ATF states that it is publishing the “objective factors” it considers when evaluating firearms with an attached stabilizing brace to determine whether they are considered firearms under the NFA and/or the Gun Control Act. ATF is inviting comment from the industry and public on the proposed guidance prior to issuing a final document. Upon issuance of final guidance, ATF states it will provide additional information to aid persons and companies in complying with federal laws and regulations. The notice also outlines ATF’s enforcement priorities regarding persons who, prior to publication of the notice, made or acquired in good faith firearms equipped with a stabilized brace. The notice also sets forth ATF’s and the Department of Justice’s plan to implement a process for current possessors of stabilizer-equipped firearms to choose to register such firearms in compliance with the NFA, including an expedited application process and the retroactive exemption of such firearms from the collection of NFA taxes.

The notice can be found at the following link: https://www.federalregister.gov/documents/2020/12/18/2020-27857/objective-factors-for-classifying-weapons-with-stabilizing-braces#addresses. Comments are due by January 4, 2021 and can be submitted online by that date or mailed postmarked by that date to ATF.

The notice sets forth a number of factors ATF says it considers. These are:

• Type and Caliber. The type and caliber of firearm to which the stabilizing brace or similar item is installed. A large caliber firearm that is impractical to fire with one hand because of recoil or other factors, even with an arm brace, is likely to be considered a rifle or shotgun.
• Weight and Length. The weight and length of the firearm used with the stabilizing brace. A firearm that is so heavy that it is impractical to fire or aim with one hand, or so long that it is difficult to balance the firearm to fire with one hand, is likely to be considered a rifle or shotgun.
• Length of Pull. The “length of pull” refers to the distance from the trigger to the point at which a stock meets the shoulder. This is a measurement for rifles and shotguns used to accommodate shooters of different sizes. Because an arm brace need only reach the forearm, the distance between the trigger and the back of the brace is generally expected to be shorter than the distance between the trigger and the back of a stock on a weapon designed and intended to be fired from the shoulder. This measurement is not necessarily determinative of the intent of the manufacturer but is used in making an evaluation of the firearm. If a brace is of a length that makes it impractical to attach to the shooter's wrist or forearm, then that may demonstrate that it is not designed as brace but rather for shoulder fire.
• Attachment Method. The method of attachment of the stabilizing brace, to include modified stock attachments, extended receiver extensions, and the use of spacers. These items extend the distance between the trigger and the part of the weapon that contacts the shooter, whether it is a stock or stabilizing brace. Use of these items indicates that the weapon is designed and intended to be fired from the shoulder because they extend a stabilizing brace beyond a point that is useful for something other than shoulder support.
• Stabilizing Brace Design Features. The objective design features of the attached stabilizing brace itself are relevant to the classification of the assembled weapon, and include:

○ The comparative function of the attachment when utilized as a stabilizing brace compared to its alternate use as a shouldering device;

○ The design of the stabilizing brace compared to known shoulder stock designs;

○ The amount of rear contact surface area of the stabilizing brace that can be used in shouldering the weapon as compared to the surface area necessary for use as a stabilizing brace;

○ The material used to make the attachment that indicates whether the brace is designed and intended to be pressed against the shoulder for support, or actually used on the arm;

○ Any shared or interchangeable parts with known shoulder stocks; and

○ Any other feature of the brace that improves the weapon's effectiveness from the shoulder-firing position without providing a corresponding benefit to the effectiveness of the stability and support provided by the brace's use on the arm.

• Aim Point. Appropriate aim point when utilizing the attachment as a stabilizing brace. If the aim point when using the arm brace attachment results in an upward or downward trajectory that could not accurately hit a target, this may indicate the attachment was not designed as a stabilizing brace.
• Secondary Grip. The presence of a secondary grip may indicate that the weapon is not a “pistol” because it is not designed to be held and fired by one hand.
• Sights and Scopes. Incorporation of sights or scopes that possess eye relief incompatible with one-handed firing may indicate that the weapon is not a “pistol” because they are designed to be used from a shoulder-fire position and are incompatible for the single-handed shooting that arm braces are designed and intended.
• Peripheral Accessories. Installation of peripheral accessories commonly found on rifles or shotguns that may indicate that the firearm is not designed and intended to be held and fired with one hand. This includes, but is not limited to, the installation of bipods/monopods that improve the accuracy of heavy weapons designed and intended to be fired from the shoulder; or the inclusion of a magazine or drum that accepts so many cartridges that it increases the overall weight of the firearm to a degree that it is impractical to fire the weapon with one hand even with the assistance of a stabilizing brace.

ATF also indicates that how a product is marketed is also a factor in its determination. 

ATF states that it plans to implement a separate process by which current possessors of affected stabilizer-equipped firearms may choose to register such firearms to be compliant with the NFA. As part of that process, ATF plans to expedite processing of these applications, and ATF has been informed that the Attorney General plans retroactively to exempt such firearms from the collection of NFA taxes if they were made or acquired, prior to the publication of the notice, in good faith. This separate process may include the following options: registering the firearm in compliance with the NFA (described above), permanently removing the stabilizing brace from the firearm and disposing of it, replacing the barrel of the firearm (16” or greater for a rifle, or 18” or greater for a shotgun), surrendering the firearm to ATF, or destroying the firearm.

Until that process is implemented, ATF indicates it will exercise its enforcement discretion not to enforce the registration provisions of the NFA against any person who, before publication of this notice, in good faith acquired, transferred, made, manufactured, or possessed an affected stabilizer-equipped firearm.

The notice states that it is not an administrative determination that any particular firearm equipped with a stabilizing arm brace is an NFA firearm. “To the extent the ATF Director subsequently issues such a determination, the ATF Director, at the direction of the Attorney General, plans retroactively to exempt such firearms from the collection of NFA taxes, provided those firearms were made or acquired in good faith prior to the publication” of the notice.

Persons may submit comments in one of three ways:

• Federal eRulemaking Portal: ATF recommends that you submit your comments to ATF via the Federal eRulemaking portal at www.regulations.gov and follow the instructions. Comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that is provided after you have successfully uploaded your comment.
• Mail: Send written comments to the address listed in ADDRESSES section of this document. Written comments must appear in minimum 12-point font size (.17 inches), include the commenter's first and last name and full mailing address, be signed, and may be of any length.
• Facsimile: Submit comments by facsimile transmission to (202) 648-9741. Faxed comments must: 1. Be legible and appear in minimum 12-point font size (.17 inches); 2. Be on 8 1/2″ x 11″ paper; 3. Be signed and contain the commenter's complete first and last name and full mailing address; and, 4. Be no more than five pages long.

If you have questions concerning this proceeding or would like Arsenal Attorneys to assist you in submitting comments, contact us know to schedule a consultation. We have already responded to many requests from clients who wish to create Arsenal Gun Trusts because of this situation. While they oppose ATF’s proposed regulation of arm braces, they wish to avoid uncertainty by registering their pistols as SBR’s in a trust. The trust could then authorize possession by multiple people and could allow successor trustees and beneficiaries to maintain the same trust and NFA registrations. Many clients understandably take this proactive, cautious approach rather than assuming the risk of continued flip flops in ATF policies. Nevertheless, we encourage clients to use the public comment period to express their concerns. Again, the site for online comment can be found here: www.regulations.gov

Arsenal Attorneys is a nationwide law firm with offices in Fairfax, Virginia and Rocklin, California. The firm offers services in estate planning, criminal defense, civil litigation, business law, landlord-tenant disputes, real estate, firearms law and more. George Lyon is licensed to practice law in Virginia and the District of Columbia. He was one of the plaintiffs in Palmer v. District of Columbia that forced DC to begin issuing concealed carry licenses and in the US Supreme Court's landmark Second Amendment decision, Heller, which legalized handguns in Washington, DC. Mr. Lyon is licensed by the Metropolitan Police Department to teach the DC Concealed Carry License course including the renewal course and conducts the course monthly. His class schedule for the first quarter of 2021 is: January 23-24; February 20-21 and March 20-21. All classes will be conducted online in light of the continuing COVID 19 health emergency with the shooting portion of the course arranged by appointment. To sign up for his course, contact Mr. Lyon at gll[at]arsenalattorneys.com or at 703-291-3312.

This blog is for educational purposes only and is not intended as legal advice or to create an attorney-client relationship.