purchase) would be lawful as-is or if an NFA stamp must be obtained.''
In addition to comments that the points assigned were arbitrary,
numerous commenters also raised other issues on certain criteria as
they did not agree with how ATF characterized the factors and the
associated issues.
Department Response
The Department agrees with commenters that the factoring criteria
with a point system as proposed in the Worksheet 4999 were not easily
understood or applied. The Department also agrees that some of the
terms from the NPRM and worksheet were ambiguous and subject to
interpretation. The Department also acknowledges that the NPRM's
explanation for the assessment of points for specific factors was not
as clear to the public as it had intended. However, the Department
disagrees with the commenter who asserted that design features do not
include a standard measurement. Likewise, the Department maintains the
proposed factors were taken from prior ATF classifications pertaining
to ``stabilizing braces'' and are consistent with the NFA and GCA.
Nevertheless, after careful review and consideration of the
comments, the objective design features of rifles, and the
administrative record, the Department does not adopt the proposed
Worksheet 4999 and point system in this rule. The Department concluded
the proposed Worksheet 4999 is unworkable first because Section II of
the worksheet improperly considered the design of the ``brace''
separately from the configuration of the firearm. Further, Section III
of the worksheet focused more on certain factors concerning the
effectiveness of the ``brace'' in firing with a single hand rather than
concentrating on rifle characteristics. The Department agrees that the
proper inquiry in determining whether the firearm is designed, made,
and intended to be fired from the shoulder should look at objective
design features common to rifles. The Department recognizes that, even
if a ``stabilizing brace'' may be used to support single-handed fire,
this does not preclude a firearm from being designed, made, and
intended to be fired from the shoulder under the relevant statutory
provisions.
Because the Department recognizes that proposed Worksheet 4999 was
flawed and that some of the terminology used was ambiguous, and that
the factors indicated in Worksheet 4999 could have been applied
subjectively based on the ambiguous terminology, the Department
believes the objective design features adopted in this rule provide a
more definitive method to determine when a firearm is designed, made,
and intended to be fired from the shoulder. Additionally, this rule
clarifies and simplifies the criteria from the Worksheet by describing
clear and unambiguous objective design features that can be readily
assessed. These assessments are summarized briefly here and discussed
further below:
First, the weight and length of a firearm are quantifiable, easily
measured metrics. ATF will measure the weight and length of the firearm
while it is equipped with the ``stabilizing brace'' affixed to it. How
ATF will evaluate the weight or length of firearms equipped with a
``stabilizing brace'' as compared to similarly designed rifles is
described in section IV.B.3.b.i of this preamble.
Second, length of pull is a quantifiable and easily assessed
measurement, and section IV.B.3.b.ix of this preamble provides a robust
discussion on length of pull, how it is measured, the adjustability or
telescoping ability of the ``brace'' on the firearm, and how it will be
compared to other similarly designed rifles.
Third, the standard for sights or a scope that require shouldering
to be used as designed can be measured by testing the sights or scope
from the shoulder versus use with one hand. If the sights or scope can
be used only while shouldering the firearm, this feature supports a
conclusion that the firearm is a rifle. For further discussion, refer
to section IV.B.3.b.xi of this preamble.
For these reasons, the Department agrees with the commenter who
suggested that the point-based worksheet be abandoned; however, the
Department does not find it administratively feasible to replace the
worksheet with that commenter's suggestion of an exhaustive list of
``braces.'' The rule provides clarification that a firearm designed,
made, and intended to be fired from the shoulder includes a weapon that
provides surface area that allows the weapon to be shouldered, provided
the other factors discussed in this preamble and listed in the amended
regulations also indicate the weapon is designed, made, and intended to
be fired from the shoulder. The Department believes this final rule
[[Page 6514]]
allows for easier application by the firearms industry and individual
firearm owners as compared to the approach in the NPRM and ATF's
current approach. Also, ATF is publishing information simultaneously
with this rule to inform members of the public of how they might be
impacted based on (1) common weapon platforms with attached
``stabilizing brace'' designs and (2) examples of commercially
available firearms with ``stabilizing braces'' that are short-barreled
rifles. For such weapons, action such as registration in the NFRTR will
need to be taken as discussed in section V.B of this preamble.
Additionally, ATF will inform the public as new weapon systems and
``stabilizing braces'' or other devices become available.
i. Weight and Length Prerequisites
Comments Received
Many commenters did not agree with or understand ATF's rationale
regarding weight and length as prerequisites before applying Worksheet
4999's factors to evaluate a firearm equipped with a ``stabilizing
brace.'' Commenters disputed ATF's statement from the NPRM that pistols
that fall below the weight and length threshold are easily fired one-
handed, and they asserted that the minimum and maximum weights seemed
to be arbitrary prerequisites because the effectiveness of a
``stabilizing brace'' is related to balance, not its overall weight.
Other commenters opined that it was not reasonable to have a minimum
weight and length and that weapon weight does not have a bearing on the
use of a ``stabilizing brace.'' ' Another commenter stated that,
according to the length and weight prerequisites, ``our product, the
Micro RONI[supreg] with Arm Support, [is] NFA regulated (requiring
registration and tax payment).'' Finally, one commenter stated that
weight should not be a factor because there is no ``bright line'' size
or weight of a gun below which a ``stabilizing brace'' would never be
useful.
Commenters also disagreed with the proposed minimum and maximum
length requirements. One commenter stated that weapons over 26 inches
may be fired from the hip using two hands and that ATF has historically
recognized that weapons over 26 inches provide an appropriate platform
for a brace. Likewise, the same commenter stated there are firearms
under 12 inches that have a recoil higher in foot pounds than some AR15
pistols for which a ``brace'' would be needed. Another commenter
disagreed with the overall length requirement and incorrectly asserted
that ``if two AR-type pistols equipped with a stabilizing brace have
the same weight, but one has an overall length of 24 [inches] and the
other has an overall length of 27 [inches], the latter would
automatically be a short-barreled rifle'' when ``[i]n fact, the
stabilizing brace would be more useful on the longer pistol because it
will tend to be more `front heavy'.'' In essence, this commenter did
not understand why ATF concluded that only ``handguns'' may utilize a
stabilizing brace. They argued that if a firearm is over 26 inches in
length and features a secondary forward grip, the stabilizing brace
would still be useful to allow single-handed shooting ``when the user
decides to do that.'' (Emphasis in the original.)
The same commenter was troubled with the application of the weight
factor, as it seemed to vary from section-to-section in Worksheet 4999
and as written, appeared to the commenter to ``stack the deck in favor
of disqualification.'' The commenter provided the example that in
``Section I (where a lighter weight will reclassify a pistol as a
short-barreled rifle) `accessories' are removed,'' whereas ``in Section
III (where a heavier weight will reclassify a pistol as a short-
barreled rifle) `accessories' are not removed.''
Department Response
The Department agrees with commenters that weight and length should
not be used as prerequisites to determine whether use of a
``stabilizing brace'' on a given firearm effectively creates a rifle.
The Department also agrees that there should not be an upper weight
threshold of 120 ounces because there is no bright-line size of a gun
for which a ``stabilizing brace'' would be useful. The Department,
however, disagrees with the assertion that weight and length of a
firearm are irrelevant to whether a firearm is designed, made, and
intended to be fired from the shoulder. The purpose for using weight
and length as prerequisites was to evaluate whether a ``stabilizing
brace'' in fact could be practically used with heavy pistols. However,
as previously discussed, the Department recognizes that focusing on
whether a ``stabilizing brace'' can practically or effectively be used
on a firearm for single-handed fire is not the correct inquiry. When a
firearm equipped with a ``stabilizing brace'' has surface area that
allows the firearm to be shoulder fired, it is helpful to compare the
characteristics of that firearm to similar firearms that are designed,
made, and intended to be fired from the shoulder to determine if the
first firearm is a rifle. If the weight or length of the firearm in
question is consistent with the weight or length of similarly designed
rifles, then this would be an indicator that shoulder firing the weapon
provides stabilization and is beneficial in firing the weapon, and thus
that the firearm is designed, made, and intended to be used this way.
To further inform the public of examples of weights and lengths
consistent with rifles, ATF's FATD weighed a variety of rifles,
traditional and modern, from the National Firearms Collection.\103\
---------------------------------------------------------------------------
\103\ The National Firearms Collection is a firearms and
ammunition collection for research that houses more than 12,000
firearms.
----------------------------------------------------------------------------------------------------------------
Weight
Manufacturer Model Caliber Barrel length (pounds)
----------------------------------------------------------------------------------------------------------------
COLT.............................. SMG.................. 9x19mm............... 9\1/2\'' 5.3
COLT.............................. AR-15................ .223 REM............. 16'' 6
Q................................. HONEY BADGER......... .300 BLK............. 7'' 4.4
LWRC.............................. M6................... .223 REM............. 10\1/2\'' 6
SIG SAUER......................... MCX.................. .223 REM............. 16'' 7.9
SIG SAUER......................... MCX RATTLER.......... .300 BLK............. 6'' 6
MAXIM DEFENSE..................... MDX.................. .223 REM............. 7'' 5.1
MAXIM DEFENSE..................... PDX.................. .223 REM............. 6'' 6
LRB ARMS.......................... M15SA................ .223 REM............. 7'' 5.1
BCI DEFENSE....................... SQS15................ .223 REM............. 8'' 4.6
H&K............................... MK16................. .223 REM............. 14'' 6.6
[[Page 6515]]
Z-M WEAPONS....................... LR300................ .223 REM............. 16\1/2\'' 7.1
OLYMPIC ARMS...................... M.F.R................ .223 REM............. 16'' 7.9
ARSENAL........................... AKS-74U.............. .223 REM............. 8\1/2\'' 5.7
ARSENAL........................... SAS M-7.............. 7.62x39mm............ 16'' 6.8
YUGOSLAVIA........................ AK-47................ 7.62x39mm............ 16'' 5.7
ZASTAVA........................... AK-47................ 7.62x39mm............ 16'' 6.8
IRAQ.............................. TABUK................ 7.62x39mm............ 12'' 7.9
RUSSIAN........................... KRINK................ 7.62x39mm............ 8'' 5.5
MAGUA INDUSTRIES.................. MINI-BERYL........... .223 REM............. 8'' 7.1
H&K............................... MP5K................. 9x19mm............... 4\1/2\'' 5.5
H&K............................... MP5.................. 9x19mm............... 9'' 4.2
H&K............................... UMP.................. .45 ACP.............. 8'' 4.4
BOBCAT WEAPONS.................... BW-5................. 9x19mm............... 9'' 5.6
HK................................ USC.................. .45 ACP.............. 16\1/8\'' 6
S.W.D............................. CM-11................ 9x19mm............... 17\1/8\'' 6.2
S.W.D............................. M-11/NINE............ 9x19mm............... 5\1/2\'' 4.2
M.A.C............................. M10.................. .45 ACP.............. 5\7/8\'' 6
MAC PMF........................... M11.................. .380 ACP............. 5\1/8\'' 3.3
JERSEY ARMS....................... AVENGER.............. .45 ACP.............. 6\3/8\'' 6.2
RPB............................... M10.................. 9x19mm............... 5\7/8\'' 6.2
IMI............................... UZI.................. 9x19mm............... 10'' 5.5
IMI............................... MINI UZI............. 9x19mm............... 8'' 5.5
IMI............................... MICRO UZI............ 9x19mm............... 5\1/4\'' 3.7
IMI............................... MICRO UZI............ 9x19mm............... 5\3/8\'' 4.4
IWI............................... UZI PRO.............. 9x19mm............... 6\3/4\'' 4.4
LWRC.............................. SMG45................ .45 ACP.............. 8\3/4\'' 6
SIG SAUER......................... MPX.................. 9x19mm............... 3\1/2\'' 4
SIG SAUER......................... MPX.................. 9x19mm............... 4\1/2\'' 5.3
SIG SAUER......................... MPX.................. 9x19mm............... 5\1/2\'' 5.7
B&T............................... APC9................. 9x19mm............... 7'' 6
B&T............................... TP9.................. 9x19mm............... 6'' 3.5
BERETTA........................... CX4 STORM............ 9x19mm............... 16\3/4\'' 5.7
BERETTA........................... CX4 STORM............ .40 S&W.............. 18'' 5.1
DBX............................... 5.7DBX............... 5.7x28mm............. 8'' 3.7
CZ................................ EVO SCORPION......... 9x19mm............... 8'' 5.3
CZ................................ EVO SCORPION......... 9x19mm............... 9'' 6.7
CZECH............................. SKORPION............. .32 ACP.............. 4\1/2\'' 3.1
GRAND POWER....................... STRIBOG SP9A1........ 9x19mm............... 8'' 6
INTRATEC.......................... MP9.................. 9x19mm............... 5\1/8\'' 3.7
INTRATEC.......................... TEC-KG9.............. 9x19mm............... 4\1/4\'' 5.3
CALICO............................ M900................. 9x19mm............... 16'' 5.1
RUGER............................. PC CARBINE........... 9x19mm............... 16\1/4\'' 7.5
RECOVER TACTICAL.................. PI-X................. 9x19mm............... 4\1/2\'' 4.2
FN................................ P90.................. 5.7x28mm............. 12'' 5.9
FN................................ PS90................. 5.7x28mm............. 18\1/2\'' 6.6
HK................................ MP7.................. 4.6x30mm............. 8'' 4.4
KRISS............................. VECTOR............... .45 ACP.............. 6'' 6.4
KRISS............................. VECTOR............... .45 ACP.............. 16'' 7.3
HI-POINT.......................... 4095................. .40 S&W.............. 17\5/8\'' 6.6
KEL-TEC........................... SUB2000.............. 9x19mm............... 16\1/8\'' 4
STEYR............................. MP40................. 9x19mm............... 9\3/4\'' 7.5
STEN.............................. MK11................. 9x19mm............... 7\3/4\'' 5.7
FB................................ MSBS................. .223 REM............. 17'' 7.3
IWI............................... CARMEL............... .223 REM............. 13\1/2\'' 6.8
FN................................ SCAR-16.............. .223 REM............. 14'' 7.5
FN................................ SCAR PDW-P........... .223 REM............. 7\1/2\'' 6.6
FN................................ FS2000............... .223 REM............. 19'' 7.7
CZ................................ BREN 805............. .223 REM............. 11'' 7.9
REMINGTON......................... 700.................. .308 WIN............. 12\1/2\'' 7.1
HK................................ HK93................. .223 REM............. 13'' 8.4
STEYR............................. AUG.................. .223 REM............. 21\1/2\'' 8.4
STEYR............................. AUG.................. 9x19mm............... 16\3/4\'' 7.7
WINCHESTER........................ 1894................. .30 W.C.F............ 15'' 6
GERMANY........................... STG44................ 7.92 KURTZ........... 16\1/4\'' 9.9
RUGER............................. MINI-14.............. .223 REM............. 18\1/2\'' 7.1
KEL-TEC........................... SU-16................ .223 REM............. 18\1/2\'' 5.1
BERETTA........................... RX4 STORM............ .223 REM............. 12\1/2\'' 7.1
INLAND............................ M2 CARBINE........... .30 CAL.............. 18'' 4.9
US................................ M2 CARBINE........... .30 CAL.............. 18'' 4.6
BROWNING.......................... BUCKMARK............. .22LR................ 18'' 4.9
MAUSER............................ C96.................. 7.63x25mm............ 5\1/2\'' 3.1
DWM............................... LUGER................ 9x19mm............... 7\7/8\'' 2.9
DWM............................... LUGER................ 9x19mm............... 4\3/4\'' 3.1
[[Page 6516]]
MAUSER............................ C96.................. .30 Mauser........... 5\5/8\'' 3.5
MAUSER............................ C96.................. 9x19mm............... 5\5/8\'' 3.3
GERMANY........................... STECHKIN............. .380 ACP............. 5\5/8\'' 3.3
UNITED KINGDOM.................... MK6.................. .455 WEB............. 6'' 5.5
STAR.............................. 1911................. .38 Super............ 5'' 4
BROWNING/FN....................... HI-POWER............. 9x19mm............... 4\3/4\'' 3.3
BERETTA........................... 93R.................. 9x19mm............... 6\1/4\'' 3.1
CAA............................... MCK CL............... 9x19mm............... 4'' 2.9
CAA............................... MCK GEN 2............ 9x19mm............... 4'' 3.7
FIRE CONTROL UNIT................. X-01................. 9x19mm............... 3\7/8\'' 3.7
RECOVER TACTICAL.................. 20/20N............... 9x19mm............... 4\1/2\'' 2.2
FAB DEFENSE....................... KPOS G2.............. 9x19mm............... 9'' 3.7
ACCURATE PISTOL SYSTEMS........... GLOCK 17............. 9x19mm............... 4\1/2\'' 2.9
ENDO TACTICAL..................... GLOCK 17............. 9x19mm............... 4\1/2\'' 2.6
TAC STOCK......................... GLOCK 17............. 9x19mm............... 4\1/2\'' 2
CALICO............................ M-100................ .22LR................ 17\7/8\'' 4.6
UMAREX............................ HK 416D.............. .22LR................ 16\1/4\'' 6.6
ISSC.............................. MK22................. .22LR................ 16\1/2\'' 6.6
GSG............................... GSG-522.............. .22LR................ 16\3/8\'' 6.2
DAISY MFG......................... N/A.................. .22LR................ 16\1/4\'' 3.3
HENRY............................. LEVER ACTION......... .22LR................ 16\1/8\'' 5.1
REMINGTON......................... MODEL 597............ .22LR................ 20'' 5.3
SPRINGFIELD....................... M6 SURVIVAL.......... .22LR................ 18\1/4\'' 3.6
ITHACA............................ M6 SURVIVAL.......... .22LR................ 14\1/4\'' 3.7
CHARTER ARMS...................... AR-7................. .22LR................ 16\1/8\'' 2.6
RUGER............................. 22-Oct............... .22LR................ 18\5/8\'' 5.1
KSA............................... CRICKET.............. .22LR................ 16\1/4\'' 2.9
----------------------------------------------------------------------------------------------------------------
Similarly, ATF's FATD measured the length of numerous rifles
available in the National Firearms Collection to provide an example of
lengths of rifles.
----------------------------------------------------------------------------------------------------------------
Manufacturer Model Caliber Barrel length Overall length
----------------------------------------------------------------------------------------------------------------
COLT.............................. SMG.................. 9x19mm............... 9\1/2\'' 27''
COLT.............................. AR-15................ .223 REM............. 16'' 33''
Q................................. HONEY BADGER......... .300 BLK............. 7'' 24''
LWRC.............................. M6................... .223 REM............. 10\1/2\'' 28''
SIG SAUER......................... MCX.................. .223 REM............. 16'' 33\1/2\''
SIG SAUER......................... MCX RATTLER.......... .300 BLK............. 6'' 32\1/4\''
MAXIM DEFENSE..................... MDX.................. .223 REM............. 7'' 23\1/4\''
MAXIM DEFENSE..................... PDX.................. .223 REM............. 6'' 22''
LRB ARMS.......................... M15SA................ .223 REM............. 7'' 24\1/2\''
BCI DEFENSE....................... SQS15................ .223 REM............. 8'' 23\1/2\''
H&K............................... MK16................. .223 REM............. 14'' 30\1/4\''
Z-M WEAPONS....................... LR300................ .223 REM............. 16\1/2\'' 35''
OLYMPIC ARMS...................... M.F.R................ .223 REM............. 16'' 36\1/2\''
ARSENAL........................... AKS-74U.............. .223 REM............. 8\1/2\'' 27''
ARSENAL........................... SAS M-7.............. 7.62x39mm............ 16'' 34\3/4\''
YUGOSLAVIA........................ AK-47................ 7.62x39mm............ 16'' 34\1/4\''
ZASTAVA........................... AK-47................ 7.62x39mm............ 16'' 34\3/4\''
IRAQ.............................. TABUK................ 7.62x39mm............ 12'' 31\1/2\''
RUSSIAN........................... KRINK................ 7.62x39mm............ 8'' 26''
MAGUA INDUSTRIES.................. MINI-BERYL........... .223 REM............. 8'' 26''
H&K............................... MP5K................. 9x19mm............... 4\1/2\'' 21\1/2\''
H&K............................... MP5.................. 9x19mm............... 9'' 26''
H&K............................... UMP.................. .45 ACP.............. 8'' 27\3/4\''
BOBCAT WEAPONS.................... BW-5................. 9x19mm............... 9'' 26\3/4\''
HK................................ USC.................. .45 ACP.............. 16\1/8\'' 34\3/4\''
S.W.D............................. CM-11................ 9x19mm............... 17\1/8\'' 30\5/8\''
S.W.D............................. M-11/NINE............ 9x19mm............... 5\1/2\'' 22\1/8\''
M.A.C............................. M10.................. .45 ACP.............. 5\7/8\'' 19\1/8\''
MAC PMF........................... M11.................. .380 ACP............. 5\1/8\'' 18\1/2\''
JERSEY ARMS....................... AVENGER.............. .45 ACP.............. 6\3/8\'' 22\1/2\''
RPB............................... M10.................. 9x19mm............... 5\7/8\'' 22''
IMI............................... UZI.................. 9x19mm............... 10'' 25\3/4\''
IMI............................... MINI UZI............. 9x19mm............... 8'' 23\3/4\''
IMI............................... MICRO UZI............ 9x19mm............... 5\1/4\'' 19\1/4\''
IMI............................... MICRO UZI............ 9x19mm............... 5\3/8\'' 19\1/4\''
IWI............................... UZI PRO.............. 9x19mm............... 6\3/4\'' 21\1/4\''
LWRC.............................. SMG45................ .45 ACP.............. 8\3/4\'' 24\1/2\''
[[Page 6517]]
SIG SAUER......................... MPX.................. 9x19mm............... 3\1/2\'' 18\3/4\''
SIG SAUER......................... MPX.................. 9x19mm............... 4\1/2\'' 21\3/4\''
SIG SAUER......................... MPX.................. 9x19mm............... 5\1/2\'' 22''
B&T............................... APC9................. 9x19mm............... 7'' 23\1/4\''
B&T............................... TP9.................. 9x19mm............... 6'' 20\1/2\''
BERETTA........................... CX4 STORM............ 9x19mm............... 16\3/4\'' 30\1/2\''
BERETTA........................... CX4 STORM............ .40 S&W.............. 18'' 29\1/2\''
DBX............................... 5.7DBX............... 5.7x28mm............. 8'' 23''
CZ................................ EVO SCORPION......... 9x19mm............... 8'' 26''
CZ................................ EVO SCORPION......... 9x19mm............... 9'' 30\1/4\''
CZECH............................. SKORPION............. .32 ACP.............. 4\1/2\'' 20\1/2\''
GRAND POWER....................... STRIBOG SP9A1........ 9x19mm............... 8'' 24\1/2\''
INTRATEC.......................... MP9.................. 9x19mm............... 5\1/8\'' 21''
INTRATEC.......................... TEC-KG9.............. 9x19mm............... 4\1/4\'' 21\1/2\''
CALICO............................ M900................. 9x19mm............... 16'' 37''
RUGER............................. PC CARBINE........... 9x19mm............... 16\1/4\'' 35\5/8\''
RECOVER TACTICAL.................. PI-X................. 9x19mm............... 4\1/2\'' 25\1/2\''
FN................................ P90.................. 5.7x28mm............. 12'' 19\1/2\''
FN................................ PS90................. 5.7x28mm............. 18\1/2\'' 26''
HK................................ MP7.................. 4.6x30mm............. 8'' 23''
KRISS............................. VECTOR............... .45 ACP.............. 6'' 24\1/2\''
KRISS............................. VECTOR............... .45 ACP.............. 16'' 35\1/4\''
HI-POINT.......................... 4095................. .40 S&W.............. 17\5/8\'' 32\1/4\''
KEL-TEC........................... SUB2000.............. 9x19mm............... 16\1/8\'' 29\1/4\''
STEYR............................. MP40................. 9x19mm............... 9\3/4\'' 32''
STEN.............................. MK11................. 9x19mm............... 7\3/4\'' 30''
FB................................ MSBS................. .223 REM............. 17'' 34''
IWI............................... CARMEL............... .223 REM............. 13\1/2\'' 28\1/2\''
FN................................ SCAR-16.............. .223 REM............. 14'' 32\1/2\''
FN................................ SCAR PDW-P........... .223 REM............. 7\1/2\'' 27''
FN................................ FS2000............... .223 REM............. 19'' 29''
CZ................................ BREN 805............. .223 REM............. 11'' 30''
REMINGTON......................... 700.................. .308 WIN............. 12\1/2\'' 31\3/4\''
HK................................ HK93................. .223 REM............. 13'' 34''
STEYR............................. AUG.................. .223 REM............. 21\1/2\'' 31\1/4\''
STEYR............................. AUG.................. 9x19mm............... 16\3/4\'' 26''
WINCHESTER........................ 1894................. .30 W.C.F............ 15'' 33''
GERMANY........................... STG44................ 7.92 KURTZ........... 16\1/4\'' 36\3/4\''
RUGER............................. MINI-14.............. .223 REM............. 18\1/2\'' 37\3/4\''
KEL-TEC........................... SU-16................ .223 REM............. 18\1/2\'' 37\1/2\''
BERETTA........................... RX4 STORM............ .223 REM............. 12\1/2\'' 33\1/2\''
INLAND............................ M2 CARBINE........... .30 CAL.............. 18'' 36''
US................................ M2 CARBINE........... .30 CAL.............. 18'' 37\1/2\''
BROWNING.......................... BUCKMARK............. .22LR................ 18'' 33\1/2\''
MAUSER............................ C96.................. 7.63x25mm............ 5\1/2\'' 25''
DWM............................... LUGER................ 9x19mm............... 7\7/8\'' 26''
DWM............................... LUGER................ 9x19mm............... 4\3/4\'' 22''
MAUSER............................ C96.................. .30 Mauser........... 5\5/8\'' 24\7/8\''
MAUSER............................ C96.................. 9x19mm............... 5\5/8\'' 25''
GERMANY........................... STECHKIN............. .380 ACP............. 5\5/8\'' 21''
UNITED KINGDOM.................... MK6.................. .455 WEB............. 6'' 23\3/4\''
STAR.............................. 1911................. .38 Super............ 5'' 23''
BROWNING/FN....................... HI-POWER............. 9x19mm............... 4\3/4\'' 21\1/8\''
BERETTA........................... 93R.................. 9x19mm............... 6\1/4\'' 22\1/2\''
CAA............................... MCK CL............... 9x19mm............... 4'' 23''
CAA............................... MCK GEN 2............ 9x19mm............... 4'' 22\3/4\''
FIRE CONTROL UNIT................. X-01................. 9x19mm............... 3\7/8\'' 20\1/2\''
RECOVER TACTICAL.................. 20/20N............... 9x19mm............... 4\1/2\'' 19''
FAB DEFENSE....................... KPOS G2.............. 9x19mm............... 9'' 23\1/2\''
ACCURATE PISTOL SYSTEMS........... GLOCK 17............. 9x19mm............... 4\1/2\'' 21\1/4\''
ENDO TACTICAL..................... GLOCK 17............. 9x19mm............... 4\1/2\'' 23\1/2\''
TAC STOCK......................... GLOCK 17............. 9x19mm............... 4\1/2\'' 21\5/8\''
CALICO............................ M-100................ .22LR................ 17\7/8\'' 35\5/8\''
UMAREX............................ HK 416D.............. .22LR................ 16\1/4\'' 35\1/4\''
ISSC.............................. MK22................. .22LR................ 16\1/2\'' 33\1/4\''
GSG............................... GSG-522.............. .22LR................ 16\3/8\'' 33\3/4\''
DAISY MFG......................... N/A.................. .22LR................ 16\1/4\'' 32\1/4\''
HENRY............................. LEVER ACTION......... .22LR................ 16\1/8\'' 33\1/8\''
REMINGTON......................... MODEL 597............ .22LR................ 20'' 38\1/2\''
SPRINGFIELD....................... M6 SURVIVAL.......... .22LR................ 18\1/4\'' 32''
ITHACA............................ M6 SURVIVAL.......... .22LR................ 14\1/4\'' 27\7/8\''
CHARTER ARMS...................... AR-7................. .22LR................ 16\1/8\'' 35\1/8\''
RUGER............................. 22-Oct............... .22LR................ 18\5/8\'' 36\3/4\''
[[Page 6518]]
KSA............................... CRICKET.............. .22LR................ 16\1/4\'' 30\1/8\''
----------------------------------------------------------------------------------------------------------------
Although the above weights and lengths for rifles are not
themselves determinative, the Department also notes that many heavy
pistols have the receiver of a rifle with the stock removed and that
the firearm with a pistol grip is a variant of a rifle.\104\ These
heavy pistols are often lighter or shorter than the rifle version but
reach the same weight and length of their rifle predecessor when
equipped with a ``stabilizing brace'' device. Many firearms that
incorporate ``stabilizing brace'' devices are variants of rifles (e.g.,
AR and AK-type pistols), which often incorporate receivers that accept
cartridges primarily designed for rifles. For a firearm marketed as a
pistol that is a variant of a rifle, ATF would compare the weight and
length of the firearm with an attached ``stabilizing brace'' (or other
device attached) against the original rifle design. For a firearm that
is not a variant of a rifle (e.g., a Glock-type pistol), the weight and
length of the firearm with an attached ``stabilizing brace'' (or other
device attached) would be compared to the weight or length range of
variants designed, made, and intended to be fired from the shoulder
(e.g., a Glock-type pistol with a shoulder stock or installed into a
carbine conversion kit). When a firearm with an attached ``brace''
device has a weight or length comparable to rifles, that weight or
length is an indication that the firearm is designed, made, and
intended to be fired from the shoulder.
---------------------------------------------------------------------------
\104\ ATF Final Rule 2021R-05F revised the definition of the
term ``frame or receiver'' to provide that a ``receiver'' means
``the part of a rifle, shotgun, or projectile weapon other than a
handgun, or variants thereof, that provides housing or a structure
for the primary component designed to block or seal the breech prior
to initiation of the firing sequence (i.e., bolt, breechblock, or
equivalent), even if pins or other attachments are required to
connect such component to the housing or structure.'' 87 FR at
24735. The rule also defined the term `` `variant' and `variants
thereof' [to] mean a weapon utilizing a similar frame or receiver
design irrespective of new or different model designations or
configurations, characteristics, features, components, accessories,
or attachments. For example, an AK-type firearm with a short stock
and a pistol grip is a pistol variant of an AK-type rifle, an AR-
type firearm with a short stock and a pistol grip is a pistol
variant of an AR-type rifle, and a revolving cylinder shotgun is a
shotgun variant of a revolver.'' Id.
---------------------------------------------------------------------------
The Department agrees with one commenter's concerns regarding the
outcome under the proposed Worksheet 4999 in a scenario in which two
firearms with an attached ``brace'' device weigh the same and one is 25
inches in length and the other is 27 inches in length. The latter
firearm under the worksheet would have been classified as a rifle when
equipped with a ``stabilizing brace,'' not a short-barreled rifle as
asserted by the commenter, on the basis that a firearm with an overall
length exceeding 26 inches would be impractical and inaccurate to fire
one handed due to the imbalance of the weapon, and thus would need to
be shouldered. Notably, the weight and length prerequisites in the
worksheet were considered in the context of whether the firearm is
practical to fire with a single hand rather than whether the firearm is
designed and intended to be fired from the shoulder. The rule no longer
focuses on whether the overall length of the firearm (i.e., 12 to 26
inches) is suitable for installing a ``stabilizing brace'' device.
Rather, the Department believes the statute is best interpreted to
include consideration of the weight or length of a firearm with a
``stabilizing brace'' and a rear surface area that allows firing from
the shoulder as one of the objective design features indicating whether
the weapon is designed, made, and intended to be fired from the
shoulder.
While at least one commenter expressed concern that the proposed
worksheet ``stack[ed] the deck in favor of disqualification'' and would
result in many pistol-braced firearms being classified as rifles, the
Department recognizes that, under the best interpretation of the
statutory terms, a majority of firearms equipped with a ``stabilizing
brace'' currently or previously available on the market likely have the
requisite design features indicating that the firearm is designed or
redesigned, made or remade, and intended to be fired from the shoulder.
As previously discussed in section IV.B.1.c.i of this preamble, many
firearms owners and industry members use firearms equipped with
``stabilizing braces'' as shoulder fire weapons to effectively
circumvent the requirements of the NFA. Therefore, it is necessary for
the Department to apply clear and consistent standards to properly
regulate these firearms.
ii. Weight and Length Prerequisite--Inclusion of Accessories
Comments Received
Several commenters stated that the worksheet was confusing because
it did not clearly explain whether the ``stabilizing brace'' and other
accessories were to be attached to the firearm when measuring the
relevant lengths and weights. One commenter opined that the worksheet
provided that overall length would have been measured ``with all non-
operational accessories removed,'' and it was unclear what ``non-
operational accessories'' meant in this context, especially given the
worksheet's definition of accessory, which seemed to include only
stabilizing braces. The same question was raised when it came to
determining the minimum weight, as the commenter said it is unclear how
the firearm would be weighed, i.e., with only the ``stabilizing brace''
removed or whether other accessories (e.g., sights, forward pistol
grip, bipod, etc.) should be removed as well.
Department Response
The Department notes that, in not adopting Worksheet 4999 and the
associated point system, this rule addresses commenters' concerns
regarding the different ways ATF was to weigh or measure the firearm
(i.e., either with or without accessories, including ``stabilizing
braces''). In considering whether a firearm's weight and length are
consistent with that of rifles, FATD, under the final rule, will weigh
a submitted firearm sample with all of the accessories attached and an
empty magazine. Additionally, the overall length of the firearm will be
measured with the ``stabilizing brace'' attached and fully extended,
with the firearm to be measured from the rearmost point of the butt
plate or grip. The Sporting Arms and Ammunition Manufacturers'
Institute, Inc. (``SAAMI'') identifies the overall length of a firearm
as: ``The dimension measured parallel to the axis of the bore from the
muzzle to a line at right angles to the axis and tangent to the
rearmost point of the butt-plate or grip.'' \105\ Similarly, ATF will
apply the overall length standard that it uses to measure a weapon made
from a shotgun
[[Page 6519]]
or a rifle for purposes of 27 CFR 479.11 to measure the overall length
for rifles. This standard is ``the distance between the extreme ends of
the weapon measured along a line parallel to the center line of the
bore.'' 27 CFR 479.11.
---------------------------------------------------------------------------
\105\ SAAMI, Glossary, Sporting Arms and Ammunition
Manufacturers' Institute, Inc., https://saami.org/glossary/overall-length/ (last visited Jan. 6, 2023).
---------------------------------------------------------------------------
iii. Weight and Length Prerequisites--Shooting Orientation
Comments Received
At least one commenter argued that ATF wrongly identified the
weight factor, stating ``if I had a pistol that weighed more than 7-1/2
pounds, I would want a stabilizing brace. And I would probably fire
from a bench rest (setting the front of the gun on a sandbag) or from
another supported position such as prone (perhaps using a bipod) or
seated (resting an elbow on a knee). All of these are well-known
shooting positions.''
Department Response
The Department disagrees that the method in which a ``stabilizing
brace'' may be used, in isolated circumstances or by a single
individual, is relevant to examining whether a firearm is designed,
made, and intended to be fired from the shoulder. The Department has
determined that the definition of ``rifle'' in the relevant statutes
should not be based solely on how a single individual plans to use a
weapon. For instance, one commenter provided an example of using a
brace on a pistol that weighs more than 7-\1/2\ pounds; the commenter
said he would want to fire it from a bench rest or a prone or seated
position. In fact, rifles designed, made, and intended to be fired from
the shoulder can be fired from a bench rest, as well as from a prone or
seated position, as demonstrated below.\106\ The individual's personal
intent to fire the weapon from a bench rest thus does not preclude a
conclusion that the weapon in question is nonetheless designed, made,
and intended to be fired from the shoulder.
---------------------------------------------------------------------------
\106\ See Lou Patrick, Bench Rest Shooting Fundamentals, Shoot
On, https://shoot-on.com/bench-rest-shooting-fundamentals/ (last
visited Dec. 12, 2022); Keith Wood, How to Shoot Your Best from a
Benchrest, RifleShooter (Aug. 5, 2014), https://www.rifleshootermag.com/editorial/boost-benchrest-shooting-skills/83631; Dave Campbell, Back to Basics: Shooting Support, NRA American
Rifleman (July 13, 2018), https://www.americanrifleman.org/content/back-to-basics-shooting-support/; Frank Galli, Long Range Shooting:
Precision Marksmanship Fundamentals, RECOIL--Firearm Lifestyle
Magazine (reoilweb.com), (Jan. 7, 2021), https://www.recoilweb.com/long-range-shooting-precision-marksmanship-fundamentals-163796.html.
---------------------------------------------------------------------------
BILLING CODE 4410-FY-P
[[Page 6520]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.034
BILLING CODE 4410-FY-C
[[Page 6521]]
The Department has determined that making classifications based
solely on the way a particular individual uses a firearm equipped with
a ``stabilizing brace'' would not effectively implement the statutory
scheme. Doing so would lead to the absurd result that a firearm is not
designed, made, and intended to be fired from the shoulder simply
because one user happens to fire it with one hand, regardless of
whether other evidence of the weapon's purpose--principally, its
objective design features as described in this final rule--indicate it
was designed, made, and intended to be fired from the shoulder.
iv. Weight and Length Prerequisites--Shooters' Physical Abilities
Comments Received
Other commenters stated that weight limits, whether minimum or
maximum, were arbitrary because ``[s]ome people are stronger than
others'' and the rule did not account for the physical abilities or
limitations of those individuals with disabilities. Another commenter
agreed: ``Using weight and length as determinative factors will create
a subjective and overbroad control because the ability to handle any
firearm varies among users[.]'' Another commenter, who argued the four-
pound minimum was arbitrary, stated that ATF provided no analysis
showing the distribution of shooters the agency believes can ``easily''
fire a ``traditional'' pistol with one hand, nor did it address pistols
lighter than the AR15 pistol that are more in need of a ``brace''
device to control a firearm's recoil. Similarly, other commenters
claimed that ATF ``[f]ail[ed] to acknowledge the need for . . . lighter
weight, smaller size firearms as teaching tools and practical firearms
for those with advanced physical challenges.'' Regarding the weight
threshold, one commenter stated that the ``excessively high lower limit
on weight will tend to affect the old, the neurologically impaired, and
smaller, weaker individuals.'' Another commenter pointed out that ``a
firearm that is considered heavy and long by a small statured person
could just as easily be considered light and short by a larger framed
person.''
Department Response
The Department disagrees that any minimum or maximum weight is
arbitrary because of the subjective sizes or disabilities of
individuals. Neither the GCA nor the NFA classifies firearms based upon
a particular individual shooter's strength, height, disability, or
other personal trait--and neither does ATF. Although ATF considers a
maker's or manufacturer's purported intent as reflected in marketing
and promotional materials, or other information demonstrating the
likely use by the general community, the statute calls for an
assessment of whether the maker's or manufacturer's stated intent is
consistent with the firearm's objective design features. Although the
Department acknowledges that there may be certain individuals who,
because of their particular physical characteristics, may find it
easier to or harder to fire certain weapons with one hand, the fact
that a weapon, in certain circumstances, is capable of one-handed fire
does not preclude a conclusion that the weapon is designed, made, and
intended to be fired from the shoulder. The statutory definition of
``rifle,'' in other words, does not turn on potential alternate uses of
the weapon in question, as explained above.
In response to commenters concerned about the use of ``stabilizing
braces'' on smaller firearms by persons with physical or neurological
disabilities, the Department notes that an individual may still possess
and use a firearm equipped with a ``stabilizing brace,'' but the
firearm could be subject to the NFA. In addition, such a person may be
able to purchase a ``stabilizing brace'' that, when attached to the
weapon in question, does not make the weapon a ``rifle'' based on the
objective design features and other evidence, as listed in this rule.
As earlier discussed in section IV.B.1.d of this preamble, a person
with a disability who is in possession of a firearm is not exempt from
complying with the applicable provisions of the NFA.
v. Accessory Design
Comments Received
A commenter said Section II (Accessory Design) of Worksheet 4999
relied on the interpretation of the vague criteria. Numerous other
commenters stated that it was unclear what ``known stock design'' means
and questioned how individuals are supposed to know every single stock
design to determine if the accessory is suitable as a ``brace'' or
device.
Department Response
The Department agrees the criteria to evaluate an attachment or
purported ``stabilizing brace'' design on the proposed Worksheet 4999
could be confusing. Section II of the proposed worksheet analyzed the
design of the ``stabilizing brace'' device separately from the overall
configuration of the firearm. The Department agrees with commenters'
concerns that the question of whether a shoulder stock design is
``known'' would be difficult for individuals to answer. Therefore, the
design factors--``Not based on a known shoulder stock design'';
``Incorporates shoulder stock design feature(s)''; and ``Based on a
known should stock design''--are not included in the objective design
features of a rifle in this rule. For this and other reasons discussed
herein, the rule does not adopt the proposed worksheet or the point
system. Moreover, the objective design features under the final rule no
longer include the effectiveness of the ``brace'' device in assisting
with one-handed firing of the firearm, but instead involve
consideration of whether the firearm, as configured with an accessory,
component, or other rearward accessory (like a ``stabilizing brace'')
is designed, made, and intended to be fired from the shoulder, as
required by the statutory definition of a rifle. As noted above, ATF is
simultaneously publishing information with this rulemaking that will
inform the public of (1) commonly sold pistol 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 whether their firearm equipped with a
``stabilizing brace'' is a rifle as defined by the GCA and NFA.
vi. Rear Surface Area
Comments Received
Commenters pointed out that one problem with the NPRM's criterion
related to ``rear surface area''--i.e., ``Device incorporates features
to prevent use as a shouldering device,'' ``Minimized Rear Surface
lacking features to discourage shouldering,'' ``Rear Surface useful for
shouldering the firearm,'' and ``Material added to increase Rear
Surface for shouldering''--is that ATF provided no metric for
quantifying the surface area. They felt that ATF had not provided
adequate information regarding what amount of material is ``minimal''
or ``added'' for consideration of whether the rear surface area is
useful for shouldering. A commenter argued that ATF failed to provide a
reasonable explanation for its determination that the SB Tactical SBA3
device has material added to the rear surface area. The commenter
asserted that the criterion seemed subjective and would not assist the
public or industry to determine if a firearm is ``designed or intended
to be fired from the shoulder''
[[Page 6522]]
without actual metrics. The commenter also stated that it was unclear
what ``feature'' a ``stabilizing brace'' could incorporate to make it
``difficult'' to use as a shouldering device--particularly given that a
``stabilizing brace''-equipped firearm that ``could possibly be
shouldered'' would accrue one point under Worksheet 4999. According to
the commenter, with no specific metrics, use of words like
``possibly,'' ``sufficient,'' and ``clearly designed,'' as used in the
NPRM when discussing this feature, rendered any determination
completely subjective.
Department Response
After considering the comments, the Department agrees that many of
the criteria listed on Worksheet 4999 were open to subjective
interpretation and application. For example, the Department agrees that
the NPRM did not provide adequate information to define the meaning of
``minimal'' or ``added'' material with respect to the rear surface area
of a ``stabilizing brace.'' Specifically, the Department did not
provide a particular metric to quantify the rear surface area to
indicate when the firearm would accrue the number of points assigned.
For example, the criteria ``Minimized Rear Surface lacking features for
discourage shouldering,'' ``Rear Surface useful for shouldering the
firearm,'' and ``Material added to increase Rear Surface Area'' were
insufficiently clear when used in the NPRM or worksheet to describe the
rear surface area of the ``stabilizing brace.'' Therefore, as
previously discussed, the Department is not adopting Worksheet 4999 or
its point values for this rule.
Nevertheless, because both the GCA and NFA define a ``rifle'' as a
weapon designed, made, and intended to be fired from the shoulder,
surface area remains a relevant consideration because having a rear
surface area is necessary to shoulder a weapon. Therefore, the
Department has concluded that any surface area provided by an
accessory, component, or other rearward attachment (e.g., a
``stabilizing brace'') must be considered prior to the other listed
objective design features in this rule. In a rifle configuration, a
rear surface area is often provided by a ``stock,'' ``shoulder stock,''
or ``butt stock,'' as demonstrated below:
BILLING CODE 4410-FY-P
[[Page 6523]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.035
---------------------------------------------------------------------------
\107\ Colt's Manufacturing Company, Inc., Colt Safety and
Instruction Manual: Colt Sporter Rifles (1993), https://s3.us-east-2.amazonaws.com/media.connecteddatasolutions.com/downloads/sporter+rifles.pdf.
\108\ Colt's Manufacturing Company, Inc., Colt Safety and
Instruction Manual: Colt AR-15 Semiautomatic Rifles (1995), https://s3.us-east-2.amazonaws.com/media.connecteddatasolutions.com/downloads/ar-15_semiautomatic_rifle_%26_carbine.pdf.
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[[Page 6524]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.036
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\109\ Winchester Repeating Arms, Winchester Model 70 Bolt-Action
Rifle Owner's Manual 9 https://www.winchesterguns.com/content/dam/winchester-repeating-arms/support/owners-manuals/2021/20-WRA-338_Model%2070_OM_WEB.pdf (last visited Dec. 12, 2022).
\110\ Smith & Wesson, Safety & Instruction Manual M&P 15-22
Rifle 12 (2019), https://www.smith-wesson.com/sites/default/files/owners-manuals/M%26P_1522_Rifle_111519_3005746.pdf.
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[[Page 6525]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.037
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\111\ Sig Sauer Inc., Sig MPX Operator's Manual: Handling &
Safety Instructions 26-27 https://www.sigsauer.com/media/sigsauer/resources/operators-manual-mpx-1811295-01-rev03-lr.pdf (last visited
Dec. 12, 2022).
\112\ Live Q or Die, LLC., Honey Badger SD, liveqordie.com,
https://liveqordie.com/honey-badger-sd/ (last visited Dec. 12,
2022).
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[[Page 6526]]
Recently, many heavy pistols, and some rifle variants, have been
manufactured or made in combination with ``stabilizing braces'' (rather
than a shoulder stock) to create a surface area on the rear of the
weapon with the attached ``brace'' device.
[GRAPHIC] [TIFF OMITTED] TR31JA23.038
---------------------------------------------------------------------------
\113\ Smith & Wesson Inc., Safety & Instruction Manual M&P 15-22
Pistol 12 (2020), https://www.smith-wesson.com/sites/default/files/owners-manuals/M_P1522_Pistol_Manual_101520_3013615_web.pdf.
\114\ Sig Sauer Inc., SIG MPX Copperhead Operator's Manual:
Handling & Safety Instructions 26-27, https://www.sigsauer.com/media/sigsauer/resources/OPERATORS_MANUAL_MPX_COPPERHEAD_1811291-01_REV02_LR.pdf (last visited Dec. 12, 2022).
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[[Page 6527]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.039
Notably, the definition of rifle does not include the term
``stock,'' nor does it include the term ``stabilizing brace.'' However,
a ``stabilizing brace'' device may--like a shoulder stock on a rifle--
provide surface area for a firearm that allows shouldering of the
weapon, and, therefore, the inclusion of such rear surface area
reflects an objective intent that the device is to be fired from the
shoulder. For example, a review of the ``SIG MPX Copperhead'' in
Ballistic Magazine demonstrated how the surface area of a ``stabilizing
brace'' may be used to shoulder the weapon. The Department notes that
this firearm is marketed as a pistol.
---------------------------------------------------------------------------
\115\ Live Q or Die LLC., Honey Badger Pistol, liveqordie.com,
https://liveqordie.com/honey-badger-pistol/ (last visited Dec. 12,
2022).
\116\ Greg Lickenbrock, SIG Copperhead: First Look at the Ultra
Compact SIG Sauer MPX 9mm, Ballistic Magazine (Oct. 16, 2019),
https://www.ballisticmag.com/sig-sauer-mpx-copperhead-first-look/.
[GRAPHIC] [TIFF OMITTED] TR31JA23.040
As previously discussed, the appropriate inquiry is whether the
firearm, as configured, is designed, made, and intended to be fired
from the shoulder. For example, the manufacturer of the above
referenced ``SIG MPX Copperhead'' listed the ``stabilizing brace,'' the
pivoting contour brace, as the ``stock'' type. This terminology
demonstrates that the manufacturer recognizes the similar functions of
a traditional shoulder stock and this ``stabilizing brace.''
[[Page 6528]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.041
For further comparison, below are images showing shoulder stocks
next to ``stabilizing brace'' devices. Each image shows that the stock
and a ``stabilizing brace'' device both provide surface area to
shoulder the firearm.
---------------------------------------------------------------------------
\117\ Sig Sauer Inc., SIG MPX Copperhead (Apr. 24, 2022),
https://web.archive.org/web/20220424154840/https://www.sigsauer.com/sig-mpx-copperhead.html.
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[[Page 6529]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.042
The Department does not believe it is appropriate or necessary to
specify a quantifiable metric for what constitutes surface area that
allows for shouldering of the weapon. Under the final rule, any device
or extension on the rear of the firearm that provides any surface area
that allows for shouldering of the weapon is to be considered first
before considering other objective design features. In making this
determination, ATF will not attempt to precisely measure or quantify
the surface area or make the determination based on the existence of
any minimum surface area. Instead, ATF will consider whether there is
any surface area on the firearm that can be used to shoulder fire the
weapon. As described, this feature of the weapon will be considered in
conjunction with other objective design features, including whether
this surface area is necessary for the cycle of operations of the
firearm.
---------------------------------------------------------------------------
\118\ Jeremy S., Gun Review: Honey Badger by Q (SBR and Pistol),
The Truth About Guns (Jan. 3, 2019), https://www.thetruthaboutguns.com/gun-review-honey-badger-by-q-sbr-and-pistol/.
---------------------------------------------------------------------------
The Department acknowledges that a majority of firearms equipped
with a ``stabilizing brace'' have surface area that allows a user to
shoulder fire the weapon, but this does not mean that all such weapons
would be classified as ``rifles.'' Rather, if the weapon has such a
surface area, then the weapon would be examined to determine if other
factors listed in the rule --e.g., sights or a scope with eye relief
that require shouldering of the firearm or length of pull consistent
with rifles--indicate that the firearm is designed, made, and intended
to the be fired from the shoulder. In addition, it is possible for a
firearm with an attached rearward device to be designed without
including a surface area that allows shouldering. For example, an
elastic strap that wraps around the shooter's wrist and buffer tube on
an AR-type firearm is an
[[Page 6530]]
attachment that does not provide surface area to shoulder fire a
weapon.
Next, the Department agrees that the NPRM did not articulate what
features would prevent the shouldering of a ``stabilizing brace.'' In
contrast to surface area that allows the firearm to be fired from the
shoulder, as exemplified in the firearms pictured above, a weapon may
include a feature intended specifically to prevent shooting the firearm
from the shoulder. The Department therefore clarifies that a firearm is
not designed, made, and intended to be fired from the shoulder if the
firearm includes a design feature that prevents shouldering. A
potential example of such a feature is a permanently attached
protrusion that would dig into a shooter's shoulder should the firearm
be fired from the shoulder.
vii. Adjustability
Comments Received
A majority of the commenters disagreed with the NPRM's
characterization of the ``adjustability'' factor for ``stabilizing
braces'' and the associated points. One commenter disagreed with ATF's
assessment of adjustability in Section II, noting that it was limited
to two entries in Section II--one is ``[n]ot adjustable, fixed
design,'' and one for ``[a]djustable or telescoping attachment designed
for shouldering.'' The commenter stated that these two entries under
``Adjustability'' indicated that these were the only two possibilities,
which the commenter asserted was misleading because there was actually
a third possibility: adjustable or telescoping, but not for
shouldering.
Similarly, other commenters stated that the proposed rule's wording
presumed that an adjustable or telescoping brace was designed for
shouldering when in fact adjustability, in their opinion, does not
itself facilitate shouldering. Other commenters argued that ATF should
not give a telescoping attachment two points because braces adjust for
varying arm lengths and do not necessarily correlate with shouldering
the ``stabilizing brace.'' Many commenters wrote of their different
statures--tall or petite--as the reason they needed the ``stabilizing
brace'' to be adjustable so that they had better support when shooting
the firearm. Another commenter stated, ``[g]iven the wide variety of
forearm circumferences, adjustability is a must'' because ``[t]o
operate effectively, a cuff-type stabilizing brace must fit snugly over
the shooter's forearm.'' One commenter observed that the NPRM
acknowledged that, when it comes to rifle stocks, generally, taller
shooters require a longer length of pull and shorter shooters require a
shorter length of pull, but stated that the NPRM failed to make a
similar recognition when it comes to users of stabilizing braces
because the NPRM asserted that less variation exists between shooters
when a pistol is involved because a shooter merely requires a device
that reaches from the back of the firearm to the forearm.
Ruger argued that adjustability is doubly penalized because it
automatically accrues three points under Section II under
``Adjustability'' for ``adjustable or telescoping attachment designed
for shouldering'' and one point under ``Accessory Design'' for being
identified as a ``shoulder stock design feature.'' The commenter argued
that the fact ``[t]hat the same feature is both a minor and a moderate
indicator of the same `intended use' aptly demonstrates the arbitrary
nature of the factoring criteria.'' The commenter argued that a
disqualifying feature should appear in either Section II or Section
III, where accrual of four or more points for each section no longer
qualifies it as a brace-equipped pistol, but not in both sections.
Department Response
The Department agrees with commenters' concerns regarding the
``adjustability'' factor for ``stabilizing braces'' and the associated
points on the proposed Worksheet 4999. Specifically, the Department
agrees with commenters' concern regarding the ``double penalty'' that
would result from considering the ``stabilizing brace'' device's
adjustability in evaluating both the ``Adjustability'' and the
``Accessory Design'' factors. The same commenter also expressed concern
regarding the same feature receiving different points in the factoring
criteria and the arbitrary nature of that assessment. The Department
agrees and, as mentioned, does not adopt the adjustability factor as
proposed because it primarily focused on evaluating the effectiveness
of a ``stabilizing brace'' device itself rather than the overall
configuration of the firearm.
However, the Department disagrees with commenters who stated that
adjustability is not an objective design feature indicating a firearm
is designed, made, and intended to be fired from the shoulder. The
adjustability of an attachment that uses a rifle receiver extension
with the ability to lock in various positions provides fixed horizontal
support. Horizontal support means that an individual can place pressure
on the rear of the device when firing the weapon without the device or
attachment sliding forward. This feature is common with adjustable
shoulder stocks.
[GRAPHIC] [TIFF OMITTED] TR31JA23.043
[[Page 6531]]
The examples below illustrate buffer tubes with adjustment notches
that allow a device to lock into place. The ability to lock any device
into various positions on the rear of the firearm provides horizontal
support, as described above, and allows the device to move rearward
toward the shooter to adjust the length of pull to shoulder the
weapon.\119\ Therefore, an adjustable or telescoping attachment that
extends rearward toward a shooter and has the ability to lock into
various positions is an important objective design feature to consider
because it provides horizontal support and allows length of pull to be
adjusted. Adjustability in the context of length of pull allows the
shooter to exercise better control, achieve better accuracy, and better
maintain comfort when shooting based on the shooter's body or shooting
preferences. For these reasons, in the final rule, when a firearm
equipped with a ``brace'' device has surface area that allows the
firearm to be shoulder fired, it is appropriate to also examine
adjustability when considering the length of pull of the firearm,
discussed below, to determine if the firearm is designed, made, and
intended to be fired from the shoulder.
---------------------------------------------------------------------------
\119\ See Wing Tactical, Fixed vs. Adjustable Stocks (Sept. 11,
2015), https://www.wingtactical.com/blog/fixed-vs-adjustable-stocks/
(``AR-15 Adjustable Stock-Keep this in mind: A fixed stock can't get
any shorter. But a collapsible or adjustable stock can almost always
get longer . . . . [A]djustable stocks are perfect for shooters who
don't always fit the `average joe' arm length, because they can
always adjust to the proper length-of-pull. What's more, these kinds
of stocks are also helpful when you're shooting in groups with
people taking turns on the same rifle. It's important to remember
that adjustable stocks might not be as durable as the more rigid
fixed stocks.'' (emphasis omitted)); Magpul, PRS[supreg] GEN3
Precision-Adjustable Stock, https://magpul.com/firearm-accessories/stocks/ar15-m4-m16-sr25-m110-ar10/prs-gen3-precision-adjustable-stock.html?mp_global_color=118 (last visited Dec. 12, 2022) (``The
PRS GEN3 is a field precision stock for AR15/M16 and AR10/SR25
platforms, featuring tool-less length of pull and cheek piece height
adjustment. With solid adjustments for length of pull and cheek
piece height via aluminum detent knobs, the PRS GEN3 (Precision
Rifle/Sniper) stock provides a stable interface and is intended for
semi-automatic sniper or varmint type rifles. Offering a nearly
universal fit, it is optimized for rifle-length receiver extensions
but will also mount to many mil-spec carbine and A5-length
tubes[.]'').
[GRAPHIC] [TIFF OMITTED] TR31JA23.044
BILLING CODE 4410-FY-C
The Department also disagrees with commenters that said it must
consider the variations among shooters, including different forearm
circumference, arm length, and height, in weighing the adjustability
factor. As previously discussed, beginning in 2012, ATF misinterpreted
the statutory definition of rifle because it improperly relied on the
purported intent of ``stabilizing brace'' device manufacturers and
users and incorrectly concluded that, if the firearm can be fired with
one hand using a ``stabilizing brace,'' then it cannot be designed,
made, and intended to be fired from the shoulder. While ATF may
consider the purported intent or use of the device, the best
interpretation of the statute calls for an assessment of whether the
maker or manufacturer's stated intent is consistent with the objective
design features of overall configuration of the weapon; this
interpretation ensures that purported intent or use cannot be easily
used to circumvent the NFA's requirements. A firearm's classification
does not change even if the firearm can be used in more than one manner
by a particular shooter. Thus, the final regulatory text incorporates
in the definition of ``rifle'' an adjustable or telescoping attachment
with the ability to lock into various positions along the buffer tube
or other attachment method as an objective design feature to be
considered when examining length of pull on a firearm that has a
surface area that allows the weapon to be fired from the shoulder.
viii. Stabilizing Brace Support
Comments Received
Commenters raised questions about Section II of Worksheet 4999
regarding evaluation of ``Stabilizing Support.'' One commenter stated
that assigning
[[Page 6532]]
points based upon ATF's assessment of whether a ``stabilizing brace''
is ``effective'' as a brace was misguided because, although an
effective brace might provide some indication of whether a weapon is or
is not to be shoulder fired, ATF has no grounds for assuming that an
ineffective or a poorly functioning ``brace'' indicates that a weapon
is intended to be fired from the shoulder, is useful for shouldering,
or was created to circumvent the NFA. The same commenter stated that
the ATF should provide specific metrics (e.g., a specific number of
inches) to determine when a ``fin-type'' design has an arm strap of
suitable length or when a ``cuff-type'' design is capable of ``fully''
wrapping around the arm.
Similarly, with regard to ``cuff-type'' designs, a few commenters
faulted ATF for assigning in the NPRM different numbers of points to
the SB Mini and SBA3 ``stabilizing brace'' devices based on whether
they ``partially'' wrapped around a shooter's arm even though,
according to the commenters, the two devices utilize similar arm cuff
sizes. The commenters asserted that because ``partially'' means ``to
some extent,'' they did not understand why the SB Mini ``partially''
wraps around the forearm but the SBA3 does not. The difference in point
accumulation and how to apply the standard to different brace models
was unclear because how much of the shooter's forearm is encircled
would depend on the shooter.
Similarly, another commenter believed that ATF confused
``stabilizing support'' regarding the ``cuff-type'' braces. The
commenter asserted that this criterion was ``completely subjective and
will vary significantly from person to person,'' asking ``how can this
be an objective, measurable standard? A brace that may fully wrap
around a small person's arm may not wrap around the arm of a
bodybuilder, for example.'' The commenter also asked, ``why is a cuff-
or fin-type design with a strap made of elastic material more like a
stock than one without elastic material?'' Another commenter stated it
was unclear for cuff-type ``stabilizing braces'' how much of the cuff
must engage the arm for it to ``partially wrap around the shooter's
forearm.''
The same commenter critiqued ATF's approach to examining ``braces''
with a counterbalance design, stating that the ``folding feature''
makes good sense because it allows the counterbalance arm to be
streamlined for ease of carry.
Department Response
The Department agrees with commenters' concerns regarding the
assessment of points on Worksheet 4999 for ``cuff-type'' brace device
designs that ``partially'' or ``fail'' to wrap around the arm.
Specifically, the Department agrees that terms like ``partially'' and
``fail'' were not sufficiently defined and that it would be difficult
to make a uniform determination on whether a ``cuff-type'' brace
partially or fails to wrap around a particular shooter's arm. In the
NPRM, the Department explained that stabilizing support is a vital
characteristic to consider in determining a firearm's classification
because it provides evidence of the purported purpose of the attached
device. However, the Department re-evaluated this position and
determined that an analysis of whether the ``brace'' device provides
stabilizing support for single-handed fire is distinct from whether a
firearm, as configured with the ``brace'' device, is designed, made,
and intended to be fired from the shoulder. While the purported intent
of the device manufacturers may be considered, the way the ``brace''
device is or can be used is not determinative as to whether the firearm
is designed and intended to be fired from the shoulder. Therefore,
stabilizing support is not a relevant objective design feature and
therefore is not incorporated into this rule.
Although stabilizing support is not adopted as an objective design
feature, the Department responds to commenters who opined that a
folding counterbalance design \120\ makes good sense for ease of carry.
While the folding design may make the firearm easier to carry, the
Department disagrees with the notion that this purpose would indicate
the firearm is not designed and intended to be fired from the shoulder.
A counterbalance design includes a folding feature that provides a rear
surface area on the ``stabilizing brace'' when closed (or folded), as
demonstrated below. As previously discussed, a surface area that allows
shouldering of the weapon remains an objective design feature that a
firearm is designed, made, and intended to be fired from the shoulder.
---------------------------------------------------------------------------
\120\ A counterbalance design is a design that uses the weight
of the firearm as a lever to push the ``stabilizing brace'' into the
forearm to provide stability during single-handed firing. This
design does not typically include straps because the ``stabilizing
brace'' contacts the side and bottom of the shooter's arm and is
held in place by the weight of the firearm, using the shooter's hand
as a fulcrum. See, e.g., US Patent 10,690, 442 B2 Dec. 6, 2018.
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BILLING CODE 4410-FY-P
[[Page 6533]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.045
BILLING CODE 4410-FY-C
ix. Length of Pull
Comments Received
Commenters asserted that the proposed length of pull ``scale''
makes little sense and ``discounts the fact that: (1) shooters have
different length forearms; (2) shooters may prefer the brace to be
mounted to their forearm in different locations; and (3) a brace-
equipped pistol's design and weight balance will necessitate a brace's
varied position on a forearm.'' Other commenters further noted that ATF
provided no explanation for its ``length of pull'' ranges, and they
asserted that this concept is not found in any statute or regulation,
but rather appeared to be a creation of ATF bureaucrats. Another
commenter stated that length of pull is normally associated with
``rifles'' and shotguns with stocks. Because ``braces'' are not stocks,
the commenter argued that the entire section was invalid from the
premise. A comment from the congressional Second Amendment Caucus
agreed with other commenters that length of pull concept is ``not found
in any statutes, nor is it defined in any of the agency's regulations .
. . . ATF opines that `[l]ength of pull is a common measurement of
firearms that describes the distance between the trigger and the center
of the shoulder stock.' But a `firearm' or `pistol' does not have a
stock, even if it uses a stabilizing brace, and ATF fails to explain
why it is appropriate to use a rifle measurement when analyzing
pistols.'' (Citation omitted.)
Commenters also argued that the length of pull measurements were
arbitrary and subjective because they were based on having the
accessory in the ``Rear most `Locked Position.' '' One of these
commenters stated that it was unclear what the term ``locked position''
meant and also unclear how length of pull would be measured if there
was no locked position. The commenter found ATF's examples confusing
and stated that approximate measures from the examples were not useful.
Another commenter stated that ``length of pull'' in the proposed
worksheet was ambiguous.
The Gun Owners of America argued that ATF should have described the
length of pull based on how a firearm with an attached device is
``actually configured,'' not how it ``theoretically''
[[Page 6534]]
could be configured in the rear-most, locked position. ``Confusingly,
the NPRM appears to admit as much, claiming that a brace `will accrue
more points the further it is positioned rearward,' indicating that it
should be measured the way it is actually configured.'' Another
commenter asserted that braces are more effective when they interact
with a user's forearm close to the elbow to provide optimum leverage,
and that users with longer forearms should not be penalized by ATF's
length determinations.
One commenter provided a detailed discussion of ``length of pull''
and ``rear surface area.'' He suggested that the ``Department should
change the worksheet into a two-tiered approach. As the first step, ask
whether the combination of `length of pull' and `rear surface area'
make the braced pistol suitable for firing from the shoulder.''
(Emphasis omitted.) The commenter stated that if the answer is ``no''
then the braced pistol should be approved. On the other hand, if
``yes,'' then additional features should be considered, and additional
points possibly awarded. The commenter suggested that other features
need not be considered ``unless the length of pull, and rear area
surface are suitable for firing from the shoulder.'' To reiterate this
point, the same commenter stated that, ``[o]n the proposed worksheet,
the `rear surface area' criterion is independent of the `adjustability'
and `length of pull' criteria. This is not appropriate; in the case of
these three criteria, each criterion must be examined in the context of
the others.'' (Citation omitted.) Another commenter stated that, if not
removed as a factor, then ``length of pull'' should be revised so that
zero points are assigned to a firearm with a ``length of pull'' less
than 13-1/2 inches, consistent with ATF's prior findings.
Department Response
The Department agrees with commenters that the length of pull
``scale'' in Worksheet 4999 is confusing but disagrees that the scale
must account for length of shooting preferences of different shooters.
The Department also disagrees that length of pull is a concept or
standard that is ambiguous, subjective, or the creation of ATF. Length
of pull is a well-known standard in the firearms industry. SAAMI
references length of pull as well as other features when discussing
``stock dimensions'' \121\ and defines length of pull as ``[t]he
distance from the center of the trigger to the center of the buttplate
or recoil pad.'' \122\ The NRA Firearms Sourcebook also defines
``length of pull'' as the distance between the center trigger and the
center of buttplate or recoil pad the shoulder stock.\123\ This
standard is also commonly recognized by industry; specifically, firearm
manufacturers, such as Ruger, Mossberg, LWRC International, CZ-USA,
Browning, and Remington, all reference length of pull in their
advertising of firearms or firearms accessories.\124\ Therefore, it is
reasonable for the Department to consider lengths of pull consistent
with rifles as an objective design feature indicating that a firearm is
designed to be fired from the shoulder.
---------------------------------------------------------------------------
\121\ SAAMI, Glossary, Sporting Arms and Ammunition
Manufacturers' Institute, Inc., https://saami.org/glossary/stock-dimensions/ (last visited Dec. 13, 2022).
\122\ SAAMI, Glossary, Sporting Arms and Ammunition
Manufacturers' Institute, Inc., https://saami.org/glossary/stock-dimensions/ (last visited Dec. 13, 2022).
\123\ Michael E. Bussard and Stanton L. Wormley, Jr., NRA
Firearms Sourcebook 137 (2006).
\124\ Ruger, Ruger Precision Rifle, https://www.ruger.com/products/precisionRifle/specSheets/18084.html (last visited Dec. 12,
2022); O.F. Mossberg & Sons, Inc., Mossberg International 817,
https://www.mossberg.com/mossberg-international-817-38191.html (last
visited Dec. 12, 2022); LWRC International, LWRCI UCIW Stock Kit,
https://www.lwrci.com/LWRCI-UCIW-Stock-Kit-_p_38.html (last visited
Dec. 12, 2022); CZ USA, CZ 1012, https://www.cz-usa.com/products/cz-1012/ (last visited Dec. 12, 2022); Browning, X-Bolt Mountain Pro LR
Burnt Bronze- Bolt- Action Rifle, https://www.browning.com/products/firearms/rifles/x-bolt-mountain-pro-ir.html (last visited Dec. 22,
2022); Remington, Model 700 SPS Tactical AAC-SD, https://www.remarms.com/rifles/bolt-action/model-700/model-700-sps-tactical-aac-sd (last visited Dec. 22, 2022).
---------------------------------------------------------------------------
The Department disagrees that measuring length of pull in the
``rear most'' locked position is arbitrary. A length of pull on a rifle
appropriately adjusted for the shooter (i.e., size or shooting
preferences) allows a shooter to exercise better control, improve
accuracy, and maintain comfort when shooting based on the shooter's
body or shooting preferences.\125\ For the reasons discussed herein and
in section IV.B.3.b.vii of this preamble, whether there is an
adjustable or telescoping attachment with the ability to lock into
various positions along a buffer tube, receiver extension, or other
attachment method is considered when examining a firearm's length of
pull to determine if the firearm is designed, made, and intended to be
fired from the shoulder.
---------------------------------------------------------------------------
\125\ See Tyler Hughes, Length of Pull: A Complete Guide for
Fitting Your Rifle to Your Body (ballisticmag.com), Ballistic
Magazine (June 24, 2021), https://www.ballisticmag.com/length-of-pull-guide/; Suzanne Wiley, The Shooter's Log: What is Length of
Pull and Why Does It Matter, Cheaper Than Dirt (July 10, 2013),
https://blog.cheaperthandirt.com/length-pull-matter/; Frankie Chan,
What is Length of Pull on an AR-15?, Wing Tactical (Mar. 9, 2022),
https://www.wingtactical.com/blog/what-is-length-of-pull-on-an-ar15/
; Savage Arms, Fitment: Why Rifle Fit Matters (Mar. 5, 2020),
https://savagearms.com/blog?p=fitment-why-rifle-fit-matters.
---------------------------------------------------------------------------
How ATF would measure the length of pull under this rule would
depend on the type of ``brace'' device attached to the weapon. First,
for devices with fixed material or a device in a fixed position on the
rear of the firearm, the length of pull of a firearm would be measured
from the device's fixed position to the center of the trigger. This is
the position by which an individual may shoulder the firearm. Second,
for devices that are not fixed and instead have a mechanism to lock
into place in various locations along a buffer tube or receiver
extension, ATF would measure length of pull with the device in the
rearmost locked position. As earlier discussed, the benefit of an
adjustable stock, ``stabilizing brace,'' or other shouldering device
that can lock into position along a buffer tube or receiver extension
is that it adjusts the length of pull of the firearm and offers
horizontal support (i.e., to use against the shoulder) based on
shooter's preferences.\126\
---------------------------------------------------------------------------
\126\ See Savage Accuracy, Understanding Length-of-Pull,
YouTube.com (Oct. 31, 2017), https://www.youtube.com/watch?v=Ler-d3MDLA0&t=109s; Vickers Tactical, BCM Training Tip: Buttstock
Length, YouTube.com (Mar. 30, 2018), https://www.youtube.com/watch?v=cifL2QYHp3I; Viking Tactics, Tactical Tip of the Day: Proper
Buttstock Length, YouTube.com (Feb. 8, 2019), https://www.youtube.com/watch?v=ER-s6pSCxjc; Brownells, Inc, The Magpul PRS
Gen3 AR15/M16 Stock, YouTube.com (Feb. 26, 2018), https://www.youtube.com/watch?v=obFCK3g19wI.
---------------------------------------------------------------------------
The Department has chosen to use the rearmost locked position for
such devices because the Department believes that this measurement will
best indicate whether the firearm is designed, made, and intended to be
fired from the shoulder. The fact that an adjustable stock,
``stabilizing brace,'' or other shouldering device might, in certain
configurations, be appropriate for firing without shouldering the
weapon does not preclude a conclusion that the weapon with the device
is still designed, made, and intended to be fired from the shoulder. To
the contrary, if the device in the rearmost locked position results in
a length of pull that is consistent with shoulder-fired weapons, that
length of pull is a design feature that--in combination with other
features--could indicate that the weapon is designed, made, and
intended to be fired from the shoulder. The possibility for non-
shoulder firing with the device in other positions does not preclude
this conclusion because, as explained above, the potential alternate
uses of a weapon do not eliminate the
[[Page 6535]]
likelihood that the weapon--in addition to these alternate uses--is
designed, made, and intended for shoulder firing. ATF accordingly will
examine length of pull with the device in the rearmost position to
determine whether shoulder firing is the designed and intended use,
even if the device in other positions might not be amenable to such
firing. Therefore, it is appropriate for ATF to consider the longest
possible length of pull on a device that can adjust and lock into place
along a buffer tube or receiver extension.
Finally, for a firearm that includes a device that is movable but
cannot be affixed into various positions along the buffer tube or
receiver extension, length of pull would be measured with the device
collapsed. This is because the device would collapse toward the
receiver of the firearm if a shooter were to press his or her shoulder
against it. The chart below summarizes these three methods of measuring
length of pull depending on the type of stock or other device used to
shoulder the firearm.
------------------------------------------------------------------------
------------------------------------------------------------------------
Fixed non-adjustable stock, Measure the distance between
``stabilizing brace,'' or other device. the center of the trigger and
the rear center of the device
in the fixed position.
Adjustable stock, ``stabilizing Measure the distance between
brace,'' or other device with the the center of the trigger and
ability to lock into various positions the rear center of the device
along the buffer tube or other in the rearmost locked
attachment method. position.
A stock, ``stabilizing brace,'' or Measure the distance between
other device that is movable but the center of the trigger and
cannot be in a fixed position or made the rear center of the device
stationary along the buffer tube. with the device collapsed.
------------------------------------------------------------------------
Like the industry, FATD measures the length of pull from the center
of the trigger to the rear center of the stock, ``stabilizing brace,''
or other shouldering device. FATD previously determined the standards
for length of pull by a review of industry publications and by
measuring the length of pull of various rifles.\127\ FATD determined
the average ``length of pull'' is between 13\1/2\ and 14\1/2\ inches
for rifles. ATF's own analysis is consistent with the NRA Firearms
Sourcebook, which also provides that the average length of pull found
on shoulder-fired weapons is approximately 13\1/2\ to 14\1/2\
inches.\128\ However, many more modern and common rifles are equipped
with shouldering devices that result in shorter length-of-pull-
measurements. For example, AK-types usually have a length of pull
between 12\1/2\ to 13\1/2\ inches. For those firearms that are a
variant of a rifle,\129\ ATF would compare the length of pull between a
firearm with a ``stabilizing brace'' or other attached device against
that rifle configuration. For example, the length of pull of an AK-type
pistol equipped with a ``stabilizing brace,'' which has a length of
pull of over 12\1/2\ inches, would be compared to AK-type rifles.
Similarly, a Glock-type pistol with a ``stabilizing brace'' would be
compared to a Glock-type pistol equipped with a stock.
---------------------------------------------------------------------------
\127\ See supra notes 121-123 and accompanying discussion.
\128\ See supra note 123.
\129\ See 87 FR at 24693 (discussing variants).
---------------------------------------------------------------------------
FATD measured the length of pull of various rifles from the
National Firearms Collection as displayed in the chart below.
----------------------------------------------------------------------------------------------------------------
Manufacturer Model Caliber LOP
----------------------------------------------------------------------------------------------------------------
COLT.................................... SMG....................... 9x19mm.................... 13''
COLT.................................... AR-15..................... .223 REM.................. 13''
Q....................................... HONEY BADGER.............. .300 BLK.................. 13''
LWRC.................................... M6........................ .223 REM.................. 13\7/8\''
SIG SAUER............................... MCX....................... .223 REM.................. 13\1/4\''
SIG SAUER............................... MCX RATTLER............... .300 BLK.................. 12\1/4\''
MAXIM DEFENSE........................... MDX....................... .223 REM.................. 11\7/8\''
MAXIM DEFENSE........................... PDX....................... .223 REM.................. 12''
LRB ARMS................................ M15SA..................... .223 REM.................. 13''
BCI DEFENSE............................. SQS15..................... .223 REM.................. 11\3/4\''
H&K..................................... MK16...................... .223 REM.................. 14''
Z-M WEAPONS............................. LR300..................... .223 REM.................. 13\7/8\''
OLYMPIC ARMS............................ M.F.R..................... .223 REM.................. 15''
ARSENAL................................. AKS-74U................... .223 REM.................. 13\1/2\''
ARSENAL................................. SAS M-7................... 7.62x39mm................. 13''
YUGOSLAVIA.............................. AK-47..................... 7.62x39mm................. 12\3/4\''
ZASTAVA................................. AK-47..................... 7.62x39mm................. 13\1/4\''
IRAQ.................................... TABUK..................... 7.62x39mm................. 12\7/8\''
RUSSIAN................................. KRINK..................... 7.62x39mm................. 12\5/8\''
MAGUA INDUSTRIES........................ MINI-BERYL................ .223 REM.................. 12\1/4\''
H&K..................................... MP5K...................... 9x19mm.................... 12\5/8\''
H&K..................................... MP5....................... 9x19mm.................... 13''
H&K..................................... UMP....................... .45 ACP................... 14\5/8\''
BOBCAT WEAPONS.......................... BW-5...................... 9x19mm.................... 13\3/4\''
HK...................................... USC....................... .45 ACP................... 14\1/4\''
S.W.D................................... CM-11..................... 9x19mm.................... 14''
S.W.D................................... M-11/NINE................. 9x19mm.................... 16\7/8\''
M.A.C................................... M10....................... .45 ACP................... 13\7/8\''
MAC PMF................................. M11....................... .380 ACP.................. 13\1/4\''
JERSEY ARMS............................. AVENGER................... .45 ACP................... 16\1/2\''
RPB..................................... M10....................... 9x19mm.................... 16\1/2\''
IMI..................................... UZI....................... 9x19mm.................... 15\1/2\''
IMI..................................... MINI UZI.................. 9x19mm.................... 16''
IMI..................................... MICRO UZI................. 9x19mm.................... 14''
IMI..................................... MICRO UZI................. 9x19mm.................... 14\1/8\''
[[Page 6536]]
IWI..................................... UZI PRO................... 9x19mm.................... 14\3/4\''
LWRC.................................... SMG45..................... .45 ACP................... 12\1/2\''
SIG SAUER............................... MPX....................... 9x19mm.................... 11''
SIG SAUER............................... MPX....................... 9x19mm.................... 13\1/4\''
SIG SAUER............................... MPX....................... 9x19mm.................... 12\1/2\''
B&T..................................... APC9...................... 9x19mm.................... 13\1/4\''
B&T..................................... TP9....................... 9x19mm.................... 15\1/2\''
BERETTA................................. CX4 STORM................. 9x19mm.................... 13\3/4\''
BERETTA................................. CX4 STORM................. .40 S&W................... 13\1/4\''
DBX..................................... 5.7DBX.................... 5.7x28mm.................. 11''
CZ...................................... EVO SCORPION.............. 9x19mm.................... 14\1/2\''
CZ...................................... EVO SCORPION.............. 9x19mm.................... 14\1/2\''
CZECH................................... SKORPION.................. .32 ACP................... 13\3/4\''
GRAND POWER............................. STRIBOG SP9A1............. 9x19mm.................... 13\1/2\''
INTRATEC................................ MP9....................... 9x19mm.................... 12\1/2\''
INTRATEC................................ TEC-KG9................... 9x19mm.................... 13\1/2\''
CALICO.................................. M900...................... 9x19mm.................... 16\1/2\''
RUGER................................... PC CARBINE................ 9x19mm.................... 13\1/2\''
RECOVER TACTICAL........................ PI-X...................... 9x19mm.................... 15\1/4\''
FN...................................... P90....................... 5.7x28mm.................. 13\3/8\''
FN...................................... PS90...................... 5.7x28mm.................. 13\3/8\''
HK...................................... MP7....................... 4.6x30mm.................. 14\1/4\''
KRISS................................... VECTOR.................... .45 ACP................... 12\1/2\''
KRISS................................... VECTOR.................... .45 ACP................... 12\1/2\''
HI-POINT................................ 4095...................... .40 S&W................... 14\5/8\''
KEL-TEC................................. SUB2000................... 9x19mm.................... 13\1/4\''
STEYR................................... MP40...................... 9x19mm.................... 12\1/2\''
STEN.................................... MK11...................... 9x19mm.................... 11\1/2\''
FB...................................... MSBS...................... .223 REM.................. 13\1/4\''
IWI..................................... CARMEL.................... .223 REM.................. 14\3/4\''
FN...................................... SCAR-16................... .223 REM.................. 14\1/4\''
FN...................................... SCAR PDW-P................ .223 REM.................. 14\1/2\''
FN...................................... FS2000.................... .223 REM.................. 14\3/4\''
CZ...................................... BREN 805.................. .223 REM.................. 13\1/2\''
REMINGTON............................... 700....................... .308 WIN.................. 13\1/8\''
HK...................................... HK93...................... .223 REM.................. 13\3/4\''
STEYR................................... AUG....................... .223 REM.................. 14\3/4\''
STEYR................................... AUG....................... 9x19mm.................... 15''
WINCHESTER.............................. 1894...................... .30 W.C.F................. 13''
GERMANY................................. STG44..................... 7.92 KURTZ................ 14''
RUGER................................... MINI-14................... .223 REM.................. 13\1/3\''
KEL-TEC................................. SU-16..................... .223 REM.................. 13\5/8\''
BERETTA................................. RX4 STORM................. .223 REM.................. 13\1/2\''
INLAND.................................. M2 CARBINE................ .30 CAL................... 13\1/8\''
US...................................... M2 CARBINE................ .30 CAL................... 14\5/8\''
BROWNING................................ BUCKMARK.................. .22LR..................... 15''
MAUSER.................................. C96....................... 7.63x25mm................. 16\1/4\''
DWM..................................... LUGER..................... 9x19mm.................... 17\3/4\''
DWM..................................... LUGER..................... 9x19mm.................... 16\1/2\''
MAUSER.................................. C96....................... .30 Mauser................ 16\1/8\''
MAUSER.................................. C96....................... 9x19mm.................... 16\3/8\''
GERMANY................................. STECHKIN.................. .380 ACP.................. 15\3/4\''
UNITED KINGDOM.......................... MK6....................... .455 WEB.................. 16\1/4\''
STAR.................................... 1911...................... .38 Super................. 12\5/8\''
BROWNING/FN............................. HI-POWER.................. 9x19mm.................... 16\3/8\''
BERETTA................................. 93R....................... 9x19mm.................... 16\1/2\''
CAA..................................... MCK CL.................... 9x19mm.................... 16''
CAA..................................... MCK GEN 2................. 9x19mm.................... 15\3/4\''
FIRE CONTROL UNIT....................... X-01...................... 9x19mm.................... 13\7/8\''
RECOVER TACTICAL........................ 20/20N.................... 9x19mm.................... 15''
FAB DEFENSE............................. KPOS G2................... 9x19mm.................... 15\3/4\''
ACCURATE PISTOL SYSTEMS................. GLOCK 17.................. 9x19mm.................... 17''
ENDO TACTICAL........................... GLOCK 17.................. 9x19mm.................... 19\1/2\''
TAC STOCK............................... GLOCK 17.................. 9x19mm.................... 17\3/4\''
CALICO.................................. M-100..................... .22LR..................... 18\1/4\''
UMAREX.................................. HK 416D................... .22LR..................... 14\5/8\''
ISSC.................................... MK22...................... .22LR..................... 14''
GSG..................................... GSG-522................... .22LR..................... 13\3/4\''
DAISY MFG............................... N/A....................... .22LR..................... 13\3/8\''
HENRY................................... LEVER ACTION.............. .22LR..................... 12\3/4\''
REMINGTON............................... MODEL 597................. .22LR..................... 14''
SPRINGFIELD............................. M6 SURVIVAL............... .22LR..................... 11''
ITHACA.................................. M6 SURVIVAL............... .22LR..................... 11\1/2\''
CHARTER ARMS............................ AR-7...................... .22LR..................... 15''
[[Page 6537]]
RUGER................................... 22-Oct.................... .22LR..................... 13\1/2\''
KSA..................................... CRICKET................... .22LR..................... 11\7/8\''
----------------------------------------------------------------------------------------------------------------
The Department disagrees with commenters who stated it is not
appropriate to use a rifle measurement when analyzing pistols. The
Department has determined that, to best implement the relevant
statutes, ATF should not simply assume that a firearm should be
classified in accordance with the manufacturer's stated intent. Rather,
based on the best reading of the relevant statutory provisions, ATF
will examine the firearm for characteristics (e.g., length of pull)
consistent with whether a firearm is designed, made, and intended to be
fired from the shoulder. The objective design features of the firearm
may support or undermine a manufacturer's stated intent regarding
whether the firearm is or is not designed, made, and intended to be
fired from the shoulder. Therefore, after considering whether the
firearm has surface area that allows for shouldering, it is reasonable
for the Department to consider length of pull consistent with similar
rifles as a design feature indicating that a firearm is designed to be
fired from the shoulder.
For similar reasons, the Department disagrees with the commenters
that suggested measuring length of pull for weapons with ``stabilizing
braces'' was an invalid concept because the weapons do not have
``stocks.'' Although some measures of length of pull may refer to a
``stock,'' the purported ``stabilizing brace'' on a firearm is often
similar to a shoulder stock in construction and intended purpose, and
the Department accordingly believes that length of pull can
appropriately be measured for such weapons. The mere fact that a
manufacturer may call a device a ``stabilizing brace'' does not prevent
measurement of a length of pull when the device is, in reality, similar
to a shoulder stock.
The Department acknowledges the suggestion of one commenter that
Worksheet 4999 should have used a two-tiered approach that combines the
length of pull and rear surface area, and, if this combination
indicates the firearm is suitable to be fired from the shoulder, then
to proceed to other characteristics. While the Department does not
adopt the commenter's exact suggestion, the Department has determined
that a two-tiered approach is a reasonable and clear method to evaluate
whether the overall configuration of a firearm equipped with a
``stabilizing brace'' is designed, made, and intended to be fired from
the shoulder. After consideration of the comments, the rule states 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, such
as length of pull, indicate that the firearm is designed, made, and
intended to be fired from the shoulder.
x. Attachment Method
Comments Received
One commenter questioned why ATF would assign any points to items
such as KAK-style and rifle-style buffer tubes and PDW-type guide rails
that ATF has previously ``approved'' for use on pistols. The commenter
had the same questions with respect to folding adapters and how ATF
determines what a ``modified shoulder stock'' is under the ``Attachment
Method'' category in Section III. Another commenter noted that the use
of ``folding adapters'' serve the same functional purpose for brace-
equipped pistols as they do for folding rifle stocks, i.e., the user
can fire the pistol without the device extended by folding the
stabilizing brace or stock out of the way. The commenter further stated
that, ``[j]ust as a rifle with its stock folded does not suddenly
become a non-rifle, a pistol with its brace folded does not suddenly
become a non-pistol.'' Similarly, commenters disagreed with ATF's
assignment of various ``attachment methods,'' i.e., ``extended'' tubes,
``folding adapter[s],'' and ``spacers,'' that were each assessed two
points, on the theory that each ``increases the `length of pull.'''
Commenters believed that the factors under ``Attachment Method'' would
create a double penalty for: (1) the attachment method that increases
the length of pull and (2) the resulting longer length of pull itself,
which would already be accounted for under ``Length of Pull.''
One commenter argued that the factor examining ``aim-point'' not
only is vague and has nothing to do with shouldering but is also
duplicative of the analysis conducted under the ``Peripheral
Accessories'' section. Another commenter asked for clarification on the
factor ``Attachment method creates an unusable aim-point (slant)''
under the ``Attachment Method'' category. The commenter stated that the
Department would need to evaluate a number of shooting positions to
determine whether the aim-point is unusable without firing from the
shoulder. For example, the commenter stated that when a firearm is
fired from either a bench rest or the prone position, the firearm is
not fired from the shoulder, yet the elevation of the firearm in
relation to the user's body may be quite similar to a shoulder-mounted
firearm. This, according to the commenter, would make aim-point
unusable for freehand shooting from a standing position, but very
usable from a bench rest or from the prone position.'' Another
commenter criticized the lack of explanation for how certain methods of
attachment would affect other criteria that ATF already identified as
indicative of an intent to fire a weapon from the shoulder. The
commenter asserted that attachment method has nothing to do with a
device's ability to be fired from the shoulder and that a final rule
should not consider attachment method.
Department Response
The Department agrees with commenters' concerns regarding the
assessment of duplicate points for ``attachment method'' and ``length
of pull.'' The Department does not adopt the point system from
Worksheet 4999. Rather, under this final rule, if a weapon equipped
with an accessory, component, or other rearward attachment (e.g., a
``stabilizing brace'') has surface area that allows it to be fired from
the shoulder, then the other objective design features and other
factors listed in this rule are to be considered in determining whether
the firearm is designed, made, and intended to be fired from the
shoulder.
One objective design feature ATF may consider is whether the
attachment is required for the cycle of operations of the weapon, which
could indicate the firearm is not designed and intended to be fired
from the shoulder. For example, an AR-type pistol with a standard 6- to
6\1/2\-inch buffer tube may not be designed, made, and intended to be
fired from the shoulder even if the buffer tube provides surface area
that allows the firearm to be shoulder fired.
[[Page 6538]]
On an AR-type pistol, the buffer tube encases a spring that drives the
bolt forward when the bolt is driven into the buffer tube by the gas
from the initial shot. The picture below displays the internal function
of an AR-15 type rifle. The AR-type pistol is a variant of the rifle
with the stock removed and has the same receiver and buffer tube
function of the rifle version.
BILLING CODE 4410-FY-P
[GRAPHIC] [TIFF OMITTED] TR31JA23.046
In contrast, if the buffer tube, receiver extension, or other
component is not required for the cycle of operations of the weapon,
ATF may conclude it serves no purpose but to extend the rear surface
area of the weapon toward the shooter to provide surface area for
shouldering and to increase the overall length of pull, which in turn
provides a shooter a better aim-point on the firearm and horizontal
stabilization to shoulder-fire the firearm. For example, a ``brace''
device or other rearward attachment on AK-type pistol serves only to
extend the surface of the firearm rearward. Similarly, the CZ Scorpion
EVO3 S1 (pictured below) does not incorporate a buffer tube or material
beyond the bottom of the pistol grip, unlike the AR-type rifle.
Instead, a folding ``brace'' is added to the firearm in addition to the
material required for the operation of the firearm.
---------------------------------------------------------------------------
\130\ Palmetto State Armory, Product Manuals-PA-15 Pistol,
https://palmettostatearmory.com/help-center/product-manuals/pa15-pistol.html#safety (last visited Dec. 12, 2022).
---------------------------------------------------------------------------
[[Page 6539]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.047
Another example is the HK SP5 firearm, which functions with no
material beyond the pistol grip of the firearm. But a ``stabilizing
brace'' can be attached to additional material such as PDW-type guard
rails, as demonstrated below. This attachment extends the rear surface
of the firearm, and the PDW-type guard is additional material that also
has no purpose in the cycle of operations on a HK SP5 firearm. The fact
that this excess material is not necessary to the cycle of operations
would be an objective design feature suggesting that the firearm with
the ``stabilizing brace'' is designed, made, and intended to be fired
from the shoulder.
---------------------------------------------------------------------------
\131\ CZ USA, CZ Scorpion Evo 3 S1 Pistol, https://cz-usa.com/product/cz-scorpion-evo-3-s1-pistol-2/ (last visited Dec. 12, 2022).
\132\ CZ USA, CZ Scorpion EVO 3 S1 Pistol w/Flash Can and
Folding Brace-Discontinued, https://cz-usa.com/product/cz-scorpion-evo-3-s1-pistol-w-flash-can-and-folding-brace/ (last visited Dec.
12, 2022)
---------------------------------------------------------------------------
[[Page 6540]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.048
The Department acknowledges that ATF previously ``approved'' KAK-
style and rifle-style buffer tubes and PDW-type guide rails for use on
pistols and that ATF specifically permitted these types of extensions
to attach a ``stabilizing brace'' device onto the rear of a
weapon.\134\ The Department also acknowledges but disagrees with
commenters that did not believe folding adapters should be considered
because the purpose of a folding adapter is to fold out of the way the
``brace'' or shoulder stock on a firearm. As discussed, the addition of
an accessory to the rear of the firearm can also add material that
provides surface area for shouldering and can extend the length of pull
to effectuate shoulder fire. For these reasons, the Department
disagrees with these commenters and maintains that these types of
rearward attachments, like the folding adapter pictured below, are
additional material that, when added to the end of a firearm, may
indicate that the firearm is designed, made, and intended to be fired
from the shoulder.
---------------------------------------------------------------------------
\133\ Heckler & Koch USA, SP5K-PDW-Heckler & Koch, https://hk-usa.com/product/pistols/ (last visited Dec. 12, 2022); SB Tactical,
HKPDW,TM https://www.sb-tactical.com/product/hkpdw/ (last
visited Dec. 12, 2022).
\134\ Letter from ATF #304296 (Dec. 22, 2015) (PDW rails);
Letter from ATF #306285 (Oct 31, 2017) (KAK tube).
---------------------------------------------------------------------------
[[Page 6541]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.049
BILLING CODE 4410-FY-C
Likewise, an extended AR-type pistol buffer tube, which is a longer
buffer tube than the standard buffer tubes required for the operation
of the firearm, or the inclusion of spacers that extend the length of
pull, are also examples of the addition of material to the rear of a
firearm that provides surface area for shouldering and extends the
length of pull to effectuate shoulder fire.
xi. Peripheral Accessories and ``Stabilizing Brace'' Modifications/
Configurations
Comments Received
Some commenters were troubled with the inclusion of ``accessories''
in the evaluation process because, in their opinion, ATF only has the
authority ``to regulate firearms and ammunition in interstate
commerce.'' Commenters stated that ATF appeared not to be concerned
about the impact the worksheet would have on AR-15 enthusiasts who
enjoy trying new or different components, i.e., sights, optics, or
telescoping arms to ensure the best fit. Specifically, commenters
stated that, because of such changes, ``their `score' on'' Worksheet
4999 would change with each new combination, thereby likely resulting
in a new register or destroy decision tree.''
The congressional Second Amendment Caucus disagreed with ATF's
statements from the NPRM. The commenter read the NPRM as indicating
that, simply by adding peripheral accessories such as a hand stop or
sights, a person may inadvertently ``void'' ATF's prior classification
of a weapon with an attached ``stabilizing brace'' as not being a
``rifle'' under the NFA. That person would then be in possession of an
unregistered short-barreled rifle. The commenter stated that it would
be ``unjustifiable'' for a firearm's classification to change ``simply
because a person has customized it with individualized accessories.''
(Emphasis omitted.)
Another commenter suggested that the worksheet should be revised to
say that no points would be awarded for a hand stop unless the length
of pull and rear surface area of the stabilizing brace are suitable for
firing from the shoulder, and, if so, then two points would be awarded
for the secondary grip, and, if not, the worksheet does not apply to
the secondary grip, but the firearm may be classified as an NFA ``any
other weapon.'' Under this proposal, no points should be assigned for
the ``no sights'' feature. The same commenter also stated that, if the
physical size and configuration of a stabilizing brace do not allow for
shouldering at all, then the presence of a hand stop is irrelevant and
does not indicate that the gun will be fired from the shoulder.
Another commenter wanted additional information on Worksheet 4999
because it was unclear if the only ``accessory'' that had to be removed
to make the initial determination regarding weight and length
prerequisites is an attached stabilizing brace or whether other
accessories (e.g., sights, fore-end, pistol grip, bipod, etc.) would
have to be removed as well.
Commenters did not understand how a ``sighting'' accessory could
transform a pistol with a ``brace'' into an NFA weapon and disagreed
with Worksheet 4999 for including a ``sighting'' factor. Many
commenters disagreed with the notion that any form of sight or even the
absence of sights might make a pistol a
[[Page 6542]]
rifle or that pistols with certain sights or other accessories could
become short-barreled rifles. Many commenters said optics do not change
the function of a brace and should not be considered in the evaluation
of a pistol or rifle. Commenters stated that sights can be seen very
easily when firing with one hand and that their use should be assigned
zero points.
Another commenter put it a slightly different way. The commenter
found it ``unclear how the presence or absence of sights would be
determinate of whether the firearm is a pistol or short-barreled
rifle,'' and the commenter asserted that ``attributing the same points
to a firearm equipped with a set of rifle-type sights as the same
firearm with no sight installed makes little sense.'' The commenter
continued, stating it is ``nonsensical that lacking sights could make a
firearm a short-barreled rifle under the Rule.'' ``End users are free
to choose what optics or sights to put on their firearm if none are
included from the factory, and many of those optic and sight choices
would result in accrual of zero points.'' One commenter questioned why
the presence of no sights (which would have accrued one point on the
worksheet) would indicate a firearm was made to be shouldered.
Another commenter stated any person can shoot a firearm one handed
with a sight or scope, so this factor, according to the commenter,
would have automatically given every firearm with a sight or scope 4
points, thereby making every firearm a short-barreled rifle by ATF's
proposed factoring criteria. One organization raised a question about
ATF's purported prohibition of various types of sights, which, the
commenter claimed, ATF erroneously asserted ``must be fired from the
shoulder in order to use the sight.''
Another commenter, who identified as a National Guard Instructor,
suggested that ATF include a list of acceptable style of optics for the
factor ``Presence of a Sight/Scope with Eye Relief Incompatible with
one-handed fire,'' as listed on Worksheet 4999. Doing so, according to
the commenter, would help people know what standards ATF proposed to
use when using the worksheet to determine if a firearm is classified as
a rifle or short-barreled rifle subject to the NFA.
A few commenters wrote about the ``bipod'' factor on the proposed
Worksheet. One commenter argued that it was nonsensical to accrue
points for presence of a bipod because alternate shooting positions
should be encouraged for safety purposes. The commenter stated that
attachment of a bipod allows the shooter to choose to rest the forward
portion of the firearm on a solid surface for stability. If a suitable
solid surface is not available, the user should have the ability to use
an equipped stabilizing brace for stability. Another commenter argued
that the ``[w]orksheet should not award points for the presence of a
bipod or monopod unless length of pull and rear surface area are both
suitable for firing from the shoulder. And then, only one point should
be assigned.'' (Emphasis omitted.)
Finally, at least one commenter argued that the factors under the
section of the worksheet titled ``Stabilizing Brace'' Modifications/
Configurations were arbitrary. For example, the commenter stated that
ATF did not define when a strap is ``too short'' to function for the
``cuff-type'' or ``fin-type'' design and that this feature was
duplicative of the ``stabilizing support factor'' in Section II of the
proposed worksheet. The commenter argued generally that other factors
in this part conferred too much discretion on ATF and that the factors
were arbitrary and therefore the entire part examining ``Stabilizing
Brace'' Modifications/Configurations should be removed.
Department Response
The Department agrees that ATF's authority under the GCA and NFA is
to regulate firearms and ammunition; however, the Department disagrees
that ATF is prohibited from considering components or peripheral
accessories attached to a firearm in the evaluation process of a
firearm. ATF's FATD considers the configuration of the firearm, which
includes whether certain accessories added by either the manufacturer
or the individual affect the classification of a firearm. In the NPRM,
the Department included on the Worksheet 4999 accessories that may
impact whether a firearm is designed, made, and intended to be fired
from the shoulder. After considering the comments, the Department has
determined that the presence of sights or scopes with eye relief that
require shouldering of the firearm to be used is an objective design
feature indicating a firearm is designed, made, and intended to be
fired from the shoulder. As explained below, the Department agrees with
commenters and does not consider hand stops, secondary grips, or bipod
or monopods to be objective design features indicating that a firearm
is designed and intended to be fired from the shoulder.
The Department disagrees that it has not considered the interests
of AR-15 enthusiasts by including accessories in the analysis of
whether a firearm is designed, made, and intended to be fired from the
shoulder. The NPRM and proposed Worksheet 4999 would not have prevented
AR-15 enthusiasts from altering their firearms, and individuals may
continue to install accessories on a firearm under this final rule.
However, if the firearm falls within the purview of the NFA (i.e.,
designed, made, and intended to be fired from the shoulder with a
barrel less than 16 inches) then the firearm must be registered in the
NFRTR. The Department agrees that an unintended consequence of the
proposed worksheet and the point system was that the addition or
removal of a single peripheral accessory could redesign the firearm to
be fired from the shoulder or remove the firearm from the purview of
the NFA. Therefore, the Department does not adopt the proposed
Worksheet 4999 and, as discussed, several of the peripheral accessories
listed in the worksheet are not considered objective design features in
the final rule.
The Department agrees that two factors--the presence of a hand stop
and secondary grip--are not relevant objective design features because
they only are relevant if firearm has a length of pull consistent with
rifles and rear surface area indicating the firearm is suitable to be
fired from the shoulder. In other words, the objective design features
of length of pull and rear surface area already take into account these
types of peripheral accessories, including secondary grips.
Additionally, the secondary grip may be a factor indicating that a
firearm is not a pistol (i.e., a firearm designed, made, and intended
to be fired with one hand), but it is not a factor indicating that the
firearm is designed, made, and intended to be fired from the shoulder.
For the same reasons that secondary grip and hand stop are not
included, the Department also agrees that the presence of a bipod or
monopod is not an objective design feature of a firearm designed and
intended to be fired from the shoulder; this feature can be a
characteristic of both a rifle and a pistol and itself is not an
objective design feature of a rifle. Therefore, a bipod or monopod is
not included as an objective design feature in the rule.
Similarly, the Department agrees that optics on a firearm should
not transform a firearm into a rifle by themselves, and the Worksheet
4999 was not intended to make optics a transformative characteristic.
However, the Department disagrees with any notion that the optics on a
firearm are irrelevant to the question of whether a firearm is a rifle
within the meaning of the relevant
[[Page 6543]]
statutes. The presence of sights or a scope on a firearm that requires
the firearm to be shouldered in order for the sights or scope to be
used as designed indicates that the firearm is designed, made, and
intended to be fired from the shoulder. In applying the statutory
definition, ATF intends to examine the sights or scope on a submitted
firearm sample as compared to those sights or scopes featured on a
rifle to determine whether the sights or scope on the firearm being
evaluated must be shouldered to use the sights or scope as designed.
The alignment of sights and optics is an important feature of a
weapon designed, made, and intended to be fired from the shoulder. The
industry recognizes the importance of the sights or aiming device in
shouldering a firearm. SAAMI defines ``shoulder'' as, in relevant part,
the ``[a]ct of placing a shotgun or rifle to a shooter's shoulder, in
order to properly align the sights and fire at a target.'' \135\ The
American Rifleman states that ``[a] rifle stock is a device that
provides an interface between the shooter and the rifle. Its foremost
purpose is to allow the shooter a repeatable point of contact in
relation to the rifle's aiming device.'' \136\ The final rule also
refers to the ``eye relief'' of any attached sights or scopes. ``Eye
relief'' is the distance between the eye and the scope or sight that is
required to provide the best image of the object being targeted.\137\
If sights or a scope requires the firearm to be shouldered in order for
the shooter to use the sights or scope to view the target, then the
firearm is more likely to be designed, made, and intended to be fired
from the shoulder because firing from other positions would impair the
use of the sight or scope.
---------------------------------------------------------------------------
\135\ SAAMI, Glossary, Sporting Arms and Ammunition
Manufacturers' Institute, Inc., https://saami.org/glossary/shoulder/
(last visited Dec. 13, 2022).
\136\ Dave Campbell, Back to the Basics: Rifle Stock Components
& Designs, The American Rifleman (Feb. 15, 2017), https://www.americanrifleman.org/content/back-to-basics-rifle-stock-components-designs/.
\137\ R.A. Steindler, New Firearms Dictionary 112 (1985)
(defining ``eye relief'' as the ``distance required between the eye
and ocular lens of a telescopic sight that gives the user the best
image of the object viewed'').
---------------------------------------------------------------------------
Therefore, some of the sights listed on Worksheet 4999 are relevant
to the question of whether a particular configuration is a rifle within
the meaning of the relevant statutes. For instance, back-up or flip-up
sights that can only be effectively used when the firearm is shouldered
are an indicator that a firearm is designed, made, and intended to be
fired from the shoulder. Similarly, the presence of a reflex sight with
flip-to the side magnifier that has limited eye relief (i.e., the sight
is unusable unless aimed and fired from the shoulder) is a design
incorporated on firearms designed, made, and intended to be fired from
the shoulder.
[GRAPHIC] [TIFF OMITTED] TR31JA23.050
The Department acknowledges that Worksheet 4999 incorrectly
considered and assigned points for the lack of sights to determine if a
firearm is a rifle designed, made, and intended to be fired from the
shoulder. As discussed, the Department notes that the correct inquiry
for purposes of determining whether a firearm equipped with a ``brace''
is designed, made, and intended to be fired from the shoulder is to
consider whether the sight or scope has an eye relief that requires
shouldering in order to be used as designed. Therefore, the Department
believes it is not necessary to provide a list of acceptable style
optics that are compatible with one-handed fire, as requested in the
comments.
Lastly, the Department agrees with the commenter that it should not
examine ``stabilizing brace'' modifications or configurations, and this
characteristic should not be considered in the final rule. As discussed
above, ATF evaluates and classifies firearms based upon the firearm's
objective design features and other factors in light of the statutory
and regulatory definitions. This rule clarifies 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--such as the presence of sights
or a scope with eye relief that require the weapon to be fired from the
shoulder in order to be used as designed--also indicate the weapon is
designed, made, and intended to be fired from the shoulder
[[Page 6544]]
c. Regulating Intent
Comments Received
Commenters were concerned that ATF was presuming the intentions of
both users and manufacturers of ``stabilizing braces.'' One commenter
said the proposed definition would define the intent of the
manufacturer or designer of the firearm based solely upon objective
features. The commenter further elaborated, stating, ATF contends that
the intent of manufacturers or makers may not be as stated, but
``[c]onversely, a manufacturer or designer may have all genuine intents
and purposes of having a firearm not be shot from the shoulder, but
have their firearm classified as a `rifle' on the basis that it met the
point requisite! Both of these results ignore the Congressional intent
of the meaning of the term `rifle'.'' Other commenters said it was
unclear what additional evidence ATF would consider in determining if a
manufacturer ``expressly intended to design the weapon to be fired from
the shoulder.'' Finally, other commenters contended that, although ATF
said that the manufacturer's stated intent should play a role, the
worksheet did not take such intent into account because it focused only
on design features.
Department Response
The Department disagrees that the definition, as proposed and
finalized, defines the intent of a manufacturer or designer based
solely upon objective features. As stated, ATF considers the
manufacturer's or designer's stated intent, but the Department has
determined that the relevant statutes would not be properly implemented
by simply assuming that the firearm should be classified entirely in
accordance with that stated intent; doing so would permit circumvention
of the NFA solely based on the manufacturer's or maker's words. Such an
absurd result would be inconsistent with the best understanding of the
relevant statutory definitions, which encompass weapons designed, made,
and intended to be fired from the shoulder--not merely weapons that the
manufacturer expressly states are to be fired from the shoulder. Put
another way, Federal regulation of only those ``rifles'' the
manufacturer wanted to market as such would leave other items
completely unregulated regardless of their objective design features,
and regardless of whether those other items pose the exact same dangers
as the weapons marketed as ``rifles.'' Hence, to properly apply the
relevant statutory definition, the Department has determined that the
classification of a firearm should include an evaluation of whether its
objective design features indicate it is designed, made, and intended
to be fired from the shoulder. ATF, as stated in this rule, may
consider a manufacturer's stated intent or marketing materials, as well
as evidence of likely use in the general community, but ATF would take
these considerations into account in conjunction with the objective
design features of the weapon.
To assess the manufacturer's or maker's intent when following the
process described in this final rule, ATF's FATD considers both: (1)
the marketing of the attachment (e.g., indirect marketing through
persons that manufacture or sell ``stabilizing braces'' but not
firearms) and the direct marketing from the firearm manufacturer
regarding the firearm to which the attachment or ``brace'' is
assembled, and (2) information demonstrating the likely use of the
weapon by the general community, including both the manufacturer's
stated intent when submitting its item for classification and use by
members of the firearms industry, firearms writers, and in the general
community. Cf. Posters `N' Things v. United States, 511 U.S. 513, 521-
22 (1994) (explaining that 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).
FATD in the past has found that manufacturers or makers often
assert that a device is a ``stabilizing brace'' or that a firearm is a
``pistol'' when submitting a firearm for classification, but then
advertise these products later as devices that permit customers to fire
their ``pistols'' from the shoulder, e.g., to make a short-barreled
rifle without complying with the requirements of the NFA (examples
provided below). Such production and advertising are far from, and not
consistent with, the incidental use of a ``brace'' as a shouldering
device. Instead, the manufacturer's own marketing materials directly
contradicted the purpose they stated to ATF when submitting the firearm
and indicated that the firearm, in reality, is intended to be fired
from the shoulder. Thus, in considering intent under this final rule,
ATF will consider both the stated intent upon submission to ATF and the
marketing materials associated with the ``stabilizing brace.''
Additionally, FATD under the final rule may also examine information
demonstrating the likely use of the weapon in the general community,
such as the proposed use by the manufacturer or use by members of the
firearms industry, firearms writers, and in the general community.
These sources provide insight into the ways that manufacturers market
their products and whether the firearm equipped with a ``stabilizing
brace'' as configured is designed, made, and intended to be shoulder
fired.
By considering direct or indirect marketing or promotional
materials available through videos, advertisements, or other sources,
ATF can verify the manufacturer's purported intent regarding the use
the weapon. Indirect marketing materials can include statements from
accessories manufacturers for the accessories that a firearms
manufacturer attaches or incorporates into its firearm, such as a
``brace'' manufacturer that advertises that a ``stabilizing brace'' is
a method to circumvent the NFA. Such an advertisement would not be
published by the firearms manufacturer itself but might still be
referenced by the manufacturer of the ``stabilizing brace,'' and it
would still be considered relevant in the assessment of whether a
weapon is a rifle. Additionally, ATF can look to other available
information, including the manufacturer's own statements, to assess the
general community's likely use of the weapon to resolve the intended
use of the device.
Below is an example of how ATF would consider these materials and
information for an AR-type firearm with an SBA3 ``stabilizing brace''
device. In evaluating a firearm equipped with an SBA3 ``brace'' device,
FATD will consider the firearm manufacturer's or maker's direct and
indirect marketing and promotional materials, which may include the
direct or indirect materials of the accessory (or ``brace'') maker
whose product is used by the manufacturer or maker of the firearm. Even
though, as earlier discussed, the maker of the SBA3 stated to ATF that
an SBA3 ``stabilizing brace'' was ``intended to assist those with
limited strength or mobility while shooting from the one-handed pistol
precision stance or one-handed supported stance,'' \138\ the maker of
the SBA3 also included material on its website that stated
``stabilizing braces'' are a way to avoid NFA controls and to ``Stiff
Arm the Establishment.'' \139\ The Department
[[Page 6545]]
believes it would be appropriate for ATF to consider this indirect
marketing material from the brace manufacturer, along with the weapon's
objective design features, when making a classification.
---------------------------------------------------------------------------
\138\ Letter for John Spencer, Chief, Firearms Technology
Branch, ATF, from Alex Bosco, NST Global (Nov. 8, 2012).
\139\ See, e.g., SB Tactical (June 3, 2017), https://web.archive.org/web/20170603230920/https://www.sb-tactical.com/; SB
Tactical (May 2, 2019), https://web.archive.org/web/20190502221627/https://www.sb-tactical.com/.
---------------------------------------------------------------------------
BILLING CODE 4410-FY-P
[GRAPHIC] [TIFF OMITTED] TR31JA23.051
In considering information demonstrating the likely use of the
firearm equipped with an SBA3 ``stabilizing brace'' in the general
community, ATF would also consider information such as the firearms
magazines that similarly exhibited the use of this ``stabilizing
brace'' as a shoulder stock.\140\
---------------------------------------------------------------------------
\140\ James Tarr, POF Revolution Pistol Review, Guns and Ammo
(Apr. 1, 2019), https://www.gunsandammo.com/editorial/pof-revolution-pistol-review/359137; Tom Beckstrand, BCM Recce- 11 MCMR
Pistol Review, Guns and Ammo (Oct. 28, 2019), https://www.gunsandammo.com/editorial/bcm-recce-11-mcmr-pistol-review/369026.
---------------------------------------------------------------------------
[[Page 6546]]
In the following examples, with images, the firearms were being sold as
pistols while it was evident that they were designed, made, and
intended to be rifles.
[GRAPHIC] [TIFF OMITTED] TR31JA23.052
Additionally, ATF would review other advertisements displaying the
SBA3 accessory as a shoulder stock. These include:
---------------------------------------------------------------------------
\141\ King of Compact Hammers, Guns and Ammo (June 2019).
\142\ Ballistic Staff, RipBrace: CMMG Teams with SB Tactical for
Retractable AR Pistol Brace, Ballistic Magazine (Nov. 8, 2018),
https://www.ballisticmag.com/cmmg-ripbrace-retractable-brace/.
---------------------------------------------------------------------------
[[Page 6547]]
[GRAPHIC] [TIFF OMITTED] TR31JA23.053
[GRAPHIC] [TIFF OMITTED] TR31JA23.054
BILLING CODE 4410-FY-C
The manufacturers' advertisements of the SBA3 attached to these
types of firearms and their use by the industry and public as a rifle
designed, made,
[[Page 6548]]
and intended to be fired from the shoulder demonstrate the actual
intended use of the item. Thus, in considering a manufacturer's
assertion to ATF that the firearm is designed and intended to be fired
with one hand with the assistance of a ``stabilizing brace,'' FATD
would be able to look to the manufacturer's direct and indirect
materials, as well as information demonstrating likely use in the
general community, to assist in determining whether the firearm is or
is not configured to be fired from the shoulder. As evidenced by online
videos,\143\ marketing materials from manufacturers of various models
of ``stabilizing braces,'' \144\ and even comments on the NPRM,
firearms with attached ``stabilizing braces'' are being used to evade
regulation under the NFA. Thus, the final rule adopts the best
interpretation of the relevant statutes by examining a firearm's
objective design features, along with direct and indirect marketing
materials and other information to determine whether a firearm is
designed, made, and intended to be fired from the shoulder.
---------------------------------------------------------------------------
\143\ See supra notes 96-98.
\144\ See supra notes 90-94.
---------------------------------------------------------------------------
4. Constitutional Concerns
a. Violates the Second Amendment
Comments Received
Commenters opposed to the NPRM broadly opined that ATF should not
be allowed to violate their Second Amendment rights and that this rule
is a ``slap in the face'' to millions of Americans who own and use
pistol braces. Other commenters argued the rule would ban pistols that
are protected by the Second Amendment. Commenters argued that the rule
``attacks'' the Second Amendment. Thousands of commenters cited
District of Columbia v. Heller, 554 U.S. 570 (2008), and argued that
the rule unlawfully infringes on the Second Amendment rights of
millions of citizens to keep and bear arms in common use. Other
commenters stated the term ``infringed'' in the Second Amendment means
``to limit or undermine'' and ``actively break the terms of a law or
agreement,'' and that in return for the colonies giving power to the
creation of a Federal government, the government agreed not to infringe
on the rights of people to keep and bear arms. Commenters argued that
with this rule, ATF is infringing on the rights of people to keep and
bear arms under the Second Amendment. Another commenter stated that the
right to install a stabilizing brace to assure safe and accurate use
and operation of a weapon, particularly for defense of self and
property, is a ``core value'' protected by the Second Amendment.
Department Response
The Department disagrees with commenters that this regulation
violates the Second Amendment. Heller and subsequent judicial decisions
support the Department's view that weapons regulated by the NFA, such
as short-barreled rifles, fall outside the scope of the Second
Amendment. The Supreme Court in Heller, 554 U.S. at 570, held the
Second Amendment protects an individual right to bear arms for
traditional, lawful purposes such as self-defense. At the same time,
the Court recognized that the rights established under the Second
Amendment are not absolute or unlimited. Id. at 595. Heller
specifically recognized an ``important limitation on the right to keep
and carry arms,'' i.e., that the right is limited to ``the sorts of
weapons . . . `in common use at the time.''' Id. at 627. The Court
stated that this limitation is supported by ``the historical tradition
of prohibiting the carrying of `dangerous and unusual weapons.''' Id.
The Court rejected the ``startling'' position that ``the National
Firearms Act's restrictions on machineguns . . . might be
unconstitutional, machineguns being useful in warfare in 1939.'' Id. at
624. Heller thus made clear that machineguns and short-barreled
shotguns are ``weapons not typically possessed by law-abiding citizens
for lawful purposes,'' and thus fall outside the scope of the Second
Amendment as historically understood. Id. at 625; see also id. at 627
(accepting that M-16 rifles are dangerous and unusual weapons that may
be banned).
Indeed, after Heller, lower courts similarly held that short-
barreled shotguns and short-barreled rifles are dangerous and unusual
weapons that fall outside the scope of the Second Amendment because of
the danger presented. United States v. Cox, 906 F.3d 1170, 1186 (10th
Cir. 2018) (``we take our cue from Heller and conclude that the
possession of short-barreled rifles falls outside the Second
Amendment's guarantee''); United States v. Gilbert, 286 Fed. App'x 383,
386 (9th Cir. 2008) (approving jury instructions that an individual
does not have a Second Amendment right to possess a short-barreled
rifle, and observing that, ``[u]nder Heller, individuals still do not
have the right to possess machineguns or short-barreled rifles'');
Marzzarella, 614 F.3d at 90-95 (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'' and that the Second
Amendment does not provide protection for all types of weapons);
Gonzalez, 2011 WL 5288727, at *5 (``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)). Thus, Heller and subsequent judicial
decisions support the Department's view that the weapons regulated by
the NFA, such as short-barreled rifles, were not historically protected
by the Second Amendment and thus fall outside the scope of the Second
Amendment. Nothing in the Supreme Court's recent decision in New York
State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022), changes
this analysis.\145\ See id at 2162 (Kavanaugh, J. concurring)
(reiterating Heller's finding that ``dangerous and unusual weapons''
are outside of the Second Amendment's protections).
---------------------------------------------------------------------------
\145\ The Supreme Court's decision in Bruen abrogated several
circuit court decisions applying a ```two-step' framework for
analyzing Second Amendment challenges.'' Id. at 2125. At the first
step, courts asked whether the ``challenged law regulates activity
falling outside the scope of the [Second Amendment] right as
originally understood.'' Id. at 2126 (quotation marks omitted). If
so, then the law did not violate the Second Amendment. But if the
law did regulate activity within the amendment's scope, then courts
applied a means-end test similar to the strict or intermediate
scrutiny used to evaluate laws burdening First Amendment rights. Id.
at 2126-27. The Court in Bruen largely approved of the first step,
which ``is broadly consistent with Heller,'' id. at 2127, but
specifically disapproved of the second step, see id. Thus, although
Bruen abrogates previous decisions applying the means-end test, the
Department does not believe the case casts doubt on courts' prior
conclusions that, based on historical tradition, the Second
Amendment does not extend to dangerous and unusual weapons. See,
e.g., Marzzarella, 614 F.3d at 94 (``the Supreme Court has made
clear the Second Amendment does not protect . . . types of weapons''
such as ``machine guns or short-barreled shotguns--or any other
dangerous and unusual weapon'').
---------------------------------------------------------------------------
Further, the Department also notes that neither the rule nor the
NFA bans the possession of the relevant firearms. In regulating short-
barreled rifles, Congress only requires the registration of the
firearms in the NFRTR and the payment of a making or transfer tax,
neither of which prohibits a person's ability to possess these weapons.
This rule does no more than clarify the Department's understanding of
the best meaning of the relevant statutory provisions.
[[Page 6549]]
b. Violates the Fourth Amendment
Comments Received
Numerous commenters stated that gun-owning Americans will see this
rule as a step towards gun confiscation. One commenter stated that ATF
has allowed the legal production and sale of these pistols with
``stabilizing braces'' for years and, as such, their abrupt removal
from the legal use violates the Fourth Amendment.
Department Response
The Department disagrees that this rule violates the Fourth
Amendment. The commenters appear to misunderstand the scope and intent
of the rule and it is unclear how a ``search'' or ``seizure'' could
result from this rule. The rule acknowledges that firearms with an
attached ``stabilizing brace'' that meet the definition of ``firearm''
as defined under the NFA are subject to the registration, transfer, and
taxes imposed by the NFA and to additional requirements under the GCA.
The Department is not aware of any precedent supporting the view that
determinations that certain weapons fall within the purview of the NFA
violate the Fourth Amendment. A seizure in ``[v]iolation of the Fourth
Amendment requires an intentional acquisition of physical control.''
Brower v. County of Invo, 489 U.S. 593, 596 (1989). This rule does not
violate the Fourth Amendment, as it makes clear that it does not
require the Government to seize or confiscate ``stabilizing braces'' or
firearms with an installed ``stabilizing brace.'' First, the Department
reiterates that firearms with an attached ``stabilizing brace'' that
fall outside the purview of the NFA may continue to be possessed by
individuals. Second, the public may continue to possess, transfer, or
sell ``stabilizing brace'' devices. Lastly, if a firearm with an
attached ``stabilizing brace'' is a short-barreled rifle under the NFA,
an owner of any such firearm may comply with the options set forth in
the rule to lawfully possess the firearm. See section V.B of this
preamble.
c. Unconstitutional Taking Under the Fifth Amendment
Comments Received
Commenters believed that ATF should not take action against
citizens who have already or in the future will purchase ``stabilizing
braces.'' Several commenters stated that citizens have spent millions
of dollars in taxes and converting firearms and will now be required to
destroy or surrender their personal property without compensation.
Commenter believed this rule will unjustly deprive owners of their
property without compensation, as they claimed they would be forced to
dispose of the ``brace''; they asked if ATF is planning to compensate
individuals for every ``stabilizing brace'' that must be removed.
Similarly, some commenters contended that the rule needs to be amended
to reimburse owners for their purchases, as they were made in good
faith.
Another commenter stated that the proposed rule would be like
``forced labor, the taking of property without just compensation or due
process, and a little extortion.'' At least one commenter argued that
each of ATF's suggested remedies provided to avoid committing felonies
by retaining previously authorized ``brace'' devices creates
significant tension with the constitutional protections provided by the
Due Process Clauses of the Fifth and Fourteenth Amendments, and that
each of the alternatives the government provides ``qualify as a
Government taking under the [Fifth] Amendment.'' In particular, the
commenter said that ``the Government commits a regulatory taking by
taking uses of the property that once had greater utility.''
Department Response
The Department disagrees that this rule constitutes a taking under
the Fifth Amendment, which prohibits the Government from taking
``private property . . . for public use, without just compensation.''
U.S. Const. amend. V. As an initial matter, this rule itself cannot
violate the Takings Clause because the owners of weapons affected by
the rule do not have a protectable property interest in the unregulated
possession of weapons covered by the NFA. ``[T]o have a cause of action
for a Fifth Amendment taking, the plaintiff must point to a protectable
property interest that is asserted to be the subject of the taking.''
Palmyra Pacific Seafoods, LLC v. United States, 561 F.3d 1361, 1364
(Fed. Cir. 2009). However, the ``government does not take a property
interest when it merely asserts a `pre-existing limitation upon the
[property] owner's title.' '' Cedar Point Nursery v. Hassid, 141 S. Ct.
2063, 2079 (2021) (quoting Lucas v. S.C. Coastal Council, 505 U.S.
1003, 1028-29 (1992)). Or, as the Federal Circuit recently explained in
a similar context, where there is a ``preexisting federal statutory
prohibition on possession or transfer of'' an item, and where that
prohibition is ``subject to a valid implementation by the Attorney
General,'' individuals ``lack[ ] a property right in what they allege
was taken.'' McCutchen v. United States, 14 F.4th 1355, 1365 (Fed. Cir.
2021).
Here, the NFA provides preexisting Federal statutory requirements
regarding the transfer and making of certain kinds of rifles; and this
final rule sets forth the Attorney General's interpretation of those
statutory requirements. The rule makes clear that weapons with an
attached ``stabilizing brace'' that, based on their objective design
features and other evidence, are designed, made, and intended to be
fired from the shoulder and have a barrel of less than 16 inches or an
overall length of less than 26 inches are short-barreled rifles under
the NFA. Because the rule merely clarifies when a weapon meets the
NFA's longstanding definition, owners would not be able to establish a
cognizable property interest sufficient for takings purposes. See id.
at 1364-65 (holding that possessors of bump stocks failed to establish
a cognizable property interest in continued possession in light of
limitations from preexisting Federal firearm statutes that inhered in
the title to their property).
In addition, the NFA's regulations on firearms--and enforcement
actions taken under that statutory authority--do not constitute Fifth
Amendment takings because the Takings Clause does not apply to public
safety regulations such as the NFA. As the Supreme Court has
articulated, ``[a] prohibition simply upon the use of property for
purposes that are declared, by valid legislation, to be injurious to
the health, morals, or safety of the community, cannot, in any just
sense, be deemed a taking or an appropriation of property for the
public benefit.'' Mugler v. Kansas, 123 U.S. 623, 668- 69 (1887). The
Federal Circuit also has recognized that, under Supreme Court
precedent, there are certain exercises ``of the police power that
ha[ve] repeatedly been treated as legitimate even in the absence of
compensation to the owners of the . . . property.'' Acadia Tech., Inc.
v. United States, 458 F.3d 1327, 1332-33 (Fed. Cir. 2006). A
restriction on ``contraband or noxious goods'' and other dangerous
articles imposed by the government to protect public welfare ``has not
been regarded as a taking for public use for which compensation must be
paid.'' Id. at 1332.
Applying these principles, courts have rejected arguments that
restrictions on the possession of dangerous firearms, like NFA
firearms, are takings requiring just compensation. In Akins v. United
States, 82 Fed. Cl. 619 (2008), the Court of Federal Claims rejected
takings claims after ATF reconsidered its prior classification
decisions regarding the Akins Accelerator. In 2002 and 2004, ATF
provided a letter to the
[[Page 6550]]
manufacturer of the Akins Accelerator that stated the device is not a
machinegun as defined by the NFA. Id. at 621. In 2006, ATF tested the
Akins Accelerator for another individual and determined the device to
be a machinegun for purposes of the NFA and 18 U.S.C. 922(o). Id.
Generally, section 922(o) prohibits the possession of machineguns
manufactured after May 19, 1986, with limited exceptions. Because it
constituted a machinegun under the NFA, an individual could not possess
or transfer the Akins Accelerator, and the plaintiff alleged a
regulatory and physical taking in violation of due process. Id. The
court explained that ``[p]roperty seized and retained pursuant to the
police power is not taken for a `public use' in the context of the
Takings Clause.'' Id. at 622 (quoting AmeriSource Corp. v. United
States, 525 F.3d 1149, 1153 (Fed. Cir. 2008)). In fact, courts have
upheld the authority of the government to seize property through the
lawful exercise of its authority, without compensation, including bump
stocks. See Maryland Shall Issue v. Hogan, 353 F. Supp. 3d 400, 408-17
(D. Md. 2018) (rejecting takings claim arising from State ban on bump
stocks), aff'd, 963 F.3d 356 (4th Cir. 2020); see also Bennis v.
Michigan, 516 U.S. 442, 452 (1996) (``The government may not be
required to compensate an owner for property which it has already
lawfully acquired under the exercise of governmental authority other
than the power of eminent domain.'').\146\
---------------------------------------------------------------------------
\146\ The court in McCutchen suggested there may be limits on
the scope of the police power, thus leaving open the possibility
that, in a future case, an exercise of that power might constitute a
taking. See McCutchen, 14 F.4th at 1363-64. Regardless of the merit
of this proposition, McCutchen still indicates that the final rule
does not constitute a taking because, as explained earlier,
individuals do not have a cognizable property interest in
unregulated ownership of NFA firearms.
---------------------------------------------------------------------------
Even under a takings analysis, the NFA's regulation of firearms
would not constitute a physical taking, see Horne v. Department of
Agriculture, 576 U.S. 350, 361 (2015), or a per se regulatory taking,
see Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1017 (1992). The
statute does not compel individuals to abandon, surrender, or destroy
their ``stabilizing brace'' devices or firearms with ``stabilizing
braces'' attached.\147\ An individual may register the firearm in
accordance with the provisions of the NFA or remove any offending
characteristics to remove the firearm from the purview of the NFA
(e.g., the removal and replacement of a barrel of less than 16 inches
with a longer barrel). See section V.B of this preamble. Nor does the
rule preclude all uses of the ``stabilizing brace'' or firearms with
``stabilizing braces'' attached. See Lucas, 505 U.S. at 1017-18
(applying the per se rule where all use of property is prohibited).
``Stabilizing braces'' may continue to be affixed on a short-barreled
rifle so long as the firearm is registered, transferred, and taxed in
accordance with the NFA. In fact, there are just over 641,000 short-
barreled rifles registered in the NFRTR.\148\
---------------------------------------------------------------------------
\147\ See Yee v. City of Escondido, Cal., 503 U.S. 519, 527
(1992) (``[T]he Takings Clause requires compensation if the
government authorizes a compelled physical invasion of property.'');
L.L. Nelson Enterprises, Inc. v. Cnty. of St. Louis, Mo., 673 F.3d
799, 806 (8th Cir. 2012) (``When a person voluntarily surrenders
liberty or property, the State has not deprived the person of a
constitutionally-protected interest.''); Hinesburg Sand & Gravel Co.
v. Chittenden Solid Waste Dist., 959 F. Supp. 652, 657 (D. Vt. 1997)
(``A fundamental requirement for any taking is that the challenged
governmental action create legal compulsion.'').
\148\ Source: National Firearms Act Division (as of November 2,
2022).
---------------------------------------------------------------------------
Accordingly, if a court conducted a takings analysis, the rule
would be analyzed and upheld under the multi-factor test for regulatory
takings claims identified by the Supreme Court in Penn Central
Transportation Co. v. City of New York, 438 U.S. 104, 124 (1978). A
court applying that analysis would consider: (1) the economic impact of
the regulation on the claimant, (2) its interference with investment-
based expectations, and (3) the character of the governmental action.
Id. at 124.
First, the economic impact of the rule on affected individuals will
be minimal. As just explained, the rule does not require individuals to
abandon, surrender, or destroy their firearms with attached
``stabilizing braces''; at most, the final rule will require compliance
with certain tax and registration requirements, but the Department has
ameliorated the financial impact of the NFA's taxes by forbearing from
the collection of past making taxes from individuals and FFLs.
Second, an individual's ``reasonable investment-backed expectations
are greatly reduced in a highly regulated field.'' Branch v. United
States, 69 F.3d 1571, 1581 (Fed. Cir. 1995); see also McCutchen v.
United States, 145 Fed. Cl. 42, 56 (2019), aff'd on other grounds, 14
F.4th 1355 (Fed. Cir. 2021) (``The firearms industry is the
quintessential `highly regulated field,' '' and ``[a]nyone who enters
the firearms industry has to be aware that shifting public sentiments,
evolving research concerning firearms availability and public safety,
and events like [a] . . . mass shooting may lead to rule changes that
render unlawful what was once permissible.''). And the Supreme Court
has made clear that an owner of personal property ``ought to be aware
of the possibility that new regulation might even render his property
economically worthless.'' See Lucas, 505 U.S. at 1027-28. Here, the
weapons potentially affected by this rule are dangerous articles that
are highly regulated by the NFA and GCA, and ATF's history of often
classifying weapons with attached ``stabilizing braces'' as short-
barreled rifles, see section II.B of this preamble, indicated to
firearm owners the potential for future regulations that would affect
individuals' ``stabilizing braces.''
Finally, a restriction ``directed at the protection of public
health and safety . . . is the type of regulation in which the private
interest has traditionally been most confined and governments are given
the greatest leeway to act without the need to compensate those
affected by their actions.'' Rose Acre Farms, Inc. v. United States,
559 F.3d 1260, 1281 (Fed. Cir. 2009). The character of the current
governmental action--i.e., a regulation to promote public safety--thus
weighs in favor of a conclusion that the rule will not result in a
taking.
d. Unconstitutionally Vague Under the Fifth Amendment
Comments Received
Commenters argued that the proposed regulations violate the Due
Process Clause of the Fifth Amendment. Commenters argued that the
proposed rule was ``impossibly vague and arbitrary'' and that none of
the factors were based in Federal statute. Commenters asserted that the
rule only serves ``to make criminal via regulation that which the
statute does not make criminal, complicate, confuse, make ambiguous and
otherwise obfuscate and obstruct the industry from engaging in lawful
commerce.'' Specifically, one commenter stated that clarity is an
essential element of the Fifth Amendment and cited to the Supreme Court
case F.C.C. v. Fox Television Stations, 567 U.S. 239 (2012) (``Fox'').
The commenter argued that the definition of ``rifle'' would be
``incomprehensible,'' as it would now include ``firearms that are not
intended by the manufacturer or designer to be fired from the shoulder[
]'' and, further, that the weighted factors were also unintelligible.
The commenter asserted that this ambiguity would deprive market
participants and the public of notice about what the law is. Similarly,
commenters stated that the proposed rule, as written, produced
confusion that would make it more difficult for
[[Page 6551]]
law abiding citizens and businesses to comply with the regulation.
Several commenters stated the rule and the criteria ATF would rely
on were subjective, arbitrary and capricious, or vague, such that that
an average person could not understand the rule well enough to avoid
committing a felony or understand what is required. One commenter
questioned what would happen if a vendor who sold firearms equipped
with a ``stabilizing brace'' did not resubmit the firearm and ``brace''
to ATF to inquire about their classification and asked how the owners
of such firearms would be made aware of the new classification.
Department Response
The Department disagrees with commenters that the rule is
unconstitutionally vague but agrees that some of the criteria on the
worksheet would have been difficult for users to apply. For the reasons
discussed in section IV.B.1-3 of this preamble, the rule does not adopt
the proposed Worksheet 4999 or the point system. Rather, the Department
is incorporating into the definition of ``rifle'' a list of objective
design features and other factors, all of which were part of the NPRM,
to better clarify when a firearm equipped with a ``stabilizing brace''
or other rearward attachment is designed, made, and intended to be
fired from the shoulder. Knowledge of the proper inquiry and factors
that ATF considers when making a classification will allow members of
the firearm industry and the public to evaluate whether a weapon
incorporating a ``stabilizing brace'' or other rearward attachment is,
in fact, a short-barreled rifle subject to the NFA. The Department does
not believe the listed factors are complicated, confusing, or
ambiguous. The Department carefully considered the many comments it
received in deciding how best to define the relevant factors. In the
final regulatory text, the Department selected the critical objective
design features and other factors that are necessary for determining
whether a firearm is designed, made, and intended to be fired from the
shoulder.
The Department disagrees with commenters that the definition of
``rifle'' now includes other firearms that are not intended by the
manufacturer or designer to be fired from the shoulder. Under the best
reading of the term ``rifle'' in the GCA and NFA, the term should be
applied to weapons without regard for whether, when equipped with a
``stabilizing brace,'' they can be fired with a single hand in certain
circumstances or by a particular individual. See United States v.
Alvarez-Sanchez, 511 U.S. 350, 356 (1994) (``When interpreting a
statute, we look first and foremost to its text.''). Accordingly, the
Department has concluded that ATF will examine the objective design
features of each weapon and other factors to determine whether a
firearm is designed, made, and intended to be fired from the shoulder.
The listed criteria in this rule are mentioned and discussed in the
NPRM. The Department provides further discussion on each of the factors
in sections IV.B.2 and IV.B.3 of this preamble.
The Department believes the rule provides sufficient notice under
the Due Process Clause of the Constitution. As an initial matter, to
the extent that the commenters believe that Due Process Clause is
implicated by the rule because the rule itself imposes criminal or
civil restrictions, the commentators are mistaken. The relevant legal
restrictions are found in the NFA and GCA, and this rule does not
alter, amend, or add to those restrictions; instead, the rule informs
the public of the best interpretation of the relevant statutory
provisions.
The Department recognizes that clarity of legal restrictions is an
essential element of the Fifth Amendment. See Fox, 567 U.S. 239. The
Supreme Court has explained that ``[a] fundamental principle in our
legal system is that laws which regulate persons or entities must give
fair notice of conduct that is forbidden or required.'' Id. at 253
(citing Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)
(``[A] statute which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must necessarily guess
at its meaning and differ as to its application, violates the first
essential of due process of law.'')). The question is ``whether the
text of the statute and its implementing regulations, read together,
give ordinary citizens fair notice with respect to what the statute and
regulations forbid, and whether the statute and regulations read
together adequately provide for principled enforcement by making clear
what conduct of the defendant violates the statutory scheme.'' United
States v. Zhi Yong Guo, 634 F.3d 1119, 1123 (9th Cir. 2011) (citing
City of Chicago v. Morales, 527 U.S. 41, 56 (1999)). However,
``[c]ondemned to the use of words, we can never expect mathematical
certainty from our language.'' Grayned v. City of Rockford, 408 U.S.
104, 110 (1972); see also Ward v. Rock Against Racism, 491 U.S. 781,
794 (1989) (``perfect clarity and precise guidance have never been
required even of regulations that restrict expressive activity'').
The Supreme Court has held that a regulatory scheme similar to the
statutory and regulatory scheme discussed in this final rule is not
facially unconstitutional under the void for vagueness doctrine. See
Vill. Of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489
(1982). A local ordinance in that case required a business to obtain a
license if it sold ``any items, effect, paraphernalia, accessory or
thing which is designed or marketed for use with illegal cannabis or
drugs, as defined by Illinois Revised Statutes.'' Id. at 492. The
vagueness challenge to the ordinance ``focuse[d] on the language
`designed or marketed for use.' '' Id. at 500. As relevant to this
final rule, the Court held that the phrase ``designed for use'' as used
in the ordinance encompassed any ``item that is principally used with
illegal drugs by virtue of its objective features,'' and that this
understanding of the term was ``sufficiently clear'' to withstand the
vagueness challenge. Id. at 501. By similar reasoning, the final rule
is sufficiently clear because, like the ordinance at issue in Flipside,
it defines the relevant item on the basis of whether the objective
features of the item (here, a weapon with an attached ``stabilizing
brace'') in consideration with other evidence listed in this rule
indicate that the firearm is designed, made, and intended for a
particular purpose (here, firing from the shoulder).
The Eleventh Circuit has reached a similar conclusion about a
similar scheme. See High Ol' Times, Inc. v. Busbee, 673 F.2d 1225 (11th
Cir. 1982). The Georgia statute at issue in that case ``define[d] a
`drug related object' as any object `which is designed or marketed as
useful primarily for' use with controlled substances.'' Id. at 1230.
The court construed the phrase ``designed for use'' to mean the
intended use of the item ``as manifested by the objective physical
characteristics of the item.'' Id. at 1230-31. The court then rejected
a vagueness challenge to the statute, citing Flipside for the
proposition that the standard was sufficiently clear. Id. at 1231.
Again, then, the use of the objective physical features of an item to
determine the item's intended use--just as this final rule requires--
was not unconstitutionally vague. Courts have applied similar reasoning
in other contexts, including the regulation of firearms. See, e.g.,
United States v. Kuzma, 967 F.3d 959, 969-70 (9th Cir.), cert. denied,
141 S. Ct. 939 (2020) (rejecting a vagueness challenge to the phrase
``designed to shoot . . . automatically'' in the definition of
[[Page 6552]]
``machine gun'' after explaining the inquiry turns on the relevant
item's ``specific configuration of objective structural features'');
id. at 970 (``By focusing on whether a device has a specific
configuration of objective features that, absent a minor defect, would
give it the capacity to shoot automatically, the phrase a `weapon which
. . . is designed to shoot . . . automatically' provides both
sufficient notice as to what is prohibited and sufficient guidance to
prevent against arbitrary enforcement.'' (emphasis in the original));
United States v. Biro, 143 F.3d 1421, 1427 (11th Cir. 1998) (rejecting
a vagueness challenge to a statute because the ``objective
characteristics'' of the items at issue indicated they were
```primarily useful for the purpose of the surreptitious interception'
of oral communications'').
The Department also believes that the meaning of the particular
objective design features incorporated in this rule would be readily
ascertainable. The final regulatory text first directs an individual to
examine whether the firearm includes 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. This
language would thus give an individual fair notice that surface area is
the first particular characteristic of the weapon the individual needs
to evaluate. Cf. United States v. Lim, 444 F.3d 910, 916 (7th Cir.
2006) (NFA regulation of short-barreled shotgun not unconstitutionally
vague as to the minimum length of the barrel, since the statute gave
defendant fair notice of the particular characteristic that had to be
measured). Next, the individual would need to identify whether the
firearm incorporates other objective characteristics listed in this
rule, including weight and length of the firearm as compared to the
length of similarly designed rifles; sights and scopes with eye relief
that require shouldering of the firearm; or length of pull consistent
with similarly designed rifles (including whether there is an
adjustable or telescoping attachment with the ability to lock into
various positions). The rule also includes as relevant factors the
intended and actual use of the firearm, including the manufacturer's
direct or indirect marketing or promotional materials and information
demonstrating the likely use of the weapon in the general community. An
individual would be able to determine the meaning of the terms used in
the rule based on publicly available information regarding firearms,
practical application through the use of the firearm (e.g., use of
scopes), and the examples provided in this preamble. Cf. United States
v. Catanzaro, 368 F. Supp 450, 454 (Dist. Ct. 1973) (rejecting a
vagueness challenge where standard firearms reference books could be
used to help give meaning to statutorily defined terms).
In addition, by going through this rulemaking process, the
Department has provided notice and opportunity to comment regarding the
best interpretation of the statutory definition and how, in future
enforcement and classification determinations, ATF intends to evaluate
whether any particular weapon configuration constitutes a ``rifle.''
The promulgation of this rule through notice-and-comment procedures
reduces vagueness concerns by providing fair notice of the definition
of a ``rifle.'' See Guedes v. Bureau of Alcohol, Tobacco, Firearms, and
Explosives, 920 F.3d 1, 28 (D.C. Cir. 2019); see also Guedes v. Bureau
of Alcohol, Tobacco, Firearms, and Explosives, 520 F. Supp. 3d 51, 71
(D.D.C. 2021).
Next, to the extent that an individual is unsure about whether a
particular firearm with a particular attached ``stabilizing brace''
constitutes a rifle, that individual is free to request a
classification determination from ATF for additional clarity. Moreover,
ATF is publishing information simultaneously with this rule to inform
members of the public of how they might be impacted based on (1) common
weapon platforms with attached ``stabilizing brace'' brace designs and
(2) examples of commercially available firearms with ``stabilizing
braces'' that are short-barreled rifles. For individuals with such
firearms equipped with a ``stabilizing brace,'' actions such as
registration in the NFRTR will need to be taken as discussed in section
V.B of this preamble. ATF will inform the public as new weapon
platforms and ``stabilizing braces'' or other devices become available.
e. Ex Post Facto Clause
Comments Received
Numerous commenters asserted that the rule creates an
unconstitutional Ex Post Facto law in violation of Article 1, Section 9
of the Constitution. The commenters argued that customers bought
``stabilizing brace'' products in good faith for almost a decade. They
stated that this rule is a ``clear example of criminalizing activity
(possessing a certain configuration of firearm) at [the] federal level
(reinterpretation of the NFA) that was not prohibited beforehand.''
Similarly, other commenters deemed the proposed rule a ``retroactive
law,'' as they believed it would retroactively declare possession of
braces and braced pistols to be a serious crime even though ATF had,
over the past 10 years, permitted the entry of these products into the
marketplace via multiple guidance letters. Another commenter argued
that the proposed rule imposes impermissible retroactive regulatory
obligations, which is not favored in Federal law. To issue a
retroactive rule, the same commenter argued, there needs to be an
express grant of statutory authority under the NFA, which the
Department does not have except in a narrow set of circumstances that
are not applicable here. The commenter also cited to United States v.
Cash, 149 F.3d 706, 707 (7th Cir. 1998), where the court stated, ``the
Secretary cannot give retroactive application to tax regulations.''
Department Response
The Department disagrees that the rule violates the Ex Post Facto
Clause. In Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798), Justice
Chase set out four types of laws that violate the Ex Post Facto Clause:
(1) ``Every law that makes an action, done before the passing of the
law, and which was innocent when done, criminal; and punishes such
action;'' (2)\.\ ``Every law that aggravates a crime, or makes it
greater than it was, when committed;'' (3) ``Every law that changes the
punishment, and inflicts a greater punishment'' and (4) ``Every law
that alters the legal rules of evidence, and receives less, or
different, testimony, than the law required at the time of the
commission of the offence, in order to convict the offender.''
(Emphases in the original.)
Citing Calder, the Supreme Court has explained that a ``law must be
retrospective--that is, it must apply to events occurring before its
enactment--and it must disadvantage the offender affected by it by
altering the definition of criminal conduct or increasing the
punishment for the crime'' to be considered as falling within the ex
post facto prohibition. Lynce v. Mathis, 519 U.S. 433, 441 (1997)
(citation and quotation marks omitted). This rule does not meet the
definition of any of the four types of laws that the Supreme Court has
held violate the Ex Post Facto Clause. Indeed, the rule does not itself
impose any liability on any individual or otherwise regulate primary
conduct. Instead, the present rule describes the proper application of
the phrase ``designed . . . , made . . . , and
[[Page 6553]]
intended to be fired from the shoulder,'' as used to define a ``rifle''
in the GCA and NFA. See 18 U.S.C. 921(a)(7); 26 U.S.C. 5845(c). The
rule does not impose liability independent of already preexisting
requirements for short-barreled rifles under those statutes, i.e.,
interstate transportation, registration, transfer and making approval,
and transfer and making tax. See 18 U.S.C. 922(a)(4); 26 U.S.C. 5811-
5812, 5821-5822, 5841.
In any event, courts have consistently recognized that regulating
the continued or future possession of a firearm that is already
possessed does not implicate the Ex Post Facto Clause because such a
regulation does not criminalize past conduct. See, e.g., United States
v. Pfeifer, 371 F.3d 430, 436-37 (8th Cir. 2004); United States v.
Mitchell, 209 F.3d 319, 322 (4th Cir. 2000); United States v. Brady, 26
F.3d 282, 290-91 (2d Cir. 1994); United States v. Gillies, 851 F.2d
492, 495-96 (1st Cir. 1988) (Breyer, J.); United States v. D'Angelo,
819 F.2d 1062, 1065-66 (11th Cir. 1987); see also Samuels v. McCurdy,
267 U.S. 188, 193 (1925) (rejecting Ex Post Facto Clause challenge to
statute that prohibited the post-enactment possession of intoxicating
liquor, even when the liquor was lawfully acquired before the statute's
enactment).
Moreover, the rule expressly provides options for unlicensed
individuals and FFLs to comply with the requirements of the NFA if they
are currently in possession of firearms equipped with a ``stabilizing
brace'' and a barrel length of less than 16 inches that are short-
barreled rifles. The Department, in its enforcement discretion, has
determined that current possessors of these affected firearms have
until 120 days after this rule is published to take the necessary
actions, as described in this rule, to comply with Federal law to avoid
civil and criminal penalties. Additionally, in an exercise of its
enforcement discretion, the Department has determined that individuals
and FFLs will not be liable for paying past making and transfer taxes
for weapons of the sort described in this rule that are NFA firearms.
For a further discussion on tax forbearance, see sections IV.B.8.e,
IV.B.9.b-c, and V.C of this preamble.\149\
---------------------------------------------------------------------------
\149\ With respect to the commenter that cited United States v.
Cash, 149 F.3d 706, 707 (7th Cir. 1998), ATF notes that the court's
statement that ``the Secretary cannot give retroactive application
to tax regulations'' referred to the current version of 26 U.S.C.
7805(b). As discussed below, however, the pre-1996 version of
section 7805(b) applies to this rule, and that version lacks the
restriction on retroactive liability. Indeed, under the pre-1996
version, ``there is a presumption that every regulation will operate
retroactively, unless the Secretary specifies otherwise.''
UnionBancal Corp. v. Comm'r, 113 T.C. 309, 327 (1999), aff'd, 305
F.3d 976 (9th Cir. 2002).
---------------------------------------------------------------------------
f. Equal Protection Clause
Comments Received
Numerous commenters stated that the rule has a disparate impact on
women and persons with disabilities and thus violates the Equal
Protection Clause. Additionally, at least one commenter cited to Harper
v. Virginia Board of Elections, 383 U.S. 663 (1966), in which the
Supreme Court held that a State's conditioning the right to vote on the
payment of a fee or tax violates the Equal Protection Clause of the
Fourteenth Amendment. The commenter said that the Court held that,
where ``fundamental rights and liberties are asserted under the Equal
Protection Clause, classifications which might invade or restrain them
must be closely scrutinized and carefully confined.'' Id. at 670. The
commenter went on to state that, ``[if] this is such a legal certainty,
how is the imposition of taxes, registration, and other requirements on
[the] individual practice of the Second Amendment right . . . not also
a violation of the Equal Protection Clause of the Fifth Amendment where
the Federal Government is concerned?''
Department Response
The Department disagrees that the rule violates the Equal
Protection Clause. As an initial matter, the rule itself does not
require the payment of any fees or taxes, nor does the rule itself
directly regulate firearms. Instead, the rule does no more than
articulate the best interpretation of the relevant statutory
provisions.
Moreover, it is well established the ``Equal Protection Clause
forbids only intentional discrimination.'' Horner v. Ky. High School
Athletic Ass'n, 43 F.3d 265, 276 (6th Cir. 1994). Even if ``a neutral
law has a disproportionately adverse effect . . . , it is
unconstitutional under the Equal Protection Clause only if that impact
can be traced to a discriminatory purpose.'' Personnel Administrator of
Massachusetts v. Feeney, 442 U.S. 256, 272 (1979); see also Soto v.
Flores, 103 F.3d 1056, 1067 (1st Cir. 1997) (``It is a truism that
under Equal Protection Clause jurisprudence, a showing of
disproportionate impact alone is not enough to establish a
constitutional violation.''). ``Discriminatory intent'' requires that
the ``decisionmaker selected or reaffirmed a particular course of
action at least in part `because of,' not merely `in spite of' the
law's differential treatment of a particular class of persons.''
SECSYS, LLC v. Vigil, 666 F.3d 678, 685 (10th Cir. 2012) (Gorsuch, J.)
(alteration and some quotation marks omitted) (citing Feeney, 442 U.S.
at 279). Consequently, ``when the law under review is generally
applicable to all persons, no presumption of intentional discrimination
arises; proof is required. This is so because many laws, perhaps most
and often unavoidably, affect some groups of persons differently than
others even though they involve no intentional discrimination.'' Id.
(Emphasis in the original.)
Both the NFA and this final rule are generally applicable to all
persons. Neither the NFA nor this rule creates discrete, objectively
identifiable classifications of similarly situated individuals that are
intentionally treated differently under its provisions. See San Antonio
Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 60 (1973) (Stewart, J.,
concurring); Tex. Entertainment Ass'n v. Hegar, 10 F.4th 495, 513 (5th
Cir. 2021); Corey Airport Servs., Inc. v. Clear Channel Outdoor, Inc.,
682 F.3d 1293, 1296-97 (11th Cir. 2012) (``[N]o valid equal protection
claim exists'' in the absence ``of a discrete and identifiable group to
which [the plaintiff] belonged and which the [government] treated in a
discriminatory, prejudicial manner'' under a ``governmental
classification.'').
Moreover, contrary to commenters' assertions, the Department doubts
that this rule will have a disparate impact on women and persons with
disabilities. The Department has no evidence that women or persons with
disabilities are disproportionately affected by the rule's definition
of rifle, and commenters have not provided any. In any event, the rule
does not prohibit ownership of a firearm equipped with a ``stabilizing
brace''; instead, it only requires lawful registration in the NFRTR of
those combinations of firearms and ``braces'' that meet the statutory
definition of an NFA ``firearm.'' And even assuming that this rule does
impact some groups differently, the rule--as just stated--runs afoul of
the Equal Protection Clause only ``if that impact can be traced to a
discriminatory purpose.'' Feeney, 442 U.S. at 272. Here, there is no
such purpose.
Next, even if the NFA or this rule did implicate equal protection
principles, the Department disagrees that the NFA's regulatory scheme
violates the Equal Protection Clause. If a ``classification
`impermissibly interferes with the exercise of a fundamental right or
operates to the peculiar advantage of a suspect class,' [a court will]
subject the classification to strict scrutiny. Otherwise, [courts] will
uphold the classification if it is `rationally related to
[[Page 6554]]
a legitimate state interest.' '' Mance v. Sessions, 896 F.3d 699, 711
(5th Cir. 2018) (citing NRA v. ATF, 700 F.3d 185, 211-12 (5th Cir.
2012)). As discussed above, there is a fundamental right to own
firearms, but the Court in Heller noted the right is not absolute or
unlimited. 554 U.S. at 595. In Heller, the Supreme Court specifically
recognized an ``important limitation on the right to keep and carry
arms,'' and the Court stated that this limitation is supported by ``the
historical tradition of prohibiting the carrying of `dangerous and
unusual weapons.' '' Id. at 627. Because this regulation does not
implicate the right protected by the Second Amendment as described by
the Court in Heller, a court would likely review this regulation under
a rational basis test. Under rational basis review, a classification
``is accorded a strong presumption of validity.'' Heller v. Doe by Doe,
509 U.S. 312, 319 (1993). ``The firearm regulatory scheme . . . is
consonant with the concept of equal protection embodied in the Due
Process Clause of the Fifth Amendment if there is some rational basis
for the statutory distinctions made . . . or . . . they have some
relevance to the purpose for which the classification is made.'' Lewis
v. United States, 445 U.S. 55, 65 (1980) (quotation marks omitted).
There is clearly a rational basis for requiring accurate
classifications and regulation of weapons. Congress, when enacting the
NFA, was concerned ``mainly with clearly identifiable weapons which
were the cause of increasing violent crime and which had no lawful
uses.'' United States v. Posnjak, 457 F.2d 1110, 1116 (2d Cir. 1972).
If a ``stabilizing brace'' has such a transformative effect on a pistol
that the weapon's overall configuration becomes a short-barreled rifle,
then the NFA applies. Hence, the NFA's regulation of firearms, and its
application of those statutory requirements to weapons equipped with a
``stabilizing brace,'' has a more than rational basis.
The Department disagrees with the commenters that cited Harper v.
Virginia State Board of Elections, where the Supreme Court held that a
``State violates the Equal Protection Clause of the Fourteenth
Amendment whenever it makes affluence of the voter or payment of any
fee an electoral standard.'' 383 U.S. at 666. The Court in Harper held
that, ``[t]o introduce wealth or the payment of a fee as a measure to a
voter's qualifications is to introduce a capricious or irrelevant
factor.'' Id. at 668. Harper is distinguishable because Congress passed
the NFA to regulate dangerous and unusual weapons, and the Supreme
Court in Heller recognized that there is no fundamental right to the
possession of such weapons. 554 U.S. at 627. Thus, unlike the fee
imposed to vote in Harper, the taxes imposed under the NFA do not
infringe on an individual's fundamental right. Rather, the NFA tax is a
rational mechanism to control the making and transfer of dangerous and
unusual firearms that are concealable and capable of more damage than
other firearms. See Marzzarella, 614 F.3d at 90-95.
5. General Impact of the Rule
a. Punishes Law-Abiding Citizens
Comments Received
Related to the Ex Post Facto law comments, many commenters believed
that this rule will make millions of law-abiding Americans felons
overnight. Commenters stated the new rule would make each and every
``stabilizing brace'' worthless and possession of such a ``brace''
would become a felony if not registered. Commenters also stated that,
if promulgated, the rule would impact at least three million law-
abiding citizens and threaten millions of citizens with prison, harsh
fines, and forfeiture of firearms or make them felons. One commenter
claimed that the rule would ``have the effect of creating an altogether
new crime--one that may sweep up law-abiding gun owners based on
actions they already took in full conformity with the law as it existed
at the time.'' Another commenter believed the proposed rule would
needlessly subject tens of millions of Americans' personally
identifiable information (``PII'') to the NFRTR, ``which would further
endanger each individual from a data privacy and security
perspective.''
Department Response
The Department disagrees with the assertions that this rule is
intended to or will make felons of law-abiding citizens. This rule does
not itself impose any new restrictions; instead, this rule articulates
the best interpretation of the relevant statutory terms. Nothing in
this rule changes those underlying statutory requirements. Nor does
this rule affect ``stabilizing brace'' devices alone. Further, the
Department disagrees with the comment that three million law-abiding
citizens will be subject to harsh fines and forfeiture of firearms.
Commenters with these objections failed to recognize that nothing in
the rule or the relevant statutes prevents an individual from
continuing to possess or use a ``stabilizing brace'' on heavy pistols
or rifles. This rule only serves to clarify that certain weapons
equipped with ``stabilizing braces'' are short-barreled rifles
regulated under the NFA, thus requiring registration, transfer and
making approval, and the payment of a making or transfer tax.
Furthermore, this rule also provides options for individuals who
are in possession of a firearm equipped with a ``stabilizing brace''
that is an unregistered short-barreled rifle, as that statutory term is
properly understood. The options for current unlicensed possessors
include the removal and replacement of the offending feature (the
barrel less than 16 inches); submission of an ATF E-Form 1 by May 31,
2023, to register the firearm as a short-barreled rifle; removal of the
``stabilizing brace'' so that it cannot be reattached to the firearm;
turning the firearm into a local ATF office; or destroying the firearm.
For a detailed discussion of the options available for individuals to
comply with the statute, see section V.B of this preamble. In an
exercise of the Department's enforcement discretion, it has determined
that any criminal liability for failure to take the necessary action to
comply with Federal law for weapons that have already been made will
result only for conduct occurring after the time period to register
ends. Additionally, in lieu of criminal prosecution, the Department
may, for conduct occurring after the 120-day period, pursue forfeiture
of the firearm pursuant to 26 U.S.C. 5872.
The Department also disagrees this rule needlessly harms citizens
by risking exposure of PII. The NFA requires that the registry of NFA
firearms in the NFRTR include the identification of the firearm, date
of registration, and identification and address of person entitled to
possession of the firearm. See 26 U.S.C. 5841. The information in the
NFRTR is confidential, and ATF officers or employees and other persons
are prohibited by law from disclosing confidential NFA tax information.
See 26 U.S.C. 6103. This provision of Federal law applies to all
officers and employees of the United States and other persons with
access to excise tax returns or tax return information. Further,
regulations also generally prohibit disclosure of ATF records or
information, and, if records are to be disclosed, the regulations
specify disclosure methodology and requirements. See 27 CFR 70.803.
Criminal penalties for disclosing this information include a fine,
imprisonment up to one year, or both, and dismissal from employment. 18
U.S.C. 1905. The regulations also provide for criminal penalties and
[[Page 6555]]
dismissal for violations. See 27 CFR 70.803(g).
b. Purchasers Unaware of Legal Issues
Comments Received
Commenters believed it was unfair that ATF would go back on its
word after a decade in which millions of weapons with an attached
``stabilizing brace'' were bought and sold and now try to crack down on
them. Commenters felt manufacturers have been working with the ATF for
years to try to be compliant. The commenters believed that ATF, on the
other hand, has just kicked the issue down the road without giving
manufacturers and law-abiding Americans straight answers about the use
of ``stabilizing braces.'' Commenters claimed ATF not only advised that
``braces'' were legal, but at one point informed the public that
shouldering accidently was legal. Several commenters argued that owners
of firearms with an attached ``stabilizing brace'' were not aware of
the legal issues when they made the purchases in the past 10 years.
Some commenters stated that they purposefully chose the firearm with a
``stabilizing brace'' because ATF recognized them as pistols.
Commenters stated that Americans do not want to go to jail just because
a product that was legal is suddenly declared illegal based on an
arbitrary decision by ATF leadership.
Department Response
The Department agrees that there has been confusion generated from
inconsistent classifications since the initial ``stabilizing brace''
classification and subsequent classifications after 2012 but disagrees
with commenters' implication that ATF ``approved'' all ``stabilizing
braces'' for use on AR-style pistols (or other similarly heavy
pistols). While firearm manufacturers are not required to submit a
firearm to ATF for classification under Federal law prior to marketing
those firearms, many do so because it helps them to anticipate how
their firearm will be regulated under the law. As discussed earlier,
ATF received and responded to several classification requests for how a
``stabilizing brace'' device impacts a firearm's classification under
Federal law.
Additionally, after the initial response in 2012, ATF observed the
marketing of various new ``stabilizing braces'' that had additional
features such as adjustability, greater surface area, and increased
length of pull. As an example, one ``brace'' manufacturer sold at least
18 models of ``stabilizing brace'' products as ``ATF compliant,'' when
in fact ATF provided classifications for only 2 ``brace'' models for
this manufacturer. Further, ATF specifically requested that this
manufacturer stop marketing these additional models as ATF compliant
beginning in July 2018.\150\ While the Department recognizes there have
been inconsistencies in firearms classifications that have generated
confusion over time, ATF has never taken the position that any
``stabilizing brace'' may be equipped on a firearm without evaluating
the objective design features of the firearm. Such a position would
lead to the illogical result that anything that purports to be a
``stabilizing brace'' makes a firearm a pistol regardless of the
objective design features of the firearm. For example, were ATF to
accept this position, a large .50 caliber firearm, as pictured below,
would fall outside the definition of a ``rifle'' solely because of the
attached ``stabilizing brace.''
---------------------------------------------------------------------------
\150\ Letter from ATF #311123 (Mar. 3, 2020); Letter from ATF
#308999 (July 18, 2018).
[GRAPHIC] [TIFF OMITTED] TR31JA23.082
Based on the relevant statutory provisions, FATD classifies
firearms based on the objective design characteristics of a particular
firearm configuration as presented, as well as other evidence listed in
this rule that may reflect the intended use of the weapon. And FATD has
consistently noted that a ``stabilizing brace'' could design or
redesign a firearm to be fired from the shoulder based on the objective
features of the firearm as configured. Further, in December 2018, ATF
determined that firearms equipped with ``stabilizing braces'' must be
classified based on the overall configuration of the weapon.\151\ As
set forth in this rule, each firearm equipped with a ``stabilizing
brace'' device will be classified based on the objective design
features described in this rule, the manufacturer's direct and indirect
marketing materials, and information demonstrating likely use by the
general community. This evidence will be used to verify the
manufacturer's purported intent regarding the use of the weapon.
---------------------------------------------------------------------------
\151\ See supra section II.B and note 57.
---------------------------------------------------------------------------
The Department recognizes that some purchasers may have been
unaware of the legal issues when first acquiring a ``brace'' and
affixing it to their firearm or acquiring a firearm equipped with a
``stabilizing brace.'' However, in light of marketing materials,
industry reviews, and general public use of firearms equipped with
``stabilizing braces,'' \152\ many users of firearms equipped with
``stabilizing braces'' likely are aware of the legal controversies
surrounding these devices. See section IV.B.1.c, and IV.B.3.c of this
preamble. At the same time, ATF also put out an Open Letter in 2015 and
a response letter regarding the 2015 Open Letter in 2017, which were
widely available to the public and discussed the use and impact of
``stabilizing braces'' on a firearm's classification under the NFA.
These actions put the public on notice that there were questions within
the firearms industry and community regarding classification issues
related to firearms with ``stabilizing braces.''
---------------------------------------------------------------------------
\152\ See supra notes 87-94 and 96-98.
---------------------------------------------------------------------------
Furthermore, the NPRM published in June 2021 provided notice to the
public that the Department would be resolving the confusion surrounding
how ATF evaluates whether a firearm equipped with a ``stabilizing
brace'' is a rifle or short-barreled rifle under the NFA and GCA. And
this rule informs the public of the best interpretation of the relevant
statutory definitions in determining whether a firearm with a
``stabilizing brace'' is designed, made, and intended to be fired from
the shoulder. The rule further informs the public of options for
individuals currently in possession of a firearm with a ``stabilizing
brace'' that is
[[Page 6556]]
a short-barreled rifle. For example, so long as an affected person
files the relevant E-Form 1 by May 31, 2023, the Department will permit
a safe harbor period between the date on which a person's application
for registration is filed and the date a person receives ATF approval
or disapproval of the application. Provided the registration form is
properly submitted and documented, the Department, in an exercise of
its discretion, will refrain from any enforcement of the NFA's
provisions during this time period. Any penalties for non-compliance
with NFA regulations would only be assessed on individuals who possess
or transfer unregistered short-barreled rifles in the future. These
penalties may include criminal penalties, tax liability, or forfeiture
of the firearm.
c. Political Motivation
Comments Received
Many commenters believed that the rationale for the proposed rule
was politically motivated. As one commenter said, the current
presidential administration feels it has the ``political cover to take
action in this manner.'' Another commenter stated that this is ``not
the proper way to conduct administrative guidance, where something is
legal, then suddenly illegal, based on shifting political winds.''
Furthermore, other commenters said the only thing that has changed is
the ``political climate,'' not the law the ATF is interpreting.'' One
commenter stated that the ``lack of data or even rational arguments
simply proves that this entire rule is politically motivated.'' Another
commenter stated that ``[t]he Biden Administration, via the [ATF], is
once again taking aim at the Second Amendment.'' One commenter stated
that the proposed rule was ``political posturing'' dressed up as a
regulation that ATF should not issue. The commenter thought ATF should
try to more effectively carry out its existing responsibilities and
refrain from inhibiting the freedom of the people. Other commenters
thought the proposed rule made ATF look foolish and partisan.
Department Response
The Department disagrees that the rationale for this rule is
improper or politically motivated in the pejorative sense apparently
used by some commenters. The Department notes that both the previous
administration and this administration took and continue to take
actions to notify the public of the factors considered in the
classification of firearms equipped with a ``stabilizing brace.'' See
section II of this preamble. Moreover, ``Presidential administrations
are elected to make policy. And as long as the agency remains within
the bounds established by Congress, it is entitled to assess
administrative records and evaluate priorities in light of the
philosophy of the administration.'' Guedes v. ATF, 920 F.3d 1, 34 (D.C.
Cir. 2019) (alteration and quotation marks omitted). Thus, even if a
rule is ``politically motivated'' to the extent that a presidential
administration's policies can inform which problems an agency seeks to
most urgently address, that fact does mean the rule is motivated by,
for example, animus towards the Second Amendment, as some comments
seemed to suggest.
Next, as stated in the NPRM, ATF's publicly known position is that
a firearm does not evade classification of the NFA merely because the
firearm is configured with a device, including a device marketed as a
``stabilizing brace.'' The use of a ``stabilizing brace'' cannot be
used as a tool to circumvent the NFA's registration, transfer, and tax
requirements or the GCA's interstate transportation restrictions
surrounding short-barreled rifles. The Department considers this
rulemaking necessary to clarify the best interpretation of when a
weapon is designed, made, and intended to be fired from the shoulder in
light of the proliferation of various ``stabilizing brace'' models
that, when assembled on firearms, design the firearm to be fired from
the shoulder, as well as the misuse and misapplication of ATF
classification letters as earlier discussed. Further, the Department is
responding to past criticism that ATF has not more widely published
criteria and for not publishing a definitive approach. See, e.g.,
Letter for William Barr, Attorney General, and Regina Lombardo, Acting
Director, ATF, from Matthew Gaetz, United States Representative, et al.
(June 16, 2020). Lastly, the Department disagrees that it provided no
data to justify this rulemaking. The NPRM noted that firearms equipped
with a ``stabilizing brace'' have been used in at least two mass
shootings, with the shooters in both instances reportedly using the
``brace'' as a shoulder stock. 86 FR at 30828. This rule, in section
IV.A.2 of this preamble, also notes the prevalence of firearms with
``stabilizing braces'' being connected to criminal investigations.
d. Need for ``Stabilizing Braces''
i. Disabled Persons/Elderly/Different Body Shapes
Comments Received
Many commenters stressed that ``stabilizing braces'' are commonly
used by millions of law-abiding Americans for various reasons.
Commenters disagreed with the characterization that heavy or large
pistols could be fired with one hand, asserting that the inability to
do so is one reason that ``stabilizing braces'' are a popular accessory
to add onto pistols. One commenter questioned ATF's claim that in the
NPRM that pistols that fall below the weight and length threshold are
easily fired one-handed. Another commenter said the rule did not
accurately reflect the difficulty in aiming different weapons and did
not account for the range of weapons different people can and cannot
aim with one hand.
Numerous other commenters pointed out the use and need of
``braces'' by persons with disabilities or with limited mobility or
strength. Some commenters described the devices as being used to assist
in shooting large pistols safely by distributing the weight of the
pistol to the firearm. Others also described the device as becoming
``an extension of the user's forearm such that the user may actually
release his or her grip from the handgun to relax.'' (Emphasis
omitted.) Commenters also felt that this rule ``ignored the features of
``stabilizing braces'' that are beneficial to the disabled community
because it would make the devices less available to such individuals.
One commenter, a former firearms instructor, stated that he taught for
years the proper use of ``braces'' for those who were disabled or for
those with less mobility. He thought that ATF missed the mark when
classifying the ``braced'' firearms as short-barreled rifles if the
brace was used correctly. Another commenter appeared to claim that the
``brace'' has safety benefits when he stated that attachments can
protect a shooter's off hand from being placed in front of the barrel
and do not, in and of themselves, redesign a pistol to be fired with
more than one hand.
In contrast, one commenter claimed that he was part of the team
that designed and submitted the first ``stabilizing brace,'' and that
their intent had nothing to do with assisting disabled individuals.
Rather, the commenter claimed their intent was to provide for a proper
means of firing a large frame pistol with one hand and that the
``brace'' was not intended to attach to the shooter's body.
[[Page 6557]]
Numerous other commenters also stated ATF had not considered the
variations in the size and shape of the human body. In particular, some
commenters claimed the rule ignored that individuals are physically
unique and would require different settings to optimize support and
comfort. One commenter protested the lack of an exemption for disabled
and smaller-sized persons who, according to the commenter, have clear
and legitimate needs for use of stabilizing braces.
Department Response
The Department disagrees that the rule will prevent people from
acquiring ``stabilizing braces'' or restrict the use of ``stabilizing
braces'' on firearms to assist or aid the shooter in single-handed
firing of heavy pistols. To the extent that the objective design
features and other evidence, as listed in this rule, regarding a
particular ``stabilizing brace'' device attached to a weapon do not
indicate that the weapon is designed, made, and intended to be fired
from the shoulder, that configuration is not a firearm within the
meaning of the NFA (and also not a ``short-barreled rifle'' under the
GCA); hence, the weapon is not subject to those statutes' restrictions.
Additionally, a firearm equipped with a ``stabilizing brace'' may
include a barrel of more than 16 inches in length and thus not be
regulated as a ``short-barreled rifle.'' Accordingly, even if
variations in strength and body type, as discussed by commenters, may
make the use of a ``stabilizing brace'' more beneficial to certain
individuals, those individuals may still be able to obtain
``stabilizing braces'' and affix them to a firearm without making a
short-barreled rifle under the NFA and GCA. And, to the extent that any
particular configuration does fall within the scope of the NFA and the
GCA, possession of that weapon remains legal so long as the owner of
the weapon complies with the statutes' restrictions. However, a
``stabilizing brace'' device cannot be used to circumvent the NFA by
permitting the possession of unregistered short-barreled rifles. This
rule does not provide any additional restrictions on the use of a
``stabilizing brace'' on any rifle configurations beyond those provided
by the relevant statutes. All individuals may register their firearm
with an attached ``stabilizing brace'' that is a short-barreled rifle
in the NFRTR or modify the firearm so it no longer constitutes a short-
barreled rifle.
ii. Shooting Accuracy and Safety
Comments Received
Many commenters stated that stabilizing braces make shooters more
accurate. A commenter stated that, by putting a brace on a regular size
pistol, one-handed shooting can be made more accurate and enjoyable.
One commenter stated that, although braces were originally developed
for use by disabled persons, ``[b]oth disabled and non-disabled persons
now use stabilizing braces as an additional point of support to ensure
firearm safety and accuracy in operation of pistols and shotguns.''
Likewise, another commenter asserted that braced pistols are more
accurate and less dangerous than unbraced pistols, and that the
attachment of a ``brace'' device makes it less likely that the pistol
will be used for violence. One commenter contended that the rule does
not take into account the actual intent of the person with the firearm,
who may want a brace on a light-weight pistol because the person is
weak, wishes to use it for accuracy, or for some other reason.
In addition, many commenters disagreed with ATF's repeated
characterization that pistols are fired using only one hand. Commenters
indicated that it is typical for shooters to hold a pistol with two
hands and that people are taught to shoot this way or may need to shoot
that way depending on their shooting ability. Another commenter said
``[j]ust because a handgun is statutorily defined as a firearm intended
to be fired by the use of a single hand does not exclude other firearm
types from using a stabilizing brace which can be fired in that
manner.'' (Emphasis in the original.)
Department Response
The Department acknowledges that some individuals typically use two
hands to hold and shoot pistols and that holding a pistol with two
hands can make shooting more accurate or enjoyable. The fact that the
``stabilizing brace'' makes firing a standard pistol more accurate or
more enjoyable is irrelevant. Regardless of a particular individual's
intent to fire a firearm with one hand, the relevant inquiry under the
best interpretation of the statutory provisions is whether the
objective design characteristics and other evidence associated with a
firearm configured with the ``stabilizing brace'' indicate that the
firearm is designed, made, and intended to be fired from the shoulder.
Again, this rule does not regulate or prevent the use of ``stabilizing
brace'' devices themselves but outlines factors that ATF will consider
when determining if a firearm equipped with a ``stabilizing brace'' is
a rifle or short-barreled rifle regulated by the NFA and GCA.
e. State Prohibitions of Short-Barreled Rifles
Comments Received
Some commenters pointed out that some States prohibit the
possession of short-barreled rifles, and they asserted that owners of
``braced'' firearms classified as short-barreled rifles would, as a
result, be forced to relinquish their firearms.\153\ A commenter
claimed ATF failed to address situations where attachment of a 16-inch
or longer barrel may not remedy the unlicensed possessors being in
violation of State law because the resulting firearm with a 16-inch
barrel would be a prohibited ``assault weapon'' under State law. Such
comments suggested that classifying a ``braced'' weapon as a short-
barreled rifle could result in a situation in which the individual may
not retain the firearm, nor could they modify the firearm with a longer
barrel. Retaining the firearm would amount to illegal possession of a
short-barreled rifle banned by State law; and modifying the weapon
would result in possession of an assault weapon banned by State law.
Additionally, some individuals, according to commenters, may not have
the ability to reconfigure a ``braced'' weapon to also comply with
State or local laws. In such scenarios, individuals would likely have
no other option but to turn the firearm in to ATF or local law
enforcement.
---------------------------------------------------------------------------
\153\ Commenters concerned about the application of State law
seemed to assume at times that the Federal definition of ``rifle,''
as clarified in this rule, would change the way in which State laws
are applied to their firearms. This is not necessarily the case.
Even when a State law uses the same word--such as ``rifle''--as does
Federal law, the States' specific definitions and interpretations of
the words in their statutes may differ from Federal definitions and
Federal interpretations of Federal law. Cf. Molina v. I.N.S., 981
F.2d 14, 19 (1st Cir. 1992) (Breyer, J.) (observing that nothing
``prevent[s] federal legislative authorities from writing federal
statutes that differ from state statutes or from attaching, to words
in a federal statute, a meaning that differs from the meaning
attached to the same word when used in a statute enacted by a
state''). Hence, this rule may have no effect on how States
determine what sort of weapons are ``rifles'' for purposes of State
law. Nonetheless, the Department acknowledges the concerns raised by
commenters, and, in order to ensure a comprehensive consideration of
the possible effects of this rule, the Department has accounted for
commenters' concerns in its final regulatory impact analysis and in
finalizing this rule.
---------------------------------------------------------------------------
Department Response
The Department disagrees that it is required to provide additional
options for individuals who may be in violation of State law. The
Attorney General is
[[Page 6558]]
responsible for both the criminal and regulatory enforcement of the GCA
and NFA as delegated to ATF. Therefore, ATF uses Federal law,
specifically the GCA and NFA, to govern the classification and
regulation of firearms. Although the Department has considered the
potential federalism implications of this rule under Executive Order
13132 (Federalism), as discussed in section VI.B of this preamble, it
has determined that the rule will not have significant federalism
implications. Moreover, that Executive Order focuses on the ``direct''
effects of Federal law on the relationship and distribution of power
between the States themselves and the Federal Government, not whether a
change in Federal law may have incidental effects for individuals as a
consequence of State laws where those individuals reside. Accordingly,
the Department is not required to further account for how its firearm
classification affects State laws.
In this rule, the Department provides several options to current
unlicensed possessors of firearms equipped with a ``stabilizing brace''
and a barrel length of less than 16 inches that are properly classified
as a short-barreled rifle under the NFA. These options, discussed in
section V.B of this preamble, are provided so that persons in
possession of a short-barreled rifle may comply with Federal law. The
Department recognizes that a State may pass a law or have laws that
further restrict the possession of certain firearms, including those
that fall under the purview of the NFA. The Department understands that
abandonment of the firearm may be the only option available for some
individuals to come into compliance with State law, but the options
discussed in this rule will allow many individuals to avoid this
outcome. For example, an individual may remove any offending
characteristics to remove the firearm from the purview of the NFA
(i.e., permanent removal of the ``stabilizing brace'' or the removal
and replacement of a barrel of less than 16 inches with a longer
barrel). Making these kinds of modifications will bring a firearm
outside the scope of the NFA. Thus, in States where firearms laws are
coextensive with the NFA, individuals will be able to continue
possessing the firearms.
The Department also acknowledges that some States may regulate a
firearm with 16-inch or longer barrel as an assault weapon under State
law. However, the Department still believes there are methods available
for individuals to comply with these States' laws. For example, an
individual can remove the ``stabilizing brace'' such that it cannot be
reattached, and the individual could possess the resulting pistol
consistent with the requirements of their State law. The Department
recognizes that the removal of a ``stabilizing brace'' from a firearm
that was originally received as a ``short-barreled rifle'' would cause
the firearm to become a ``weapon made from a rifle'' as defined by the
NFA. However, the Department, in its enforcement discretion, will allow
individuals to reconfigure the firearm to a pistol, so long as the
reconfiguration is completed within 120 days after this rule is
published. This reconfiguration may bring the firearm into compliance
with State law even if the State restricts possession of short-barreled
rifles. It may also be possible for the individual to consider other
modifications to the firearm that are not included within this rule
that would bring the firearm into compliance with State law.
In a narrow set of circumstances in which the individual cannot
remove the ``brace'' device and maintain the pistol, or make other
modifications to the firearm, then the firearm may be prohibited under
State law and must be either destroyed or disposed of in compliance
with State law. The Department notes that commenters did not appear to
submit information indicating the frequency with which such
circumstances would arise, and ATF's experience indicates that these
circumstances would be extremely limited. The Department thus believes
that the important public safety benefits of this rule, as discussed
more fully in the accompanying Regulatory Impact Analysis (``RIA''),
outweigh any interest in retaining the firearm for the few individuals
who might find themselves in such circumstances. Information regarding
the application of State law to a particular weapon would be within the
jurisdiction of the State agency responsible for the enforcement of the
State firearms laws or other State legal authority.
6. NFA Wait Times
Comments Received
Commenters raised a variety of issues related to the NFA
registration and tax requirements. Regarding the imposition of NFA
registration, many commenters expressed concern over the burden of
completing paperwork, which may necessitate submission of sensitive
personal information for property they have already lawfully purchased.
Additionally, many commenters expressed concern with the timeframe to
receive approval, which ranges from many months to even a year. Some
commenters did not think that ATF has the capability to handle the
volume of NFA applications this rule will generate. To relieve such a
burden, commenters recommended expediting the processing of
applications for the impacted firearms, with some recommending
expediting processing of any NFA applications to within 30 days. One
commenter recommended that there be a grace period to ensure that
firearms with attached ``stabilizing braces'' are not confiscated while
in the process of receiving approval from ATF.
Department Response
The Department acknowledges that this rule will likely increase NFA
registrations as individuals decide to register the weapons that they
previously treated as pistols, but which, as this rule clarifies, are
actually short-barreled rifles. These firearms were sold or otherwise
transferred to persons without complying with the tax, registration,
and transfer provisions of the NFA. The Department disagrees that, by
allowing possessors of short-barreled rifles equipped with a
``stabilizing brace'' to register their firearm, this rule creates
additional overly burdensome paperwork for individuals. ATF will be
using the Form 1, which is already used as the application to make and
register an NFA firearm. Furthermore, ATF has plans to increase and
adjust its resources to accommodate the increase in applications.
Moreover, affected parties who wish to register their NFA firearm
should use ATF's eForms system in order to comply with Federal
law.\154\ Individuals will need to create an ATF eForms account on
https://eforms.atf.gov to submit the E-Form 1 electronically. The
eForms system will have instructions and will guide the applicant
through the application process. While using the eForms system is a
convenient and easy way for persons to submit their E-Form 1
applications, the Department cannot expedite the E-Form 1 applications
received on this rule because of the need to continue processing
existing NFA applications, as well as the required National Instant
Criminal Background Check System checks that must be conducted on the
applicant to verify the individual is not prohibited
[[Page 6559]]
from possession of an NFA firearm under Federal law.\155\
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\154\ For purposes of this rule, ATF advises that affected
parties use the eForms system to lessen the administrative burden in
registering firearms affected by this rule. However, ATF will still
accept a paper submission of a Form 1 so long as it is postmarked by
May 31, 2023.
\155\ The National Instant Criminal Background Check System
(``NICS'') is managed by the Federal Bureau of Investigation. When
ATF submits a request for a NICS check, the FBI is responsible for
issuing a Proceed,'' ``Delayed,'' or ``Denied'' determination. 28
CFR 25.1, 25.6.
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The Department notes that NFA processing times continue to decline
as efficiencies and technology improve. ATF is also currently applying
additional overtime resources and will be providing an increased level
of support and effort to ensure the processing of eForm applications.
Nevertheless, due to the anticipated volume, there still may be a
significant waiting period before a person receives final approval and
registration of their short-barreled rifle in the NFRTR. However, so
long as an affected individual submits an E-Form 1 application by May
31, 2023, the Department will, in its enforcement discretion, allow
these persons to temporarily possess their firearms equipped with
``stabilizing braces'' that are unregistered short-barreled rifles
until they receive a response from ATF on their application. After the
submittal of the E-Form 1, individuals will receive a receipt; the
receipt should be maintained until the individual receives a tax stamp.
See section V.B of this preamble below.
After the 120-day period, registration of preexisting short-
barreled rifles equipped with a ``stabilizing brace'' will no longer be
permitted. Any person in possession of an affected short-barreled rifle
for which a registration has not been submitted to ATF within the
defined time period is in violation of the NFA, and ATF may take
enforcement action.
ATF will similarly allow Type 7 FFLs with an SOT to submit an E-
Form 2 to register the firearms in their possession before May 31,
2023. See section V.B-C of this preamble for further discussion on the
options for affected parties.
7. Other Priorities and Efficiencies
Comments Received
Some commenters stated that ATF should focus on other priorities
besides the current rulemaking. Several commenters opined that alcohol
and tobacco have taken far more lives than the ``rifles'' in question,
and that should ATF focus on these issues. Other commenters, while
thanking ATF and DOJ employees for their work, opined that ATF should
``stay out of [their] lives'' and focus on prosecuting actual criminals
who are committing crimes.
Department Response
The Department disagrees that it should withdraw the current
rulemaking and focus only on other enforcement priorities. The Attorney
General is responsible for both the criminal and regulatory enforcement
of the GCA and NFA as delegated to ATF. See section IV.B.1.a of this
preamble. The NFA requires that all ``firearms'' as defined by statute,
including short-barreled rifles, must be registered in the NFRTR. Due
to the misconception that any firearm equipped with a ``stabilizing
brace'' is a pistol, and due to incorrect classifications involving
these firearms in the past, a number of these firearms equipped with a
``brace'' device that are short-barreled rifles are not registered in
the NFRTR in violation of Federal law. Therefore, this rule is directly
within and a part of ATF's enforcement authority and priorities.
Further, although other matters may also fall within the scope of ATF's
authority, ``an agency has broad discretion to choose how best to
marshal its limited resources and personnel to carry out its delegated
responsibilities.'' Massachusetts v. E.P.A., 549 U.S. 497, 527 (2007).
The Department has determined in exercising this discretion that the
public safety benefits accruing from this final rule make it
appropriate to issue the final rule instead of withdrawing it to focus
on other issues.
8. Economic Comments
a. Need for Federal Regulatory Action
Comments Received
One commenter suggested that ATF publish ``only such regulations as
are required by law, are necessary to interpret the law, or are made
necessary by compelling public need'' (quotation marks omitted), and
that ATF's negative externality explanation was ``odd.'' This commenter
asserted that ATF did not clearly identify the problem that it is
trying to address with this regulation, and that there is no statute
that specifically prohibits firearms with attached ``braces.'' Finally,
this commenter stated that ATF should analyze whether the existing laws
and regulations contributed to the problem this regulation is trying to
address, and whether a statutory amendment would better achieve the
intended goal of the rule. Another commenter stated that ATF failed to
include an analysis of the cause of the problem, failed to include a
cost-benefit analysis of the proposed solution, and did not draft a
regulation that is narrowly tailored to address the relevant problem.
Department Response
The Department reiterates that publishing this rule is necessary to
ensure the public's awareness of the Department's best interpretation
of the relevant statutory provisions and to ensure that all forms of
short-barreled rifles are being regulated under the NFA and GCA,
regardless of whether they result from the firearms being configured
with typical shoulder stocks or with purported ``stabilizing braces.''
The Department agrees that there may be confusion about ATF's
statement regarding the externality of the rule; therefore, the final
regulatory analysis does not discuss externalities. For more details
regarding the need for regulation, please refer to sections IV.A.2 and
IV.B.1.c of this preamble.
The Department believes Congress intended for ATF to regulate
certain weapons under the NFA that Congress deemed unusually dangerous.
While there are no existing statutes or regulations that explicitly
regulate firearms equipped with ``stabilizing braces,'' such weapons
may nonetheless fall within the scope of the NFA and GCA. ATF is
updating its regulations to make clear that firearms equipped with an
accessory such as a ``stabilizing brace'' or other rearward attachment
with the objective design features of a firearm designed, made, and
intended to be fired from the shoulder are properly captured under the
NFA and GCA definition of ``rifle.'' Furthermore, the NFA regulates
short-barreled rifles by requiring registration of the firearm and
payment of NFA taxes. The rule will ensure that firearms equipped with
``stabilizing braces'' that are designed, made, and intended to be
fired from the shoulder and that have a barrel of less than 16 inches
will be properly classified as short-barreled rifles under the NFA or
GCA. The Department declines to analyze whether a change in statute
would better achieve the goals of this rulemaking because such as
change is beyond the Department's authority.
The Department disagrees with commenters' assertion that ATF did
not analyze the cause of the problem, did not provide a cost-benefit
analysis of the proposed solution, and did not adopt a solution
narrowly tailored to address the problem. When the NPRM was published,
ATF simultaneously provided a standalone preliminary RIA that
discusses, in detail, the costs and benefits of the rule.\156\ The rule
is
[[Page 6560]]
narrowly tailored because ATF has selected for consideration under the
final rule--after the benefit of extensive public comment--only those
factors (including objective design features, marketing materials, and
information from the general community) that indicate a weapon with an
attached ``stabilizing brace'' is designed, made, and intended to be
fired from the shoulder. Based on the careful attention given to
selecting the appropriate factors, ATF does not believe the rule will
sweep in weapons that are not in fact ``rifles'' as that term is
defined in the NFA.
---------------------------------------------------------------------------
\156\ The RIA is available on Regulations.gov at https://www.regulations.gov/docket/ATF-2021-0002/document and on ATF's
website at https://www.atf.gov/rules-and-regulations/factoring-criteria-firearms-attached-stabilizing-braces.
---------------------------------------------------------------------------
b. Population
Comments Received
Several commenters were confused by the difference in population
numbers--the 3 million estimated ``arm braces'' versus the 1.4 million
individuals affected. They stated that ATF's cited population of 1.4
million individuals in possession of ``braces'' was too low. Another
commenter suggested the cost estimate was incorrect because the
population of firearms impacted by the proposed rule was too low. Many
commenters pointed out a discrepancy regarding the number of pistol-
braced firearms projected to be impacted by the proposed rule. These
commenters additionally stated that the proposed rule used an estimated
circulation of 3 to 7 million pistol braces, while a recently published
Congressional Research Services (``CRS'') report had an estimate
suggesting there may be between 10 and 40 million braces with some
arguing that the number of braces and pistol-braced firearms would be
``upwards of 40,000,000.'' Another commenter suggested ATF's
intentional use of the lower estimate of 3 million was ``self-
serving.'' One commenter implied that, if ATF were to use the 3 to 7
million range, then the midpoint (5 million) should be the number used.
One commenter believed that ATF likely underestimated the number of
FFLs engaged in the buying and selling of ``brace'' devices, thereby
suggesting that the impact to the industry would be greater than what
was stated in the proposed rule. Finally, a commenter stated that ATF's
analysis assumed that ``every stabilizing brace in existence is covered
by the NPRM'' (emphasis omitted), and the commenter thus worried the
rule will ban all existing ``stabilizing braces.''
Department Response
The Department disagrees with the commenters regarding the
estimated population of individuals affected by this rule and the
number of ``brace'' devices and firearms with an attached ``stabilizing
brace'' currently in circulation. ATF estimates that there are 3
million ``stabilizing braces'' and firearms with an attached
``stabilizing brace'' currently in circulation. While ATF estimated in
the NPRM that the number of ``brace'' devices is between 3 million to 7
million, ATF anticipates that the more accurate figure is closer to 3
million. This estimate is based on anecdotal commentary from the
manufacturers, information gleaned from ATF field offices throughout
the United States, and subject matter experts' conclusion that--based
on the number of pistols manufactured during the same time period and
the popularity of the ``brace'' devices over the years--manufacturers
may have inflated their sales estimates in recent years. In particular,
``stabilizing braces'' have only been on the market since 2012 and
became more popular only in the last few years, so there has not been
enough time for as many of them to be sold as reported in some
estimates.
The Department disagrees that there is a 1:1 ratio between the
number of individuals affected and the number of ``stabilizing braces''
or firearms equipped with a ``stabilizing brace'' in circulation. The
Pew Research Center reports that, of people who own firearms, two-
thirds own multiple firearms; and, as evidenced by the number of bump-
stock-type devices turned in by each individual after a previous ATF
rulemaking, individuals can and are likely to purchase more than one
firearm or, in this case, more than one ``stabilizing brace'' or
firearm with an attached ``stabilizing brace.'' \157\ After publication
of the Bump-Stock-Type Devices final rule in December 2018,\158\
individual owners turned in between 1 and 63 bump-stock-type devices.
Overall, ATF found that people turned in to ATF an average of 2 bump
stocks. Therefore, the number of individuals affected by this rule is
likely lower than the number of ``stabilizing braces'' or firearms
equipped with a ``stabilizing brace'' currently in circulation.
---------------------------------------------------------------------------
\157\ The Demographics of Gun Ownership, Pew Research Center
(June 22, 2017), https://www.pewresearch.org/social-trends/2017/06/22/the-demographics-of-gun-ownership/.
\158\ 83 FR at 66514.
---------------------------------------------------------------------------
It should be noted that the original maker of the ``stabilizing
brace'' marketed it in 2012 and 2013 to assist persons with
disabilities or limited mobility to shoot a heavy pistol with a single
hand. The demand and production for ``stabilizing braces'' did not
appear to take off until 2017, when numerous other models were produced
that were marketed to shoulder fire a firearm and several manufacturers
sold firearms equipped with a purported ``stabilizing brace.'' This
relatively recent rise in popularity suggests that ``brace'' devices
and firearms equipped with a ``stabilizing brace'' have not been around
long enough to warrant larger figures, as discussed further in this
section below.
ATF is aware that the CRS report provided higher numbers of
``stabilizing braces,'' but it also provided no basis for its
unofficial estimate.\159\ To determine whether this estimate was
suitable for purposes of ATF's RIA, ATF compared CRS's figures against
those provided in the report on Firearms Commerce in the United States:
Annual Statistical Update 2021.\160\ This report provides an estimate
of the number of firearms (including pistols, revolvers, rifles,
shotguns, and miscellaneous firearms) manufactured in the United
States, as reported by manufacturers. According to the report, ATF
estimates that a total of 65.1 million firearms, with just under 27
million pistols, were manufactured in the United States between 2013
and 2019.\161\ Although the most recent report is not yet final, ATF's
estimates that 12 million firearms were manufactured in 2020.\162\
Therefore, ATF now estimates that, between 2013 to 2020, a total of
77.1 million firearms, of which 32.4 million pistols, were manufactured
in the United States.
---------------------------------------------------------------------------
\159\ William J. Krouse, Congressional Research Service,
Handguns, Stabilizing Braces, and Related Components 2 (updated Apr.
19, 2021), https://crsreports.congress.gov/product/pdf/IF/IF11763.
\160\ ATF, Firearms Commerce in the United States: Annual
Statistical Update 2021, https://www.atf.gov/firearms/docs/report/2021-firearms-commerce-report/download.
\161\ See id. at 2.
\162\ This estimate comes from ATF's OSII.
---------------------------------------------------------------------------
If there was a population of 10 to 40 million ``stabilizing
braces,'' as suggested by CRS, this range would be too high. Using the
high end of the range would mean there are at least as many ``brace''
devices or firearms with an attached ``brace'' device as there were
pistols manufactured in the U.S. between 2013 to 2020 (i.e., 32.4
million pistols). And even at the low end of the CRS estimate, it would
mean nearly a third of the pistols manufactured between 2013 to 2020
are equipped with a ``stabilizing brace.'' Because ``stabilizing
braces'' are only used on a subset of pistols, not on all pistols, and
[[Page 6561]]
because not all pistols manufactured are pistols equipped with a
``stabilizing brace'' or are the type of pistol for which a person
would attach a ``stabilizing brace,'' ATF's subject matter experts
concluded that using the CRS estimate was not appropriate for this
analysis. Further, anecdotal commentary from industry that ATF received
as it was preparing the preliminary RIA for the NPRM also suggested to
ATF that the CRS estimate is much too high. Therefore, ATF does not
adopt the CRS figures.
ATF is also choosing not to use the mid-point estimate of 5 million
as suggested by Sig Sauer. Based on the historical number of pistols
produced, an estimate of 5 million would suggest that there was just
under one firearm with an attached ``stabilizing brace'' produced for
every six pistols manufactured (or approximately 16 percent of all
pistols). Additionally, based on information gleaned from field offices
throughout ATF, only a subset of FFLs may carry ``braces'' or firearms
with an attached ``brace,'' and of those that do carry these items,
they carry in their inventory only an average of seven ``braces'' or
firearms with a ``brace'' device.\163\ ATF's survey, as described in
footnote 163, suggests that a ratio of one firearm with a ``stabilizing
brace'' produced for every six pistols would still be too high. ATF
thus concluded that, based on its experience, an estimate of 5 million
was too high. ATF also considers that choosing to use 3 million rather
than 5 million is reasonable because ``stabilizing braces'' did not
become more popular until recent years, and hence manufacturers likely
did not have sufficient time to produce numbers in the range of the
higher estimates suggested by commenters or CRS and as discussed in the
paragraphs above.
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\163\ Based on an informal survey of ATF's 25 field divisions,
11 of the field divisions provided an estimated number of FFLs
dealing in firearms with an attached ``stabilizing brace,'' along
with an estimated number of affected firearms per FFL. Based on the
responses, ATF estimated that approximately 10,420 FFLs from the 11
field divisions deal in firearms with attached ``brace'' devices
and, of these FFLs, they may have carried between 1 to 52 firearms
with an attached ``stabilizing brace,'' with the majority of FFLs
having under 20 such firearms in their inventory. Therefore, for the
purposes of the final RIA, ATF used the NPRM estimate of 25 percent
of FFLs dealing in firearms with an attached ``stabilizing brace''
and used the survey average of 7 firearms for inventory, which is
higher than the 3 used in the NPRM.
---------------------------------------------------------------------------
ATF agrees that it may have not accounted for all ``stabilizing
braces'' being used by persons with disabilities; however, ATF
disagrees that this oversight indicates that the rule prohibits any
``stabilizing braces,'' including those used by persons with
disabilities. For purposes of the final RIA analysis, ATF incorporates
this public comment and estimates that a portion of the existing
``stabilizing braces,'' including some that may have been purchased by
persons with disabilities, will not, when attached to a firearm, result
in a weapon designed and intended to be fired from the shoulder. That
portion of existing ``braces'' will not be affected by the rule.
Under the statutory provisions, companies may still produce
``stabilizing braces,'' and individuals may continue to possess and use
them to assist with one-handed shooting. In publishing the NPRM and
this rule, ATF made every effort to make clear that neither the rule
nor the statutes prevent persons with disabilities from possessing a
``stabilizing brace'' that aids in stabilizing the arm to shoot a
pistol with one hand. The rule only articulates--based on the best
interpretation of the relevant statutes--how to determine which of
those firearms configured with a ``stabilizing brace'' fall within the
definition of ``rifle.'' Rifles with barrel lengths of less than 16
inches are short-barreled rifles subject to NFA registration and
taxation requirements, but they are not illegal to possess so long as
those requirements are followed.
c. RIA Scenarios 1 and 2: Turn in Firearm to ATF or Destroy Whole
Firearm
Comments Received
Several commenters suggested that the number of bump-stock-type
devices that were turned into ATF after issuance of the bump-stock
regulation demonstrates the expected level of compliance for this final
rule regarding ``braces.'' These commenters contended that, because the
number of bump stocks turned in to ATF was low, a regulation is an
ineffective means of removing devices from the market. One commenter
echoed the ATF's subject matter experts' opinion that this scenario
(i.e., turning in or destroying the firearm) was the least likely to
occur upon promulgation of the final rule. Several commenters suggested
that the cost associated with turning in a firearm with an attached
``stabilizing brace'' will be $200 for the brace itself and $1,000 to
$2,500 for the firearm. The commenter also suggested that a small
percentage of the population (five percent) may opt to turn in the
whole firearm or destroy the firearm.
Department Response
The Department disagrees that the number of bump-stock-type devices
that were turned in to ATF demonstrates the level of compliance
expected for a given rule. Under the Bump-Stock-Type Devices rule, a
person could comply in ways other than turning in bump stock-type
devices to ATF. ATF did not anticipate that many people would turn in
bump stock-type devices to ATF, and, in fact, many did not.
Neither the relevant statutes nor this rule suggests that
``stabilizing brace'' devices themselves are considered a firearm. And,
therefore, they do not need to be turned in to ATF. One means of
complying with the relevant statutory requirements is to turn in the
whole firearm that is equipped with a ``stabilizing brace.'' Although
ATF finds this to be an unlikely scenario, ATF concurred with the
commenter that ATF should account for a small percentage of persons who
opt to turn in or destroy the whole firearm because some ``stabilizing
braces'' may be attached to a firearm in such a way that removal may
not be feasible. However, ATF did not incorporate the percentage as
suggested by the commenter because the percentages were based on the
assumption that ATF would charge a $200 NFA tax on all items currently
in circulation. Because ATF will forbear the NFA tax on all individuals
and most FFLs \164\ in possession of short-barreled rifles equipped
with a ``stabilizing brace'' so long as they submit an E-Form 1 within
120 days from this rule's publication date, ATF estimated percentages
for these scenarios by using: (1) the percentage from the bump-stock
turn in, and (2) the percentage of individuals or FFLs residing or
located in States that do not allow for personal ownership of NFA
weapons. For more details on the percentage attributed to destroying or
turning in firearms to ATF, please refer to the standalone final RIA on
the docket.
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\164\ Type 7 FFL SOTs in possession of short-barreled rifles
equipped with a ``stabilizing brace'' at the time this rule is
published may register the firearms in their possession through an
E-Form 2 (rather than an E-Form 1). Because registration via the E-
Form 2 does not require the separate payment of a making tax, there
is no tax for ATF to ``forbear'' from collecting for these weapons.
---------------------------------------------------------------------------
d. RIA Scenario 3: Convert Firearm Into Long-Barreled Rifle
Comments Received
Multiple commenters proffered various cost estimates for Scenario 3
regarding converting a firearm into a long-barreled rifle. A commenter
stated that the proposed rule failed to consider
[[Page 6562]]
any labor or expense involved in rebuilding or retrofitting firearms
with longer barrels or obtaining necessary parts to do so, specifically
in reference to those individuals without gunsmithing knowledge.
Another commenter similarly stated the analysis of converting a firearm
into a long-barreled rifle was incorrect because it did not account for
gunsmithing costs and because installing a longer barrel onto an AR-
patterned firearm requires special tools. The commenter elaborated that
not all pistols with a ``stabilizing brace'' are AR patterns, and, for
those, additional parts and gunsmithing costs may be involved. One
commenter contended that the cost estimates in the RIA failed to
include the labor expense for gunsmith services and suggested an
estimate of $750 per firearm.
One commenter provided an estimated percentage of the population
that may fall under this scenario (10 percent) and further suggested
that the cost to convert a pistol into a rifle will be $800. When
converting a firearm with an attached ``stabilizing brace'' to a long-
barreled rifle under the GCA, one commenter stated, ATF only considered
the cost of a new barrel and handguard; that commenter suggested that
ATF also should include the cost to re-barrel the firearm, which they
estimated to cost anywhere from $50 to $250. This commenter also
suggested that ATF consider the lost value of the existing barrel and
handguard. By including all these cost elements, this same commenter
suggested that the actual cost to convert a firearm into a long-
barreled rifle is more in the range of $870 to $1070. One commenter
estimated that it would cost about $600 to convert a firearm into a
long rifle. Another commenter estimated the cost to re-barrel a firearm
to be in the range of $55 to $350 (plus shipping cost to a gunsmith at
$25 each way). Lastly, a commenter suggested that some barrels and
handguards could cost as much as $1,000 to replace.
One commenter reflected on the likelihood of the various compliance
scenarios and suggested that converting a firearm with an attached
``stabilizing brace'' to a rifle may be more likely to occur if the
overall cost is cheaper than the NFA tax. This commenter also stated
that the conversion cost provided by ATF was too low. On a separate
note, one commenter stated that, while ATF complied with all the
necessary economic requirements and determinations, the cost evaluation
and impacts of the proposal were a secondary consideration behind ATF's
apparent policy aims.
Department Response
With respect to comments asserting that the costs evaluation and
impacts of the rule were secondary, the Department disagrees that the
regulatory analysis did not account for the cost to individuals to
remove firearms from the purview of the NFA. The Department considered
the cost to purchase a new barrel and handrails based on the market
prices of the items. While the cost analysis did not consider the labor
and expense to alter firearms, this is not an indication that the cost
evaluation or impacts of the proposal was a secondary consideration.
The Department agrees that a labor cost to convert the firearm into
a long-barreled rifle was not included separately; however, ATF
included this cost under the market prices for gunsmithing services,
which were incorporated in the final RIA as suggested by public
commenters for labor costs associated with converting the firearm into
a long-barreled rifle. While the Department concurs that there may be a
range in costs for the barrel and handguards, the Department kept the
prices the same in the final RIA, as the overall cost is between the
range of the low and high costs as suggested by the commenters.
e. RIA Scenario 4: Apply To Register Under NFA
Comments Received
Many commenters claimed that the rule would be a huge financial
stress on Americans, and that many of those impacted by the financial
burden would have difficulty individually affording the payment of a
$200 tax to keep possession of a firearm that was already possessed and
fully legal at the time of purchase. One commenter estimated that 10
percent of the population may fall under this scenario, as they stated
that the demand for short-barreled rifles is smaller than for firearms
with an attached ``stabilizing brace.'' Furthermore, this commenter
suggested that the administrative cost would be $75 in addition to the
$200 registration cost.
Some commenters suggested that there are additional costs, beyond
the $200 NFA tax, that must be included when establishing the cost to
register a firearm with an attached stabilizing brace as an NFA weapon.
At least one commenter in the industry also argued that, even if ATF
waived the NFA tax due upon registration, the owner would still have
costs for the time and effort required to register. One commenter
suggested that there are financial implications, which ATF did not take
into consideration, for owners who will need to modify their firearm to
be compliant with 18 U.S.C. 922(r) prior to the NFA registration.
Several commenters suggested that ATF did not include the cost to mark
the registered firearms. One commenter suggested that it would cost an
additional $30 to $50 to disassemble and re-assemble a firearm in order
to mark the firearm. One commenter contended that ATF did not include
the cost of getting fingerprinted or the travel costs to engrave the
firearm or obtain fingerprints; the individual suggested that the
minimum cost to register a firearm under the NFA would be approximately
$326 per firearm. One commenter stated that considering the NFA tax a
transfer payment, and not a societal cost, was ``specious.''
Another commenter provided a counter estimate that this scenario
would provide a payment to ATF of over $600 million, ``nearly 50% of
ATF annual operating budget.'' Likewise, a commenter stated that, if
ATF's estimated figure of 3 million pistol-braced firearms is accurate,
then the expected financial burden on the taxpayers amounts to
$600,000,000 at a minimum for each firearm with an attached
``stabilizing brace'' to be registered. One commenter suggested that
this scenario would be as likely as Scenario 3 (Convert a firearm with
attached ``stabilizing brace'' into a long-barreled rifle). Another
commenter noted that, for those individuals who decide to submit an
application to register a short-barreled rifle under the NFA, the NPRM
estimated that the proposed rule would add a burden of an additional
3,020,148 hours in addition to the ``existing annual hourly burden
[which] is 102,808 hours.'' 86 FR at 30849. The commenter also stated
that ``a standard work year is 2,000 hours, meaning that ATF seeks to
impose a paperwork burden on the American public equivalent to
approximately 1,500 years of productivity or the entire working lives
of 38 persons. This would be an unwarranted and unjustified
infringement of time and effort for citizens to exercise a fundamental
right.'' (Emphases omitted.)
Department Response
The Department disagrees that all the firearms at issue in this
rulemaking were legal at the time of purchase and lawfully possessed.
ATF became aware that many short-barreled rifles equipped with a
``stabilizing brace'' had been sold by various manufacturers as pistols
without the submission or receipt of a voluntary classification request
from ATF or potentially relying on other
[[Page 6563]]
classification letters for other firearms equipped with ``stabilizing
braces.'' Further, ATF notes that many of these ``brace'' devices alone
may have been marketed and sold as a way to add an attachment so that
the individual could create a firearm with the ``stabilizing brace''
that is designed and intended to fire from the shoulder. As short-
barreled rifles, these firearms equipped with a ``stabilizing brace''
must be registered, they must receive transfer or making approval, and
they incur a $200 transfer or making tax, which is imposed on the
transferor or maker, respectively. 26 U.S.C. 5811, 5821. These
unregistered short-barreled rifles have been transferred in violation
of the NFA, and further possession of any such unregistered firearm
continues to be a violation of the NFA.
Although the Department disagrees that these unregistered firearms
were legal at the time of purchase and lawfully possessed, the
Department understands that consumers and dealers believed them not to
be subject to the NFA when purchasing and selling them. In the NPRM,
the Department had proposed that individuals and most non-SOT FFLs
(e.g., Type 1 dealers and Type 7 manufacturers) register and pay the
$200 making tax. However, the Department concurs with many of the
public comments regarding forbearance of the $200 NFA making tax for
firearms equipped with a ``stabilizing brace'' that are short-barreled
rifles currently in their possession. Therefore, the Department is not
collecting the NFA making taxes for weapons that are affected by this
rule and currently in the possession of individuals, Type 1 FFL
dealers, Type 7 FFL manufacturers without an SOT,\165\ and Type 8 FFL
importers provided they submit an E-Form 1 application to register the
firearm by May 31, 2023. Likewise, Type 7 FFL manufacturers with an SOT
will need to file a E-Form 2 for the firearms with an attached
``stabilizing brace'' that fall under the purview of the NFA that are
currently in their possession by May 31, 2023 in order to comply with
Federal law. Type 7 FFLs that do not currently have a Class 2
Manufacturer SOT but that have been engaged in the business and choose
to continue to be engaged in the business of manufacturing firearms
with an attached ``stabilizing brace'' that fall under the purview of
the NFA will need to obtain an SOT and also file an E-Form 2 to
register the firearms in their inventory that are subject to NFA
regulations by May 31, 2023.
---------------------------------------------------------------------------
\165\ A Type 7 FFL manufacturer without an SOT that will not
engage in the business of manufacturing firearms with an attached
``stabilizing brace'' that fall under the purview of the NFA after
the publication of this rule may file an E-Form 1 application.
---------------------------------------------------------------------------
Because many commenters requested a ``tax waiver'' as their
preferred method (second to grandfathering), and because the Department
is no longer requiring that the $200 NFA making tax be paid upon
registration during the 120-day window for compliance, the Department
estimates that a significantly higher number of individuals than
originally anticipated will opt to register their short-barreled rifle
equipped with a ``stabilizing brace.'' Due to the decision to forbear
tax, as discussed above, the Department assumes a different percentage
of the population will comply with this scenario (and other scenarios),
as suggested by one commenter. Therefore, the Department disagrees with
commenters that suggested all individuals will register under the NFA.
There may be individuals who still opt for the other scenarios such as
disposal or converting their firearm into a long-barreled rifle. For
instance, there may be individuals who live in States that do not allow
for the ownership of NFA weapons; therefore, the Department still
accounts for other individuals choosing from the remaining scenarios.
The Department concurs that there are other costs associated with
completing a Form 1 under the NFA, and, accordingly, it incorporated
most of these costs under Scenario 4 (Apply to Register Under the NFA).
However, ATF is not accounting for the cost to engrave NFA markings on
the firearm, nor is ATF considering the cost to disassemble and re-
assemble a firearm in order to mark the firearm. For purposes of NFA
registration, affected firearms that include the markings required by
the GCA can be registered with the original marking if the firearm has
already been marked in accordance with 27 CFR 478.92 and 479.102. If
the affected firearm is a ``[p]rivately made firearm'' (``PMF'') as
defined in 27 CFR 478.11 and 479.11 without GCA markings, the applicant
will be required to mark the firearm in accordance with section 479.102
for NFA registration.\166\ ``Stabilizing brace'' devices, however, were
originally designed for heavy pistols, and indeed most ``stabilizing
braces'' are attached to heavy pistols that are variants of rifles. ATF
thus estimates that this rule will affect very few PMFs, so ATF did not
include the cost to mark any PMFs in its analysis. Nevertheless, the
cost to retroactively serialize a PMF to comply with NFA marking
requirements is approximately $30 to $65 per PMF.\167\ Given the small
number of PMFs affected by this rule and given the small cost to mark
any PMFs that are affected by this rule, ATF does not believe that
including any estimate for this cost would significantly affect its
final RIA.
---------------------------------------------------------------------------
\166\ See 87 FR at 24664-66.
\167\ Tar Heel State Firearms, SBR/SBS Laser Engraving, https://tarheelstatefirearms.com/store/index.php?route=product/product&product_id=232 (last visited Dec. 12, 2022); Capitol Armory,
NFA LaserEngraving, https://www.capitolarmory.com/sbr-sbs-nfa-firearm-laser-engraving-form1.html (last visited Dec. 12, 2022);
Accubeam, NFA Trust & Manufacturing Engraving, https://www.accubeam.com/services/nfa-trust-gun-engraving/ (last visited
Dec. 12, 2022); Veritas Machining LLC, SBS and SBR Laser Engraving,
https://www.veritasmachiningllc.com/nfaweapons (last visited Dec.
12, 2022).
---------------------------------------------------------------------------
While the Department agrees with the commenter that registering
firearms with attached ``stabilizing braces'' under the NFA will impose
a time burden, the Department disagrees that it is an unwarranted and
unjustified burden. This rule does not change the process to register
an NFA firearm or the typical time required to complete each
registration. Although more individuals will need to complete the
process, the Department has concluded that the public safety benefits
of this rule justify the burden on these individuals.
The Department disagrees with the assertion that the treatment of
the NFA tax as a transfer payment, as opposed to a societal cost, is
``specious.'' According to the Office of Management and Budget
(``OMB'') Circular A-4, ``transfer payments'' are payments that are
distributed from one group to another group within the U.S. and do
``not affect total resources available to society.'' \168\ In this
case, transfer payments are distributed from the general public to the
U.S. Government. These distributed resources essentially continue to
circulate among the total resources available to the U.S. society.
---------------------------------------------------------------------------
\168\ OMB, Circular A-4 38 (Sept. 17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf.
---------------------------------------------------------------------------
The Department disagrees that this rule will amount to $600 million
in payments to ATF because the Department is providing tax forbearance;
therefore, the commenter's concern about payments to the government is
moot. The Department will not seek retroactive collection of taxes from
individuals or FFLs for the NFA making and/or transfer taxes owed as a
result of not having timely submitted a Form 1 or Form 2; \169\
[[Page 6564]]
however, even if the Department were to collect taxes retroactively,
any payment of money for NFA taxes is directly deposited in the General
Fund of the United States Treasury Department and is not retained by
the Department or ATF. Congress appropriates ATF's budget annually.
---------------------------------------------------------------------------
\169\ Type 7 FFL SOTs may manufacture NFA firearms without
payment of the making tax pursuant to 27 CFR 479.68 provided that
the firearm is reported and registered as required by Part 479.
Section 479.103 generally requires a Type 7 FFL SOT to register
firearms manufactured on an ATF Form 2 by the close of the next
business day after the manufacture. Firearms of the sort discussed
in this rule were manufactured and subsequently transferred by Type
7 FFL SOTs without the timely submission of a Form 2 by the close of
the next business day after manufacture.
---------------------------------------------------------------------------
The Department disagrees with the commenter who suggested that
there will be financial implications resulting from the removal and
replacement of imported parts for owners who imported pistols and added
a ``stabilizing brace.'' The commenter incorrectly interpreted 18
U.S.C. 922(r) as requiring the removal and replacement of imported
parts to comply with section 922(r). Section 922(r) generally makes it
unlawful ``for any person to assemble from imported parts any
semiautomatic rifle,'' and 27 CFR 478.39 provides that a person may not
assemble a semiautomatic rifle using more than 10 of the imported parts
listed in the relevant paragraphs of the regulation. The criminal
violation under 18 U.S.C. 922(r) is for the ``assembl[y]'' of the semi-
automatic rifle; therefore, modification of this kind of firearm
through the removal of the relevant parts would not cure the 922(r)
violation because the ``assembl[y]'' has already occurred.
Nevertheless, for the purposes of the costs outlined in the standalone
RIA, ATF assumes this group may use another scenario, such as
destroying the firearm or turning it in to ATF, by using the population
derived from bump-stock-type devices as a proxy.
f. RIA Scenario 5: Cost To Dispose of ``Stabilizing Braces''
Comments Received
One commenter suggested that simply disposing of the ``stabilizing
brace'' in this scenario would be very likely. However, the commenter
suggested that individuals would likely separate the ``stabilizing
brace'' from the firearm without permanently disposing of the
``stabilizing brace'' altogether, and then reattach the ``stabilizing
brace'' onto a firearm when convenient. This same commenter suggested
that a scenario in which individuals destroy the entire firearm would
be unlikely. One commenter suggested that 70 percent of the population
would fall under this scenario and that the cost for this scenario
should be $250 for the value of the ``stabilizing brace'' and $250 in
diminished value of the firearm, for a total of $500 per firearm. One
commenter suggested that ATF should estimate loss of future
``stabilizing braces'' on current trends rather than historical sales,
and that the future trend of sales for firearms with attached
``stabilizing braces'' is higher than ATF estimated. Several commenters
suggested that the disposal cost for this scenario ranges between $200
for only the ``stabilizing brace'' and $1000 for the firearm with the
attached ``stabilizing brace.'' One commenter suggested that ATF
include the cost of replacing the buffer tube with a pistol tube.
Department Response
The Department disagrees that there should be an additional
diminishment in the value of the firearm due to the loss of the
``stabilizing brace'' in the amount of $250 above the $250 value of the
``brace'' itself. This would constitute double counting the value of
the ``stabilizing brace.'' The Department recognizes that some owners
may perceive that removal of the ``brace'' from the firearm as
diminishing their value from owning that firearm. The Department,
however, cannot reasonably estimate the diminished valuation to such
owners because those perceived valuations are subjective and vary from
owner to owner.
Because ``braces'' themselves are not regulated, the Department has
not collected information about them that allows it to precisely
calculate their popularity. Nonetheless, as explained above, the
Department estimates that between 3 and 7 million ``stabilizing brace''
devices were manufactured over the course of eight years, and the
Department will continue to use historical data as a means to project
future trends. There is not enough information to support what
``current trends'' are for the demand of purported ``stabilizing
braces.'' Based on public comments, the Department concurs that there
may be some individuals who opt to turn in or destroy the whole
firearm; therefore, the Department uses the cost of the whole firearm
under those scenarios.
With respect to the cost of replacing the buffer tube with a pistol
tube, the rule does not require such a replacement. The Department also
finds it unlikely that these individuals will purchase a pistol tube;
therefore, the cost for a pistol tube was not included in the final
analysis.
g. Other Costs
Comments Received
Many commenters believed the initial RIA underestimated the costs,
specifically the annualized costs of the proposed rule. One commenter
suggested that the cost for this rule ranges from $600 million to $40
billion, and that ``more than 20,000 [special] agents would be needed''
to enforce this rule. One commenter suggested that the annualized cost
cited in the NPRM does not account for the total cost of the rule over
the course of the next 10 years. The commenter went on to contend that
this rule would cost well over $100 million, and that ATF should
refrain from finalizing the rule until ATF can publish an accurate cost
analysis. One commenter estimated that the total cost of the rule would
be closer to $465 million. Many commenters suggested that ATF's cost
analysis was inaccurate, calculating the cost of the rule to be the
total number of ``stabilizing braces'' multiplied by each scenario
rather than breaking out the total population among the different
scenarios. One commenter suggested that the total cost of the rule is
greater than the estimated annualized cost of $250 million. Many
commenters stated the proposed rule would cost the gun industry and
firearm owners tens, if not hundreds, of millions of dollars in
conversions, taxes, and destruction of personal property.
At least one commenter stated that ATF's RIA skirted the issue of
individuals and entities losing money on their ``stabilizing brace''
investments. According to the commenter, this rulemaking results in
those law-abiding Americans forfeiting their investment in
``stabilizing braces'' and firearms sold with ``stabilizing braces''
installed at the factory. At a minimum, the commenter stated, the rule
results in the loss of $708 million to law abiding Americans (i.e.,
$236 per ``stabilizing brace'' * 3 million sold). Another commenter,
assuming the CRS's population of ``stabilizing braces'' is accurate,
stated that the NPRM would destroy economic value and waste American
productivity and that the proposed rule's estimated economic impact was
too low. Similarly, several commenters suggested that this rule will
destroy the entire firearms industry and estimated that this rule will
directly affect 150,000 employees and indirectly affect 188,000
individuals, having a total economic impact of $63.4 billion.
One commenter reasoned that, using an estimated number of 5 million
stabilizing braces currently in circulation, the estimated cost for
this rule was $2.8 billion and this cost did
[[Page 6565]]
not account for increased government costs such as increased
classifications, NFA registrations, and enforcement actions that the
commenter anticipated ATF would need to incur upon implementation of
this final rule. One commenter stated that this rule ``attempts to
seize[,] waste, and obliterate an unfathomable percentage of the total
annual US firearms commerce.'' Similarly, a few commenters suggested
that government or enforcement costs were not taken into consideration
in the cost-benefit analysis, such as the cost of additional ``ATF
personnel, equipment, facilities, data infrastructure, prosecution, and
incarceration fees.'' One commenter suggested that this rule will cost
$2.65 trillion to imprison all owners of firearms with attached
``stabilizing braces.''
Another commenter suggested that ATF should have to include the
cost for lawsuits challenging the rule. One commenter suggested that
this rule would affect taxes that are used to restore and conserve
land, along with State and local taxes. Another commenter also asserted
that the cost estimated for the rule was fundamentally flawed because
the alternatives discussed provided for someone who presently owns a
firearm with a ``stabilizing brace'' caused a cost to the private
sector.
Other commenters argued that the financial burden would
disproportionally impact lower income persons, including Blacks and
Hispanics. Additionally, one commenter said that the proposed rule is
``classist and racist'' because it makes firearm ownership more
expensive through additional taxation. This same commenter further
stated the rule was ``blatantly ableist, and in bad faith based on
antiquated assumptions.'' And lastly, one commenter suggested that
implementing this rule will reduce the ability to hunt feral hogs and
claimed that feral hogs cause approximately $52 million in damages
every year.
Department Response
The Department partially concurs with the commenters regarding the
overall costs that may be incurred following the rule but disagrees
with other aspects of the comments. Many of the commenters conflated
the annualized cost of the rule with the 10-year undiscounted cost of
the rule. In the NPRM, the Department estimated that the 10-year
undiscounted cost would be $1.1 billion, which is higher than the
majority of the estimates suggested by the commenters, but not as high
as $40 billion as suggested by one commenter. While one commenter
requested that precise numbers be presented prior to the publication of
the rule, the Department is unable to provide numbers to the level of
precision requested by the commenter. The Department now provides
revised estimates for the final RIA based on information provided by
public comments; however, as the Department consistently states, these
are estimates and these numbers cannot be determined with as much
precision as some commenters would like.
The Department partially disagrees with the estimate that ``more
than 20,000 [special] agents would be needed.'' ATF does not anticipate
needing to add or otherwise require additional law enforcement
personnel or taking criminal enforcement actions against persons who
currently possess previously made weapons with attached ``stabilizing
braces'' during the 120-day period to come into compliance with Federal
law. Nonetheless, ATF concurs that there may be additional costs to
implement Federal law as clarified by this rule because ATF anticipates
adding staff to assist with the processing of NFA applications. Thus,
ATF added those additional administrative costs into its analysis, but
no additional cost was associated with law enforcement personnel.
As for classifications, ``stabilizing brace'' companies have
submitted their items for classifications prior to this rule for new
designs, and companies will remain free to do so after the
implementation of this rule. This rule will not change the
classification process, so the costs of this process will remain the
same. ATF provides several solutions for owners of ``braces'' to come
into compliance.
The Department disagrees that this rule will ``destroy the entire
firearm industry,'' along with the commenters' estimated 150,000
employees directly affected and 188,000 indirectly affected
individuals, or that the rule will have a total economic impact of
$63.4 billion. The majority of the firearms industry does not engage in
manufacturing, selling, or purchasing ``stabilizing braces'' or
firearms with an attached ``stabilizing brace.'' Furthermore, the
firearms with attached ``stabilizing braces'' do not constitute the
entire firearms industry. Most firearms have been sold and are sold
without ``braces'' or are purchased without the intent to attach a
``brace.'' Firearms that will be affected by this rule are only a small
subset of the whole firearms industry. While this rule will have an
effect on the firearms industry, it will not adversely impact the
industry as a whole; therefore, the estimated impact on the entire
firearm industry was not considered as part of the final analysis.
Most firearms currently on the market are and will remain outside
the purview of the NFA; they should not be affected by this rule. The
rule may, however, affect a small subset of manufacturers and
retailers, and ATF has accordingly updated the Initial Regulatory
Flexibility Analysis (``IRFA'') to account for these businesses in the
Final Regulatory Flexibility Analysis (``FRFA'').
As for lawsuits challenging this rule and taxes to restore and
conserve land, along with State and local taxes, ATF does not account
for the cost of lawsuits, taxes, and land conservation because doing so
would require far too much speculation for any estimates to be useful.
In addition, ATF does not account for the tax impact of the rule
because, as described above, the firearms industry as a whole will be
largely unaffected by this rule. As a result, ATF expects the industry
will continue to make the relevant tax contributions for conservation,
as well as to State and local governments.
The Department disagrees this rule will disproportionately affect
lower income individuals or certain minorities. As discussed in section
IV.B.4.f of this preamble, the NFA tax is a rational mechanism to
control the making and transfer of dangerous and unusual firearms that
are concealable and capable of more damage than other firearms. The
rule, which remedies ATF's past misinterpretation of the relevant
statutory definitions, provides every individual--no matter their race,
gender, or disability--the opportunity to remedy violations of the NFA
and maintain possession of their firearms so long as the person is not
prohibited from firearm possession.
ATF concurs that this rule could possibly have an effect on hunting
feral hogs, but notes that this rule does not ban the purchase or use
of NFA items; rather, the rule only requires that NFA registration and
taxation requirements be satisfied for items that fall within the
rule's scope. Under this rule, short-barreled rifles continue to be
regulated by the NFA, but so long as an individual complies with the
NFA's requirements, those rifles would remain available for use in
feral hog hunting. To the extent that complying with the NFA's
requirements would impose a financial burden on individuals engaged in
such hunting, the Department believes the public safety benefits of the
rule outweigh that burden.
[[Page 6566]]
h. Benefits
Comments Received
Many commenters questioned ATF's assertion that this rule will
improve public safety and believed that there is no evidence to
demonstrate that Americans will be safer if this rule goes into effect.
Commenters asserted that criminals are not going to care about this
rule and that this rule will do nothing to prevent or mitigate actual
criminal activity. Commenters stated that ATF has arbitrarily decided
that an AR-pistol is a ``gangster type weapon,'' even though, in the
opinion of the commenters, criminals actually prefer handguns to
rifles. Another commenter stated that ATF was only speculating that the
proposal would reduce criminal use of firearms.
Many commenters claimed that such ``braces'' are rarely used in the
commission of crimes and that the rule will have no benefit to public
safety. Specifically, numerous commenters stated that the purpose of
the NFA is ``to regulate certain weapons likely to be used for criminal
purposes.'' In these commenters' opinion, there is no reason to believe
firearms with an attached ``stabilizing brace'' are likely to be used
for criminal purposes. The commenters went on to say that, since ATF
approved the first ``stabilizing brace'' in 2012, there has not been
any notable spike in homicide, violent crime, or crime involving
stabilizing braces. They argued that there is not a correlation, let
alone a causal link, between the presence of ``braced'' firearms and
higher crime rates, and there is no evidence to suggest that regulating
``braced'' firearms under the NFA will reduce crime rates. Some
commenters, like the Ohio Attorney General, acknowledged that the
Department noted examples of weapons with ``stabilizing braces'' being
used in at least two mass shootings, but many commenters considered
those two instances to be misuses of the ``stabilizing brace'' in
criminal acts. The commenters argued that, considering the millions of
``braces'' in use, such examples provide insufficient evidence to
suggest that regulating ``braced'' firearms under the NFA will reduce
crime rates. Another commenter went as far as to classify the resulting
``reduced ability for self[-]defense'' to be ``the most damaging and
life[-]threatening form of discrimination.'' Another commenter believed
that the proposed rule would destroy the value of ``braces,'' which
would lead to legal owners selling them in order to recoup their
losses, thus making them ``more readily available to criminals seeking
to make a short-barreled rifle for malicious purposes.''
Commenters questioned the idea that a ``stabilizing brace'' makes a
gun more lethal. According to a commenter, the proposed rule was based
on the proposition that adding a ``stabilizing brace'' to pistols makes
them ``especially dangerous to the community.'' Numerous commenters did
not believe that ATF had substantiated its claims that ``brace''-
equipped pistols are especially dangerous or unusual. Commenters
questioned how these firearms are more dangerous than ``other common
pistols.'' Some commenters suggested that a short-barreled rifle is not
more concealable than other firearms. Likewise, a commenter stated, ``I
don't see how a brace on a regular-sized pistol makes the gun
especially dangerous or unusual as it doesn't increase the power or
lethality of a `regular pistol.''' Another commenter argued that it is
not a fact that stabilizing braces are more effective when firing the
firearm. Or, as many commenters stated, ``even if the user shouldered
the stock pistol, it [does] not magically turn that pistol into a[n]
SBR.'' Conversely, some commenters contended that it was actually safer
or less lethal to use a ``stabilizing brace.'' Collectively, these
commenters stated that a ``stabilizing brace'' does not make the gun
``more scary'' because the brace allows a person to shoot the gun
``more safely for the shooter as well as [the] people around you.''
Department Response
The Department disagrees with commenters that the rule has no value
or that there is no benefit to the rule. The perception that the rule
serves no function to enhance public safety is directly opposed to the
purpose and intent of the NFA. Congress passed that statute for the
express purpose of regulating specific firearms, like short-barreled
rifles, which Congress determined posed a greater risk to public safety
as ``gangster-type'' weapons of an especially unusual and dangerous
nature. This rule makes clear that a firearm cannot evade
classification under the NFA if it has objective design features that
indicate (or if there are marketing materials or other information
demonstrating likely use in the general community that indicate) it is
designed, made, and intended to be fired from the shoulder and has a
barrel length of less than 16 inches. Therefore, the Department
emphasizes that the risk posed to public safety by these weapons was
identified by Congress, and this rule acts to implement the NFA. The
rule is necessary to effectuate the laws passed by Congress to address
congressional concerns for risks imposed to public safety by firearms
as defined under the NFA.
As for reducing the ability for self-defense, the Department
disagrees. There are various firearms that are available for self-
defense under the GCA and will continue to be available. Furthermore,
this rule does not ban the use of firearms with an attached
``stabilizing brace.'' Individuals can and will continue to be able to
use such firearms for personal defense. Individuals have various means
of complying with the relevant statutory requirements and will not need
to sell any firearms that they may possess. See section IV.A.2 of this
preamble for additional Departmental response regarding public safety.
i. IRFA/FRFA
Comments Received
Some commenters suggested that this rule will ``harm millions of
jobs'' and ``shut down dozens of small businesses.'' Various commenters
suggested that this rule will affect the American economy and, in
particular, all manufacturers that sell firearms with an attached
``stabilizing brace'' and FFL dealers that deal in firearms with an
attached ``stabilizing brace.'' One commenter suggested that FFL
dealers would not be able to convert firearms with attached an
``stabilizing brace'' without obtaining an SOT and would have to
otherwise dispose of their inventory of firearms with attached
``stabilizing braces.'' Another commenter suggested that this would
increase the burden on small businesses by adding additional tracking
and reporting requirements.
Department Response
While ATF agrees that the rule will affect a number of small
businesses and a small number of jobs, ATF disagrees with the magnitude
of impact suggested by some commenters. There are only a few companies
that manufacture ``stabilizing braces,'' and for most of them,
``braces'' or firearms with an attached ``stabilizing brace'' are not
their primary source of revenue. In the IRFA, ATF calculated an
estimated impact to FFL Type 1 dealers, as well as an estimated impact
on FFL Type 7 manufacturers. For the FRFA, ATF provides a revised
impact analysis illustrating with more detail the estimated impacts to
Type 1 and Type 7 FFLs, along with manufacturers of ``stabilizing
braces.''
[[Page 6567]]
While ATF updated the population in the FRFA, it did not receive
sufficient information in the public comments as to the actual impact;
therefore, the revised analysis did not include any such additional
information.
In the IRFA, ATF estimated the number of businesses that will go
out of business. The FRFA provides a more detailed analysis on the
anticipated number of businesses that will go out of business, the
anticipated loss of revenue, and the anticipated number of jobs
affected. However, the overall effect that the rule will have on small
businesses is anticipated to be small. While the Department
acknowledges that most businesses in the firearms industry are small,
most firearms with attached ``stabilizing braces'' are a subset of the
inventory of firearms sold by these businesses. Therefore, this rule's
clarification of Federal law will affect, at most, a small portion of
the businesses' inventories, with the extent of the impact depending on
how they choose to comply after publication of this rule. It is
unlikely that all businesses that deal in firearms with attached
``stabilizing braces'' will shut down as suggested by commenters.
As for additional tracking and reporting requirements, ATF has
already accounted for the additional paperwork associated with Form 1
and Form 2 applications for NFA items. There may be additional
paperwork should Type 7 FFL manufacturers opt to obtain an SOT, but
doing so is not required, and, due to ATF's decision to forbear taxes
as discussed in this preamble, it is deemed unlikely that FFLs will
apply for an SOT.\170\ No additional paperwork was required.
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\170\ In the absence of the forbearance, some Type 7 FFLs may
have found it more economical to pay the costs required to become an
SOT holder than to pay the costs to register each of the weapons
affected by this rule that they have in their inventory. Because ATF
is no longer requiring payment of the making tax for weapons held in
Type 7 FFLs' current inventory, ATF expects that becoming an SOT
will no longer be a more economical option.
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j. Other Executive Orders
Comments Received
At least one commenter objected to ATF's determination under
Executive Order 13132 (Federalism) that the rule will not have
substantial direct effects on the States, the relationship between the
Federal Government and the States, or the distribution of power and
responsibilities among the various levels of government. This commenter
contended that if the rule costs more than $100 million, the rule
should be null and void.
Department Response
The Department concurs with the commenter that this rule will have
costs more than $100 million in any given year but disagrees that the
rule implicates Executive Order 13132. This rule will not have a
substantial direct effect on the States, the relationship between the
Federal Government and the States, or the distribution of power and
responsibilities among the various levels of government. Although some
State laws incorporate Federal law for purposes of banning or otherwise
regulating short-barreled rifles, this rule does not purport to preempt
any State laws, nor does it require any State to change its laws.
Should States or political subdivisions of the States (for example,
local police departments) possess weapons with ``stabilizing braces''
that constitute unregistered short-barreled rifles, these firearms must
be registered in the NFRTR. ATF estimates, however, that this rule will
not affect many States or political subdivisions, so ATF did not
include in the FRFA the cost of registering such firearms under the
NFRTR by State or local governments. In addition, ATF notes that it may
take 30 minutes to complete an Application for Registration of Firearms
Acquired by Certain Governmental Entities (``Form 10''), with a loaded
wage rate of $49.67, making the per application burden
$25.171 172 173 This small cost confirms that the rule will
not have a substantial direct effect on States or localities. Finally,
there is no dollar threshold under Executive Order 13132, nor is there
a threshold that makes a rule ``null and void.''
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\171\ Average wage rate for Police and Sherriff's Patrol
Officers is $34.02. BLS, Occupational Employment and Wage
Statistics, (May 2021), https://www.bls.gov/oes/2021/may/oes333051.htm.
\172\ ATF uses a loaded wage rate to account for fringe benefits
such as insurance. The load rate used for this rule is 1.416. This
figure comes from the following calculation: (BLS Series ID
CMU2010000000000D,CMU2010000000000P (Private Industry Compensation =
$37.15))/(BLS Series ID CMU2020000000000D,CMU2020000000000P (Private
Industry Wages and Salaries = $26.23)) = 1.416. See BLS, BLS Data
Finder 1.1, https://beta.bls.gov/dataQuery/find?fq=survey:[cm]&s=popularity:D (last visited Dec. 14, 2022). The
exact number may differ slightly because of fluctuations in the
compensation and wage and salary rates in the time since ATF
performed the calculations.
\173\ The Employee Cost Index of 1.031 accounts for wage
increases in 2022. BLS, Employment Cost Index March 2022 (Apr. 29,
2022), https://www.bls.gov/news.release/archives/eci_04292022.pdf.
---------------------------------------------------------------------------
9. Considerations on Options To Comply
a. No Change Alternative
Comments Received
Many commenters wanted ATF to allow weapons with ``stabilizing
braces'' to continue to be possessed and sold without compliance with
the NFA. Many commenters stated their support for the no-change
alternative and possibly grandfathering all existing stabilizing
braces. These commenters also expressed a strong aversion to
registering the firearms under the NFA, but nonetheless favored the
waiver of the $200 NFA tax, as opposed to banning these items, if such
registration was required.
Department Response
The Department acknowledges commenters' suggestion that the $200
NFA tax for the transfer or making of an NFA firearm be waived if
registration is required. For the Department's response on this, see
the discussion in section IV.B.8.e of this preamble. The Department
considered but cannot adopt the ``no change'' alternative because it
would result in the status quo--the manufacturing, making, and
possession of unregistered NFA firearms. The NFA, clarified in this
rule, regulates all firearms equipped with a ``stabilizing brace'' that
are short-barreled rifles because they have a barrel or barrels less
than 16 inches in length and have the features listed in this rule
indicating they are designed, made, and intended to be fired from the
shoulder, or because the manufacturer's direct or indirect marketing
material or use by the general community indicates they are designed,
made, and intended to be fired from the shoulder. As mentioned, the
NFA's requirements cannot be avoided merely because a firearm is
configured with a device marketed as a ``stabilizing brace.'' Thus, as
short-barreled rifles, the NFA requires these firearms to be registered
and the appropriate taxes be paid for the making and transfer of the
weapon. The Department did not need to consider classifying or banning
``stabilizing braces'' alone without an attached pistol because, under
the GCA and NFA, ATF regulates ``firearms'' as defined by those
statutes. ``Brace'' devices alone are not firearms.
b. Grandfathering in Firearms With Attached ``Stabilizing Braces''
Comments Received
Many commenters contended that firearms with attached ``stabilizing
braces'' should be grandfathered in
[[Page 6568]]
under the new rule. One commenter declared that it was a violation of
law that no grandfather clause was provided whatsoever, while another
commenter believed that the lack of any grace period or grandfathering
made it clear the rule was not intended to prevent violent crimes and
was only intended to harm law abiding Americans. Similarly, one
commenter questioned how ATF was able to reject grandfathering millions
of existing braces that were lawfully purchased by gun owners who
followed ATF guidance. Other commenters also claimed that, without a
grandfather provision, many law-abiding citizens may become liable for
prosecution. One commenter opined that owners of firearms equipped with
stabilizing braces are faced with a choice of evils: (1) permanently
removing the stabilizing brace from their firearm; (2) attaching a 16-
inch or longer barrel to their firearm; or (3) destroying their
firearm. One manufacturer took issue with ATF's ``assumption'' that
grandfathering existing firearms would be impractical because of ATF's
concerns that manufacturers could claim that newly produced rifles with
an attached ``stabilizing brace'' were grandfathered in order to evade
NFA regulation.
Department Response
The Department disagrees that it must provide individuals a
grandfather clause for currently possessed firearms equipped with
``stabilizing braces'' that are short-barreled rifles under the NFA, or
that it must compensate firearm possessors for either the firearm or
for the ``brace'' devices. For the Department's response on
compensation, refer above to section IV.B.4.c of this preamble.
The NFA requires that a rifle with a barrel or barrels less than 16
inches, i.e., a short-barreled rifle, be registered in the NFRTR. The
NFA makes it unlawful for any person ``to receive or possess a firearm
which is not registered to him in the [NFRTR].'' 26 U.S.C. 5861(d).
Further, section 5861(c) makes it unlawful for an individual to receive
or possess a firearm made in violation of the provisions of the NFA. An
individual in possession of a short-barreled rifle (such as a weapon
with a ``stabilizing brace'' that falls within the scope of the NFA)
not registered in the NFRTR would be in violation of sections 5861(c)
and 5861(d). A grandfather provision that would prospectively excuse
currently possessed NFA firearms from registration would allow
continued violations of the NFA indefinitely. Accordingly, for
possessors to continue to possess these firearms and to be able to
transfer these short-barreled rifles in the future without being in
violation of the NFA, it is necessary for possessors to register in the
NFRTR those firearms equipped with a ``stabilizing brace'' that are
short-barreled rifles. As discussed above, so long as affected persons
register their short-barreled rifles equipped with a ``stabilizing
brace'' by May 31, 2023, the Department will forbear the NFA making tax
that would have been owed and, in its enforcement discretion, will
allow these persons to temporarily possess their unregistered NFA
firearm until they receive a response from ATF on their application.
Section V.B of this preamble discusses options under the rule and
sections IV.B.9.c and V.C of this preamble discuss the Department's
decision to forbear the making tax upon registration.
The Department also cannot have a grandfather clause because
providing one would inappropriately exempt individuals from future
compliance with provisions of the NFA. The Department can, in its
enforcement discretion, permit the registration of firearms possessed
at the time of publication of this rule and forbear the NFA tax due
upon registration. In addition, the Department has determined that a
limited exercise of its discretion to allow individuals to come into
compliance with Federal law is appropriate in light of the prior
confusion regarding the scope of the NFA and its application to
firearms equipped with ``brace'' devices. However, this decision is not
a prospective exemption for individuals from the requirements of the
NFA. The Department has determined that a prospective, indefinite
exercise of its enforcement discretion (as embodied in a grandfathering
provision for current possessors) is not appropriate because current
possessors will have time to acquaint themselves with ATF's clarified
regulations and take action to comply with the statute.
c. Tax Forbearance for Registration of Short-Barreled Rifles With an
Attached ``Stabilizing Brace''
Comments Received
Commenters claimed this proposal would be the largest registration
scheme imposed by the executive branch in American history and would
force the registration or destruction of millions of privately owned
firearms. Commenters similarly suggested forgiveness of the NFA taxes
but were not optimistic of such an approach because ATF previously
rejected forgiveness of the NFA tax.
Some commenters thought that, if the tax is forgiven, more people
will comply with the rule. One commenter expressed concern that the
proposed rule required that individuals pay the $200 making tax. They
argued that the proposed rule was inconsistent with the statute because
it equated possession of firearms with the making of the firearms.
Furthermore, the commenter claimed the proposed rule failed to provide
guidance as to what constitutes the date of manufacture for firearms
that already exist and are subject to the NFA. The commenter also
claimed that the proposed rule failed to advise on whether individuals
must dispossess themselves of their firearms until their Form 1s are
approved. Another commenter stated that ``[t]o retroactively make these
braced pistols illegal without grandfathering them has the same effect
as directly levying a tax upon the citizens.'' Likewise, another
commenter expressed concern that ATF has proposed to impose the tax in
the present, regardless of when the firearm was made, and regardless of
when the firearm was transferred. One commenter took issue with ATF's
position to not forgive the tax upon registration for fear that
individuals could register all pistols in their possession as short-
barrel rifles with the intent of using other stocks or ``brace''
devices on those firearms.
Department Response
The Department disagrees with commenters that asserted the rule
would result in the largest registration in the country's history or
the destruction of millions of privately owned firearms. While numerous
firearms equipped with ``stabilizing braces'' are short-barreled rifles
based on their objective design features, the Department has provided
multiple options for affected persons, which include alternatives that
do not require registration or destruction of the firearm.
The Department agrees with the commenter who stated that requiring
an individual already in possession of a firearm to pay the making tax
is inconsistent with Federal law. As described earlier, the NFA imposes
a $200 making tax and $200 transfer on NFA firearms. See 26 U.S.C.
5811, 5821. The making tax is imposed on the person making the firearm.
26 U.S.C. 5821(b). The population of individuals who possess short-
barreled rifles equipped with a ``stabilizing brace'' includes (1)
individuals who made the firearms by adding a purported ``stabilizing
brace'' on the firearm, and
[[Page 6569]]
(2) individuals who purchased and received a firearm equipped with a
purported ``stabilizing brace'' from an FFL or another individual.
These latter persons who purchased or received the short-barreled rifle
equipped with a ``stabilizing brace'' from an FFL or another individual
are not ``makers'' who have incurred a tax liability.
Accordingly, the Department agrees with commenters and will forbear
the making tax on those individuals who did not make the firearm. In
addition, even for individuals who did ``make'' the firearm, the
Department believes it is appropriate to forbear the making tax because
of the clarification in ATF's analysis of firearms equipped with a
``stabilizing brace'' device. This forbearance will also help
ameliorate the increased administrative burdens on ATF's NFA Division,
which otherwise would be tasked with making determinations of whether
an individual is in fact a ``maker'' who should incur the making tax.
Refer to the discussion in sections IV.B.8.e. and V.B. of this preamble
on the way affected parties must register their NFA firearms to come
into compliance with Federal law and not be subject to the penalties
for being in possession of an unregistered short-barreled rifle.
The Department acknowledges that, in the NPRM's discussion of
alternatives, it did not offer to forbear the NFA tax out of concern
that individuals and entities could register all pistols in their
possession as short-barreled rifles and then attempt to use other
stocks on these firearms or with the intent of later obtaining a
``stabilizing brace.'' 86 FR at 30847. The Department still has
concerns that allowing tax-exempt registration could induce individuals
to register other firearms with the later intent of creating a short-
barreled rifle. Nevertheless, after careful consideration of the
comments, the Department has decided to forbear the making tax when
individuals and entities register their affected firearms within a
defined period of time for the reasons discussed above in section
IV.B.8.e of this preamble. The Department also notes that the ATF Form
1 requires individuals to sign under the penalty of perjury that the
description of the firearm, including the type of firearm, is true,
accurate, and complete, and that the making and possession of the
firearm described in the application would not constitute a violation
of Title 18 U.S.C., Chapter 44; Title 26, U.S.C., Chapter 53; or any
provisions of State or local law. Any false statement knowingly made on
the ATF Form 1 regarding registration pursuant to this rule is a
violation of 26 U.S.C. 5861(l). A firearm involved in a violation of
section 5861(l) may be seized, and the violation subjects the person to
possible conviction, which is punishable by a fine up to $10,000, or
imprisonment up to 10 years, or both. See 26 U.S.C. 5871, 5872.
Furthermore, a willful false statement to an agency of the Federal
government may also be a violation of 18 U.S.C. 1001, which is
punishable by a fine or imprisonment up to five years, or both. The
options for persons in possession of short-barreled rifles equipped
with a ``stabilizing brace'' device to come into compliance with the
NFA are outlined in section V.B of this preamble.
d. Other Suggested Alternatives
Comments Received
ATF received several suggestions from commenters on what other
actions could be taken apart from pursuing this rulemaking. These
included suggestions that ATF fund recalls of firearms with ``brace''
devices or efforts to replace noncompliant ``stabilizing braces'' with
compliant ones. Commenters opined that short-barreled rifles and
shotguns should be removed from the purview of the NFA. One commenter
suggested requiring prescriptions to demonstrate that an individual in
fact needs a ``stabilizing brace'' attached to their firearm. Another
commenter questioned why ATF did not consider classifying ``stabilizing
braces'' without a pistol attached.
Department Response
The Department acknowledges commenters' suggestions that ATF engage
in a buyback of firearms with an attached ``stabilizing brace'' or that
the agency require some proof that an individual demonstrate they need
a ``stabilizing brace'' before acquiring the device. The Department has
decided not to adopt such suggestions. Buying firearms with attached
``stabilizing braces'' would be costly and administratively burdensome,
and the Department has provided other options for owners of such
devices to consider instead. Requiring proof of a disability or other
``need'' for a ``stabilizing brace'' would require medical judgments
that are beyond the scope of ATF's expertise. Finally, with respect to
the suggestion that short-barreled rifles and shotguns be removed from
the scope of the NFA, doing so is not within the Department's authority
and therefore is beyond the scope of this rule.
V. Final Rule
A. Definition of ``Rifle''
The rule provides an amendment to the definition of ``rifle'' in
Sec. Sec. 478.11 and 479.11. In issuing this final rule, the
Department has revised the proposed regulatory text in the NPRM to
account for the comments received. The rule does not adopt the
Worksheet 4999 as proposed in the NPRM. The rule does, however, adopt
from the NPRM and proposed Worksheet 4999 several of the objective
design features that indicate a firearm is designed, made, and intended
to be fired from the shoulder and incorporates those features into the
definition of ``rifle.'' The final regulatory text for the definition
of ``rifle'' reflects the best interpretation of the relevant statutory
provisions. All previous ATF classifications involving ``stabilizing
brace'' attachments for firearms are superseded as of May 31, 2023. As
such, they are no longer valid or authoritative, and cannot be relied
upon. However, firearms with such attachments may be submitted to ATF
for re-classification.
This final rule's amended definition of ``rifle'' clarifies that
the term ``designed, 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 rule, indicate that the weapon is designed, made, and
intended to be fired from the shoulder. These other factors are:
(i) whether the weapon has a weight or length consistent with the
weight or length of similarly designed rifles;
(ii) whether the weapon has a length of pull, measured from the
center of the trigger to the center of the shoulder stock or other
rearward accessory, component or attachment (including an adjustable or
telescoping attachment with the ability to lock into various positions
along a buffer tube, receiver extension, or other attachment method)
that is consistent with similarly designed rifles;
(iii) whether the weapon is equipped with sights or a scope with
eye relief that require the weapon to be fired from the shoulder in
order to be used as designed;
(iv) whether the surface area that allows the weapon to be fired
from the shoulder is created by a buffer tube, receiver extension, or
any other accessory, component, or other rearward attachment that is
necessary for the cycle of operations;
[[Page 6570]]
(v) the manufacturer's direct and indirect marketing and
promotional materials indicating the intended use of the weapon; and
(vi) information demonstrating the likely use of the weapon in the
general community.
B. Options for Affected Persons
Persons in possession of short-barreled rifles equipped with a
``stabilizing brace'' device have until May 31, 2023 to come into
compliance with the NFA's requirements. The options are as follows:
Current Unlicensed Possessors
1. Remove the short barrel and attach a 16-inch or longer rifled
barrel to the firearm, thus removing it from the scope of the NFA.
2. Submit through the eForms system an Application to Make and
Register a Firearm, ATF Form 1 (``E-Form 1'') by May 31, 2023.\174\ The
possessor may adopt the markings on the firearm for purposes of the E-
Form 1 if the firearm is marked in accordance with 27 CFR 478.92 and
479.102. If the firearm does not have the markings under 27 CFR 478.92
and 479.102, then the individual must mark the firearm as required.
Proof of submission of the E-Form 1 should be maintained by all
possessors.
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\174\ ATF strongly advises that affected parties use the eForms
system to lessen the administrative burden in registering firearms
affected by this rule.
---------------------------------------------------------------------------
To transfer an affected firearm to another individual after the
date this rule is published, it must be registered in the NFRTR, and
the individual must submit and receive approval on an Application for
Tax Paid Transfer and Registration of Firearm, ATF Form 4; otherwise,
the transfer is a violation of the NFA. See 26 U.S.C. 5861(e).
3. Permanently remove and dispose of, or alter, the ``stabilizing
brace'' such that it cannot be reattached, thereby removing the weapon
from regulation as a ``firearm'' under the NFA. The Department
recognizes that the removal of a ``stabilizing brace'' from a firearm
that was originally received as a ``short-barreled rifle'' results in
the production of a ``weapon made from a rifle,'' as defined by the
NFA. However, the Department in its enforcement discretion will allow
persons to reconfigure the firearm to a pistol by May 31, 2023 and will
not require the registration of these firearms as a ``weapon made from
a rifle.''
4. Turn the firearm into your local ATF office.
5. Destroy the firearm. ATF will publish information regarding
proper destruction on its website, www.atf.gov.
Federal Firearms Licensed Manufacturers or Importers Under GCA and
Qualified as an SOT (Class 1 Importer and Class 2 Manufacturer) Under
the NFA
1. Remove the short barrel and attach a 16-inch or longer rifled
barrel to the firearm thus removing it from the scope of the NFA.
2. For short-barred rifles equipped with a ``stabilizing brace''
that are currently in the possession of FFL SOT manufacturers or
importers, they may register them by completing and submitting through
the eForms system a Notice of Firearms Manufactured or Imported, ATF
Form 2 (``E-Form 2'') by May 31, 2023.
To transfer an affected firearm to an individual after the date
this rule is published, it must be registered in the NFRTR, and the FFL
SOT manufacturer or importer must submit and receive approval on an
Application for Tax Paid Transfer and Registration of Firearms, ATF
Form 4; otherwise, the transfer is a violation of the NFA. See 26
U.S.C. 5861(e). Similarly, to transfer an affected firearm to another
FFL SOT, it must be registered in the NFRTR, and the FFL SOT must
transfer the firearm on an Application for Tax-Exempt Transfer of
Firearm and Registration to Special Occupation Taxpayer (National
Firearms Act), ATF Form 3.
3. Permanently remove and dispose of, or alter, the ``stabilizing
brace'' such that it cannot be reattached, thereby removing the weapon
from regulation as a ``firearm'' under the NFA. The Department
recognizes that the removal of a ``stabilizing brace'' from a firearm
that was originally manufactured as a ``short-barreled rifle'' results
in the production of a ``weapon made from a rifle'' as defined by the
NFA. However, the Department in its enforcement discretion will allow
persons to reconfigure the firearm to a pistol by May 31, 2023 and will
not require the registration of these firearms as a ``weapon made from
a rifle.''
4. Turn the firearm into your local ATF office.
5. Destroy the firearm. ATF will publish information regarding
proper destruction on its website, www.atf.gov.
Federal Firearms Licensees Not Having Paid SOT as a Class 1 Importer or
Class 2 Manufacturer Under the NFA
1. Remove the short barrel and attach a 16-inch or longer rifled
barrel to the firearm thus removing it from the scope of the NFA.
2. For short-barred rifles equipped with a ``stabilizing brace''
that are currently in the possession of FFLs that do not have an SOT
(Class 1 Importer or Class 2 Manufacturer), they may submit through the
eForms system an Application to Make and Register a Firearm, ATF Form 1
(``E-Form 1'') by May 31, 2023. The possessor may adopt the markings on
the firearm for purposes of the E-Form 1 if the firearm is marked in
accordance with 27 CFR 478.92 and 479.102. If the firearm does not have
the markings under 27 CFR 478.92 and 479.102, then the individual must
mark the firearm as required. Proof of submission of the E-Form 1
should be maintained by all possessors.
To transfer an affected firearm to an individual after the date
this rule is published, it must be registered in the NFRTR, and the
non-SOT FFL must submit and receive approval on an Application for Tax
Paid Transfer and Registration of Firearm, ATF Form 4; otherwise, the
transfer is a violation of the NFA. See 26 U.S.C. 5861(e). Furthermore,
if the FFL wishes to continue to engage in the business of dealing
short-barreled rifles equipped with ``stabilizing brace'' devices that
are NFA firearms, the FFL must become an SOT holder under 26 U.S.C.
5801.
Any FFL without an SOT that is engaged in the business of
manufacturing short-barreled rifles equipped with a ``stabilizing
brace'' device should become a Class 2 SOT if they will continue to
engage in the business of dealing and manufacturing NFA firearms. Once
they obtain their SOT under 26 U.S.C. 5801, they must register their
NFA firearms in the NFRTR by completing and submitting the E-Form 2 by
May 31, 2023.
3. Permanently remove and dispose of, or alter, the ``stabilizing
brace'' such that it cannot be reattached, thereby removing the weapon
from regulation as a ``firearm'' under the NFA. The Department
recognizes that the removal of a ``stabilizing brace'' from a firearm
that was originally manufactured or received as a ``short-barreled
rifle'' results in the production of a ``weapon made from a rifle'' as
defined by the NFA. However, the Department in its enforcement
discretion will allow persons to reconfigure the firearm to a pistol by
May 31, 2023 and will not require the registration of these firearms as
a ``weapon made from a rifle.''
4. Turn the firearm into your local ATF office.
5. Destroy the firearm. ATF will publish information regarding
proper destruction on its website, www.atf.gov.
Certain Governmental Entities
1. Remove the short barrel and attach a 16-inch or longer rifled
barrel to the
[[Page 6571]]
firearm, thus removing it from the scope of the NFA.
2. Submit through the eForms system an Application to Make and
Register a Firearm, ATF Form 1 (``E-Form 1'') by May 31, 2023. The
government entity may adopt the markings on the firearm for purposes of
the E-Form 1 if the firearm is marked in accordance with 27 CFR 478.92
and 479.102. If the firearm does not have the markings under 27 CFR
478.92 and 479.102, then the government entity must mark the firearm as
required. Proof of submission of the E-Form 1 should be maintained by
all possessors.
To transfer an affected firearm after the date this rule is
published, it must be registered in the NFRTR, and the government
entity must submit and receive approval on an Application for Tax
Exempt Transfer and Registration of Firearm, ATF Form 5; otherwise, the
transfer is a violation of the NFA. See 26 U.S.C. 5861(e).
3. Alternatively, a government entity may submit through the eForms
system an Application for Registration of Firearms Acquired by Certain
Governmental Entities, ATF Form 10 (``E-Form 10'') by May 31, 2023. The
government entity may adopt the markings on the firearm for purposes of
the E-Form 10 if the firearm is marked in accordance with 27 CFR 478.92
and 479.102. If the firearm does not have the markings under 27 CFR
478.92 and 479.102, then the government entity must mark the firearm as
required. Pursuant to 27 CFR 479.104, any subsequent transfer of a
firearm registered on an E-Form 10 is restricted to other governmental
entities for official use. Proof of submission of the E-Form 10 should
be maintained by all possessors. Because of the anticipated number of
submissions in response to this rule, a government entity may wish to
submit an E-Form 10 because it will be easier for ATF to distinguish
from an E-Form 1 and will allow ATF to more quickly respond to law
enforcement needs. However, note that, pursuant to 27 CFR 479.104, any
subsequent transfer of a firearm registered on an E-Form 10 is
restricted to other governmental entities for official use, i.e., the
firearm may not be transferred to a non-government entity.
To transfer an affected firearm after the date this rule is
published, it must be registered in the NFRTR and the government entity
must submit and receive approval on an Application for Tax Exempt
Transfer and Registration of Firearms, ATF Form 5; otherwise, the
transfer is a violation of the NFA. See 26 U.S.C. 5861(e).
4. Permanently remove and dispose of, or alter, the ``stabilizing
brace'' such that it cannot be reattached, thereby removing the weapon
from regulation as a ``firearm'' under the NFA. The Department
recognizes that the removal of a ``stabilizing brace'' from a firearm
that was originally received as a ``short-barreled rifle'' results in
the production of a ``weapon made from a rifle'' as defined by the NFA.
However, the Department in its enforcement discretion will allow
persons to reconfigure the firearm to a pistol by May 31, 2023 and will
not require the registration of these firearms as a ``weapon made from
a rifle.''
5. Turn the firearm into your local ATF office.
6. Destroy the firearm. ATF will publish information regarding
proper destruction on its website, www.atf.gov.
C. Discussion of Tax Forbearance
The Department is forbearing the following NFA taxes on persons in
current possession of firearms equipped with a ``stabilizing brace'' as
described below:
1. Individuals and FFLs that are not Class 1 (Importer) and Class 2
(Manufacturer) SOT holders in possession of firearms equipped with a
``stabilizing brace'' that are subject to the provisions of the NFA as
of the date this rule is published will not be subject to the $200
making tax so long as they timely submit an E-Form 1 by May 31, 2023.
2. FFLs that are SOT Class 1 (Importer) and Class 2 (Manufacturer)
holders in possession of firearms equipped with a ``stabilizing brace''
that are subject to the provisions of the NFA as of the date this rule
is published must timely register their affected firearms on an E-Form
2 by May 31, 2023. Because the E-Form 2, as noted above, does not
require an accompanying NFA tax payment, ATF will not collect any taxes
for registration of these weapons.
In addition, the Department will forbear from collecting any
transfer tax for the transfer of a weapon with a ``stabilizing brace''
that is an NFA firearm for any transfer that occurred before the
effective date of this final rule.
With respect to the Department's authority to seek taxes
retroactively from individuals and FFLs (regardless of SOT status), the
Departments notes that Congress in 1996 amended 26 U.S.C. 7805(b) to
generally prohibit regulations relating to the internal revenue laws
from applying retroactively ``to any taxable period before'' the date
on which such regulation is filed with the Federal Register; in the
case of a final rule, the date on which any related proposed or
temporary rule was filed with the Federal Register; and the date on
which any notice substantially describing the expected contents of any
temporary, proposed, or final rule is made public.
When Congress made this 1996 amendment, however, it stated that
``[t]he amendment . . . shall apply with respect to regulations which
relate to statutory provisions enacted on or after the date of the
enactment of this Act.'' Taxpayer Bill of Rights 2, Public Law 104-168,
sec. 1101(b), 110 Stat. at 1452, 1469. Because the NFA was enacted in
1934 (i.e., before the 1996 amendment), the pre-1996 version of 26
U.S.C. 7805 applies. That section provides: ``[T]he Secretary may
prescribe the extent, if any, to which any ruling or regulation,
relating to the internal revenue laws, shall be applied without
retroactive effect.'' 26 U.S.C. 7805(b) (1994). Section 7805(b) did not
include other restrictions on retroactive regulations. Thus, the
Department has broad discretion regarding the retroactivity of taxes in
this rule. However, the Department believes it is appropriate to
forbear this retroactive tax liability. Doing so is appropriate because
of past public confusion about what sorts of weapons are in fact NFA
firearms and because attempting to collect past making or transfer
taxes would impose a substantial administrative burden on ATF to
determine which individual or entity did in fact make or transfer the
NFA firearm in question.
VI. Statutory and Executive Order Review
A. Executive Orders 12866 and 13563
Executive Order 12866 (Regulatory Planning and Review) directs
agencies to assess the costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic
benefits, environmental benefits, public health and safety effects,
distributive impacts, and equity). Executive Order 13563 (Improving
Regulation and Regulatory Review) emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility.
OMB has reviewed this rule and determined that this rule is a
``significant regulatory action'' that is economically significant
under section 3(f) of Executive Order 12866, because the rule will have
an annual effect on the economy of $100 million or more.
[[Page 6572]]
As required by OMB Circular A-4,\175\ ATF has prepared an accounting
statement showing the classification of expenditures associated with
the final rule.
---------------------------------------------------------------------------
\175\ OMB, Circular A-4 (Sept. 17, 2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf.
---------------------------------------------------------------------------
This rule sets forth standards for evaluating ``stabilizing
braces'' in conjunction with how they modify a firearm. This rule
clarifies the definition of ``rifle'' by providing that the term
``designed or redesigned, made or remade and intended to be fired from
the shoulder'' shall include a weapon that is equipped with an
accessory, component, or other rearward attachment (e.g., a
``stabilizing brace'') that provides surface area that allows
shouldering of the weapon, provided that other factors, as listed in
the rule, indicate the weapon is designed, made, and intended to be
fired from the shoulder.
Not only will this rule impact how ATF evaluates new firearms with
certain attached accessories, it will also affect ATF's evaluation of
existing firearms with attached ``stabilizing braces.'' Nothing in this
rule bans ``stabilizing braces'' or the use of ``stabilizing braces''
on pistols; however, firearms 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. Should individuals and FFLs be in possession of a firearm
with an attached ``stabilizing brace'' such that the firearm
constitutes a firearm under the NFA in addition to the GCA, the
affected persons or FFLs will need to choose one of the following
options. The options as presented in the final RIA are:
Scenario 1: Turn in the entire firearm with the attached
``stabilizing brace'' to ATF;
Scenario 2: Destroy the whole firearm;
Scenario 3: Convert the short-barreled rifle into a long-
barreled rifle;
Scenario 4: Apply to register the weapon under the NFA; or
Scenario 5: Permanently remove and dispose of, or alter,
the ``stabilizing brace'' from the firearm such that it cannot be
reattached.
Table 1 provides the OMB Accounting Statement, which illustrates
the primary, minimum, and maximum estimated costs and benefits of this
rule.
Table 1--OMB Accounting Statement
--------------------------------------------------------------------------------------------------------------------------------------------------------
Units
Primary Minimum Maximum -----------------------------------------
Category estimate estimate estimate Dollar Period covered Notes
year Disc (%) (years)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized monetized benefits ($ Millions/year)............ N/A N/A N/A 2021 7 10
N/A N/A N/A 2021 3 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized quantified...................................... N/A N/A N/A 2021 7 10
N/A N/A N/A 2021 3 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
Qualitative................................................ --To prevent manufacturers and individuals from circumventing the requirements
of the NFA.
--To enhance public safety by reducing the criminal use of NFA firearms, which
are easily concealable from the public and first responders.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized monetized costs ($ Millions/year)............... $266.9 $266.9 $581.9 2021 7 10
245.6 245.6 529.8 2021 3 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized quantified...................................... N/A N/A N/A 2021 7 10
N/A N/A N/A 2021 3 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
Qualitative (unquantified)................................. N/A.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal Annualized Monetized ($ Millions/year)............. N/A N/A N/A 2021 7 10
N/A N/A N/A 2021 3 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
From/To.................................................... From: Individuals and FFLs.
To: Federal Government.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Other Annualized monetized transfers ($ Million/year)...... N/A N/A N/A 2021 7 10
N/A N/A N/A 2021 3 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
From/To.................................................... From: N/A.
To: N/A.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects
--------------------------------------------------------------------------------------------------------------------------------------------------------
State, local, and/or Tribal governments.................... The rule will not impose an intergovernmental mandate or have significant or
unique effects on small governments, or have federalism or Tribal
implications.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small businesses........................................... Approximately 4 manufacturers of ``stabilizing braces'' will be significantly
affected by more than 10 percent of their revenue. May affect 13,210 Type 1
FFLs and 3,881 Type 7 FFLs. Type 1 FFLs may experience a range of costs from
$243 to a cost of $2,919. Most will not incur a significant effect. Type 7
FFLs may also experience a range of costs from $738 to $13,344, to an unknown
loss of revenue due to the inability to sell ``stabilizing braces.''
--------------------------------------------------------------------------------------------------------------------------------------------------------
Wages...................................................... N/A.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 6573]]
Growth..................................................... N/A.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 2 summarizes the affects that this rule would have on the
industry and public.
Table 2--Summary of Affected Population, Costs, and Benefits
------------------------------------------------------------------------
Affected populations, costs,
Category and benefits
------------------------------------------------------------------------
Affected Population.................... 5 Manufacturers of
affected ``stabilizing
braces.''
3,881 Manufacturers of
short-barreled rifles that
have a ``stabilizing brace''
attachment.
13,210 Dealers of
short-barreled rifles that
have a ``stabilizing brace''
attachment.
1.4 million firearm
owners who have pistols with
``stabilizing braces''
attached and those who intend
to purchase them in the
future.
Societal Costs (annualized)............ $263.6 million at 7%.
$242.4 million at 3%.
Government Costs (Annualized 7 Percent) $3.3 million.
Unquantified Benefits.................. To prevent
manufacturers and individuals
from circumventing the
requirements of the NFA.
To enhance public
safety by reducing the
criminal use of NFA firearms,
which are easily concealable
from the public and first
responders.
------------------------------------------------------------------------
For details regarding the costs and benefits of this rule, please
refer to the standalone final RIA on the docket.
Need for Federal Regulatory Action
One of the reasons the Department is issuing rule is that
individuals and affected entities affix purported ``stabilizing
braces'' to firearms to circumvent the requirements of the NFA, which
requires registration and taxes to be paid on the making and transfer
of NFA weapons. Congress chose to regulate these items more
stringently, finding them to be especially dangerous to the community
if not regulated since they are used for violence and criminal
activity. See Gonzalez, 2011 WL 5288727, at *5 (``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). Therefore, if persons can
circumvent the NFA by effectively making unregistered ``short-barreled
rifles'' by attaching an accessory such as a ``stabilizing brace,''
these dangerous, easily concealed weapons could more easily proliferate
and hence pose an increased public safety problem.
B. Executive Order 13132
This rule will not have substantial direct effects on the States,
the relationship between the Federal Government and the States, or the
distribution of power and responsibilities among the various levels of
government. Although some State laws incorporate Federal law for
purposes of banning or otherwise regulating short-barreled rifles, this
rule does not purport to preempt any State laws, nor does it require
any State to change its laws. Therefore, in accordance with section 6
of Executive Order 13132 (Federalism), the Attorney General has
determined that this rule does not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement.
C. Executive Order 12988
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice
Reform).
D. Regulatory Flexibility Act (``RFA'')
The RFA establishes ``as a principle of regulatory issuance that
agencies shall endeavor, consistent with the objectives of the rule and
of applicable statutes, to fit regulatory and informational
requirements to the scale of the businesses, organizations, and
governmental jurisdictions subject to regulation. To achieve this
principle, agencies are required to solicit and consider flexible
regulatory proposals and to explain the rationale for their actions to
assure that such proposals are given serious consideration.'' Public
Law 96-354, sec. 2(b), 94 Stat. 1164, 1165 (1980).
Under the RFA, the agency is required to consider if this rule will
have a significant economic impact on a substantial number of small
entities. Agencies must perform a review to determine whether a rule
will have such an impact. If the agency determines that it will, the
agency must prepare a regulatory flexibility analysis as described in
the RFA.
Under the RFA (5 U.S.C. 604(a)), the FRFA must contain:
A statement of the need for, and objectives of, the rule;
A statement of the significant issues raised by the public
comments in response to the initial regulatory flexibility analysis, a
statement of the assessment of the agency of such issues, and a
statement of any changes made in the proposed rule as a result of such
comments;
The response of the agency to any comments filed by the
Chief Counsel for Advocacy of the Small Business Administration in
response to the proposed rule, and a detailed statement of any change
made to the proposed rule in the final rule as a result of the
comments;
A description of and an estimate of the number of small
entities to which the rule will apply or an explanation of why no such
estimate is available;
A description of the projected reporting, recordkeeping,
and other compliance requirements of the rule,
[[Page 6574]]
including an estimate of the classes of small entities which will be
subject to the requirement and the type of professional skills
necessary for preparation of the report or record; and
A description of the steps the agency has taken to
minimize the significant economic impact on small entities consistent
with the stated objectives of applicable statutes, including a
statement of the factual, policy, and legal reasons for selecting the
alternative adopted in the final rule and why each one of the other
significant alternatives to the rule considered by the agency that
affect the impact on small entities was rejected.
ATF estimates that this final rule will have a significant impact
on a substantial number of small businesses. Therefore, ATF has
prepared a FRFA. For more details regarding the impacts to small
businesses, please refer to the standalone RIA located on the docket.
E. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is likely to have a significant economic impact on a
substantial number of small entities under the Small Business
Regulatory Enforcement Fairness Act of 1996 (``SBREFA''), Public Law
104-121, title II, 110 Stat. 847, 857, 5 U.S.C. 601 et seq.
Accordingly, the Department prepared an IRFA for the proposed rule and
prepared a FRFA for the final rule. 5 U.S.C. 603-04. Furthermore, a
small business compliance guide will be published as required by
SBREFA.
F. Congressional Review Act
Pursuant to the legislation known as the Congressional Review Act,
see Public Law 104-121, sec. 251, 110 Stat. 847, 868 (1996), 5 U.S.C.
801 et seq., OMB's Office of Information and Regulatory Affairs has
concluded that this rule satisfies the definition of 5 U.S.C. 804(2).
This rule is projected to have an effect of over $100 million on the
economy in at least one year of the final rule.
G. Unfunded Mandates Reform Act of 1995 (``UMRA'')
This rule will not result in the expenditure by State, local, and
Tribal governments, in the aggregate, of $100 million or more (adjusted
for inflation) in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the UMRA, Public Law 104-4, 109 Stat.
48. However, based on the analysis presented in the RIA, the Department
concludes that the rule would impose a Federal mandate on the private
sector in excess of $100 million in expenditures in any one year. The
RIA constitutes the written statement containing a qualitative and
quantitative assessment of the anticipated costs, benefits, and
alternatives required under section 202(a) of the UMRA. See 2 U.S.C.
1532.
H. Paperwork Reduction Act of 1995
This rule will call for collections of information under the
Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163, 44
U.S.C. 3501-20. As defined in 5 CFR 1320.3(c), ``collection of
information'' comprises reporting, recordkeeping, monitoring, posting,
labeling, and other similar actions. The estimate of the paperwork
burden discussed in the RIA covers the time for reviewing instructions,
searching existing sources of data, gathering and maintaining the data
needed, and completing and reviewing the collection.
Under the provisions of this rule, there would be a one-time
increase in paperwork burdens of NFA applications. This requirement
would be added to an existing approved collection covered by OMB
control numbers 1140-0011 and 1140-0012. For details regarding this
collection of information, please refer to the standalone Executive
Orders 12866 and 13563 on the docket.
Disclosure
Copies of the final rule, proposed rule, and comments received in
response to the proposed rule will be available through the Federal
eRulemaking portal, www.regulations.gov (search for RIN 1140-55), and
for public inspection by appointment during normal business hours at:
ATF Reading Room, Room 1E-063, 99 New York Ave. NE, Washington, DC
20226; telephone: (202) 648-8740
List of Subjects
27 CFR Part 478
Administrative practice and procedure, Arms and munitions, Exports,
Freight, Imports, Intergovernmental relations, Law enforcement
officers, Military personnel, Penalties, Reporting and recordkeeping
requirements, Research, Seizures and forfeitures, Transportation.
27 CFR Part 479
Administrative practice and procedure, Arms and munitions, Excise
taxes, Exports, Imports, Military personnel, Penalties, Reporting and
recordkeeping requirements, Seizures and forfeitures, and
Transportation.
Authority and Issuance
For the reasons discussed in the preamble, 27 CFR parts 478 and 479
are amended as follows:
PART 478--COMMERCE IN FIREARMS AND AMMUNITION
0
1. The authority citation for 27 CFR part 478 continues to read as
follows:
Authority: 5 U.S.C. 552(a); 18 U.S.C. 847, 921-931; 44 U.S.C.
3504(h).
0
2. In Sec. 478.11, amend the definition of ``rifle'' by adding
paragraphs (1) and (2) to read as follows:
Sec. 478.11 Meaning of terms.
* * * * *
Rifle. * * *
(1) For purposes of this definition, the term ``designed or
redesigned, made or remade, and intended to be fired from the
shoulder'' shall include a weapon that is equipped with an accessory,
component, or other rearward attachment (e.g., a ``stabilizing brace'')
that provides surface area that allows the weapon to be fired from the
shoulder, provided other factors, as described in paragraph (2),
indicate that the weapon is designed, made, and intended to be fired
from the shoulder.
(2) When a weapon provides surface area that allows the weapon to
be fired from the shoulder, the following factors shall also be
considered in determining whether the weapon is designed, made, and
intended to be fired from the shoulder:
(i) Whether the weapon has a weight or length consistent with the
weight or length of similarly designed rifles;
(ii) Whether the weapon has a length of pull, measured from the
center of the trigger to the center of the shoulder stock or other
rearward accessory, component or attachment (including an adjustable or
telescoping attachment with the ability to lock into various positions
along a buffer tube, receiver extension, or other attachment method),
that is consistent with similarly designed rifles;
(iii) Whether the weapon is equipped with sights or a scope with
eye relief that require the weapon to be fired from the shoulder in
order to be used as designed;
(iv) Whether the surface area that allows the weapon to be fired
from the shoulder is created by a buffer tube, receiver extension, or
any other accessory, component, or other rearward attachment that is
necessary for the cycle of operations;
(v) The manufacturer's direct and indirect marketing and
promotional
[[Page 6575]]
materials indicating the intended use of the weapon; and
(vi) Information demonstrating the likely use of the weapon in the
general community.
* * * * *
PART 479--MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN OTHER
FIREARMS
0
3. The authority citation for 27 CFR part 479 continues to read as
follows:
Authority: 26 U.S.C. 5812; 26 U.S.C. 5822; 26 U.S.C. 7801; 26
U.S.C. 7805
0
4. In Sec. 479.11, amend the definition of ``rifle'' by adding
paragraphs (1) and (2) to read as follows:
Sec. 479.11 Meaning of terms.
* * * * *
Rifle. * * *
(1) For purposes of this definition, the term ``designed or
redesigned, made or remade, and intended to be fired from the
shoulder'' shall include a weapon that is equipped with an accessory,
component, or other rearward attachment (e.g., a ``stabilizing brace'')
that provides surface area that allows the weapon to be fired from the
shoulder, provided other factors, as described in paragraph (2),
indicate that the weapon is designed, made, and intended to be fired
from the shoulder.
(2) When a weapon provides surface area that allows the weapon to
be fired from the shoulder, the following factors shall also be
considered in determining whether the weapon is designed, made, and
intended to be fired from the shoulder:
(i) Whether the weapon has a weight or length consistent with the
weight or length of similarly designed rifles;
(ii) Whether the weapon has a length of pull, measured from the
center of the trigger to the center of the shoulder stock or other
rearward accessory, component or attachment (including an adjustable or
telescoping attachment with the ability to lock into various positions
along a buffer tube, receiver extension, or other attachment method),
that is consistent with similarly designed rifles;
(iii) Whether the weapon is equipped with sights or a scope with
eye relief that require the weapon to be fired from the shoulder in
order to be used as designed;
(iv) Whether the surface area that allows the weapon to be fired
from the shoulder is created by a buffer tube, receiver extension, or
any other accessory, component, or other rearward attachment that is
necessary for the cycle of operations;
(v) The manufacturer's direct and indirect marketing and
promotional materials indicating the intended use of the weapon; and
(vi) Information demonstrating the likely use of the weapon in the
general community.
* * * * *
Dated: January 13, 2023.
Merrick B. Garland,
Attorney General.
[FR Doc. 2023-01001 Filed 1-30-23; 8:45 am]
BILLING CODE 4410-FY-P