June 01, 2023
Readers will recall back in January when the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") published Final Rule 2021R-08F (the “Final Rule”) amending its regulations to clarify when a rifle is designed, made, and intended to be fired from the shoulder. As we explained in our January 31, 2023 alert, the compliance period is due to close May 31, 2023. This rule impacts pistols equipped with certain stabilizing braces by amending the definition of "rifle" in ATF's regulations so that if the stabilizing brace meets certain criteria, the firearm may be subject to the National Firearms Act (NFA) controls as a short barrel rifle.
I. Recap of the Final Rule
(1) For purposes of this definition, the term ‘‘designed or redesigned, made or remade, and intended to be fired from the shoulder’’ shall include a weapon that is equipped with an accessory, component, or other rearward attachment (e.g., a ‘‘stabilizing brace’’) that provides surface area that allows the weapon to be fired from the shoulder, provided other factors, as described in paragraph (2), indicate that the weapon is designed, made, and intended to be fired from the shoulder.
(2) When a weapon provides surface area that allows the weapon to be fired from the shoulder, the following factors shall also be considered in determining whether the weapon is designed, made, and intended to be fired from the shoulder:
(i) Whether the weapon has a weight or length consistent with the weight or length of similarly designed rifles;
(ii) Whether the weapon has a length of pull, measured from the center of the trigger to the center of the shoulder stock or other rearward accessory, component or attachment (including an adjustable or telescoping attachment with the ability to lock into various positions along a buffer tube, receiver extension, or other attachment method), that is consistent with similarly designed rifles;
(iii) Whether the weapon is equipped with sights or a scope with eye relief that require the weapon to be fired from the shoulder in order to be used as designed;
(iv) Whether the surface area that allows the weapon to be fired from the shoulder is created by a buffer tube, receiver extension, or any other accessory, component, or other rearward attachment that is necessary for the cycle of operations;
(v) The manufacturer’s direct and indirect marketing and promotional materials indicating the intended use of the weapon; and (vi) Information demonstrating the likely use of the weapon in the general community.
II. Implications on Prior Classifications
CAUTION! On January 31, 2023, ATF revoked all prior ATF classifications of firearms equipped with a brace device. This means that no one may rely on a classification issued prior to January 31, 2023. While a classification request may be resubmitted to ATF, the agency cautions that a majority of the existing firearms equipped with a stabilizing brace will likely be classified as “rifles” "because they are configured for shoulder fire based on the factors described in the Final Rule. Because many of these firearms generally have a barrel of less than 16 inches, they are likely to be classified as short-barreled rifles subject to regulation and registration under the NFA and GCA." See Final Rule at p. 6480.
ATF does not have a list of specific braces that qualify as making a pistol into a short-barreled rifle ("SBR"), explaining that it does not regulate accessories such as stabilizing braces by themselves. However, ATF does provide examples of commercially available firearms and common weapon platforms equipped with a stabilizing brace that are short-barreled rifles.
III. Options for Affected Parties
Beginning on January 31, 2023, parties who were already in possession of firearms now classified as NFA-controlled short barrel firearms because of the stabilizing brace have until, May 31, 2023, to come into compliance with the NFA. There are several options to achieve compliance:
A. Options Available to All 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. Permanently remove and dispose of, or alter, the ‘‘stabilizing brace’’ such that it cannot be reattached. This action, as long as it is completed by May 31, 2023, will remove the weapon from regulation as a ‘‘firearm’’ under the NFA. According to ATF, making this change after May 31, 2023 will not remove the weapon from the NFA as it may be controlled as a ‘‘weapon made from a rifle.’’
3. Turn the firearm into a local ATF office.
4. Destroy the firearm. ATF will publish information regarding proper destruction on its website.
5. Register the weapon as specified for the particular category of possessor.
B. Registration Option for Non-Licensee Possessors
Submit by May 31, 2023 through the eForms system a Form 1 Application to Make and Register a Firearm (‘‘E-Form 1’’) for each affected firearm in the applicant's possession. The possessor may adopt the markings on the firearm for purposes of the E-Form 1 if the firearm is marked in accordance with 27 CFR 478.92 and 479.102. If the firearm does not have the markings under 27 CFR 478.92 and 479.102, then the individual must mark the firearm as required. Proof of submission of the E- Form 1 should be maintained by all possessors. These registrations will NOT be required to pay the $200 making tax as long as the E-Form 1 is submitted by May 31, 2023. It is important to emphasize that the firearm is not registered as an SBR until the applicant receives an approved Form 1. Once the firearm is registered as an SBR, the registrant may change out the brace device or stock for a different brace or stock. No notification to ATF is necessary in these cases because changing the the brace or stock does not change the configuration of the firearm. If the length of the firearm changes, the registrant must notify the NFA Division.
C. Registration Option for Federal Firearms Licensed ("FFL") Manufacturers or Importers and Qualified as Special (Occupational) Taxpayer ("SOT") Class 1 Importer or Class 2 Manufacturer
For all affected firearms in the FFL's inventory as of January 31, 2023, submit through the eForms system by May 31, 2023 a Form 2 Notice of Firearms Manufactured or Imported ("E-Form 2").
D. Registration Option for FFLs Not Having Paid SOT as a Class 1 Importer or Class 2 Manufacturer Under the NFA (Including FFL/SOT Dealers)
Submit through eForms by May 31, 2023 an E-Form 1 for each affected firearm. The possessor may adopt the markings on the firearm for purposes of the E-Form 1 if the firearm is marked in accordance with 27 CFR 478.92 and 479.102. If the firearm does not have the markings under 27 CFR 478.92 and 479.102, then the FFL must mark the firearm as required. Proof of submission of the E-Form 1 should be maintained by all possessors.
It is important to note that any FFL without a Class 2 SOT that is engaged in the business of manufacturing short-barreled rifles equipped with a ‘‘stabilizing brace’’ device should become a Class 2 SOT if they will continue to engage in the business of dealing and manufacturing NFA firearms. Once they obtain their SOT under 26 U.S.C. 5801, they must register their NFA firearms with ATF by completing and submitting the E-Form 2 by May 31, 2023.
As indicated above, ATF is forbearing NFA taxes on persons who were in possession of firearms equipped with stabilizing braces that are SBRs on January 31, 2023. However, this forbearance applies only to new registrations submitted by May 31, 2023. All transfers will be subject to the NFA tax requirements of the NFA in 26 U.S.C. 5811.
IV. Effects of Litigation
Several cases challenging the brace rule are currently pending. All but one are in the preliminary motions phase and likely will not impact the end of the compliance period. However, there is one case in which the plaintiffs have been able to obtain a limited injunction against ATF's enforcement of the Final Rule. In Mock v. Garland, filed in the Northern District of Texas (Case No. 4:23-cv-00095-O), the district court denied the plaintiffs' motion for an injunction on March 30, 2023. The plaintiffs have appealed to the Fifth Circuit (Case No. 0:23-usc-10319), and while that appeal is pending (oral argument is scheduled for June 29, 2023), the Court has ordered a Preliminary Injunction against ATF's enforcement of the Final Rule. However, the injunction is limited to the Plaintiffs in the case: Maxim Defense Industries, LLC, Christopher Lewis, William Mock, and the Firearms Policy Coalition, Inc. On Friday, May 26, 2023, the Fifth Circuit issued and Order clarifying that the "Plaintiffs" include the customers and members whose interests Plaintiffs Maxim Defense and Firearms Policy Coalition have represented "since day one of this litigation." The Court also explained that "Plaintiffs" include the individual plaintiffs' resident family members. In issuing this clarification, the Court emphasized that any relief beyond this is denied because it would be tantamount to a nationwide injunction. "The limited purpose of this clarification is to preserve the status quo ante to provide what [defendants] term 'complete relief' to the parties and persons within the reasonable scope of the motion panel's injunction pending appeal." The Court explains in a footnote that "[t]here is no authority in the motion panel's order to extend the injunction to an infinite number of non-parties to this case on the theory that, for full relief to be afforded to the plaintiffs, the plaintiffs must be permitted to sell products to an undefined set of downstream purchasers."
V. ATF Resources
For more information on the brace rule, please visit ATF's website, which includes a variety or resources to aid the public in interpreting and operating under the Final Rule. These resources include: (1) the PowerPoint presentation given during SHOT Show; (2) NFA Form 1 submission guidance with Q&A; (3) a chart depicting the affected parties and their options under the Final Rule; and (4) a list of Frequently Asked Questions.
For questions regarding the application of the final rule, contact the Firearms Industry Programs Branch at Firearms Industry Programs Branch: FIPB@atf.gov. For technical questions regarding firearms, contact the Firearms and Ammunition Technology Division at: Fire_Tech@atf.gov. To register for an eForms account and/or submit an eForm 1 pursuant to ATF Final Rule 2021R-08F, please visit https://eforms.atf.gov/login.
About the Author
Reeves & Dola is a Washington, DC law firm that specializes in helping clients navigate the highly regulated and complex world of manufacturing, sales and international trade of defense and commercial products. We have a deep understanding of the Federal regulatory process, and use our expertise in working with a variety of Federal agencies to assist our clients with their transactional and regulatory needs.
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