The Bureau of Alcohol, Tobacco, and Firearms (ATF) has leaked a notice set to be published in the federal register today that purports to provide guidance to gun owners on whether the addition of a stabilizing brace transforms a pistol into an NFA-regulated short-barreled rifle (SBR).
The proposed new rule comes after the ATF reversed their position on stabilizing braces in October, telling gun company Q, Inc., that their “Honey Badger” pistol would be considered an SBR while fitted with a brace. After an uproar from gun owners and manufacturers, the agency promised to clarify their ruling.
According to today’s notice, the ATF will consider factors like caliber, length, weight, and sights when classifying firearms equipped with a stabilizing brace. The guidance also clarifies that the ATF makes determinations on individual firearms “holistically on a case-by-case basis.” In other words, the ATF claims it does not and has not ruled that any make or model of pistol brace exempts all firearms from NFA classification.
The pro-gun group Gun Owners of America pointed out in a press release that, contrary to the new guidance, the ATF has issued approval letters for pistol braces in the past.
“Although ATF issued classification letters which approved various pistol braces, this Notice apparently would rescind all those prior letters,” the group said. “Going forward, ATF claims that a ‘classification pertains only to the particular sample submitted’ — meaning a particular firearm, with a particular brace, outfitted in a particular way with particular accessories. If any of those change, the classification would no longer apply.”
The ATF provided a list of supposedly objective features they will consider when determining whether a firearm is considered an NFA item even when fitted with a pistol brace. This list, they say, is not exhaustive.
- Type and caliber – Firearms chambered in larger calibers that would be impractical to fire with one hand will likely be considered rifles or shotguns. The ATF does not name which calibers it will consider impractical.
- Weight and length – Firearms that are too heavy or long to be fired with one hand will likely be considered rifles or shotguns. The ATF does not provide objective criteria for what it will consider too heavy or long.
- Length of pull – Firearms with a long length of pull will likely be considered rifles and shotguns since LOP does not need to be very long for a pistol brace to be attached to a wrist or forearm. The ATF does not say how short a firearm’s LOP must be to be considered a pistol.
- Attachment method – Firearms fitted with receiver extensions or spacers indicate that the weapon is meant to be fired from shoulder and will likely be considered rifles or shotguns.
- Brace design features – Firearms with braces that mimic stocks too closely will likely be considered rifles and shotguns. In making its determination, the ATF will consider features like the amount of rear contact surface area and whether features benefit use as a stock but not use as an arm brace. (Presumably, this might include something like a cheek riser.)
- Aim point – If the gun cannot be properly aimed while using an arm brace, it will likely be considered a rifle or shotgun.
- Secondary grip – Firearms with secondary grips will likely be considered rifles or shotguns.
- Sights and scopes – Firearms fitted with scopes or sights that cannot be used with an arm brace (if the eye relief too short, for example) will likely be considered rifles or shotguns.
- Accessories – Firearms fitted with bipods or magazines that make the firearm too heavy to be used with an arm brace will likely be considered rifles or shotguns.
- Marketing – The ATF will consider how a firearm is marketed in determining the manufacturer’s intended use of a pistol brace.
- Use – The ATF will consider how a firearm fitted with a brace has been used by gun owners and the firearm media in making its determinations.
Despite this seemingly comprehensive list, gun rights groups have noted that the ATF is short on specifics. Even though the agency claims that they will “apply the evaluation factors objectively, not subjectively,” and that “no classification will depend upon the physical attributes of a particular [ATF officer],” the ATF does not say what those objective criteria are.
“In other words, ATF’s ‘objective factors’ will be a secret, and will be interpreted entirely subjectively,” the GOA says in its press release.
Not every pro-gun group is as fired up as GOA. The Firearms Policy Coalition points out that the ATF’s new guidance does not constitute a total ban on pistol braces because it acknowledges that the mere presence of a brace does not automatically convert the firearm into one under the purview of the NFA.
The FPC also points out that the ATF acknowledges that most gun owners acted in good faith when they purchased their firearms and braces. The new rule claims the ATF and DOJ will develop an expedited process by which current brace owners will be able to register their rifles under NFA guidelines, and the DOJ has promised to waive the $200 tax stamp for these individuals.
If gun owners do not wish to register a firearm that has not been deemed to be a pistol, they can permanently remove the brace and dispose of it, replace the barrel with something longer (great than 16 inches for a rifle, 18 inches for a shotgun), surrender the firearm to ATF, or destroy the firearm.
It’s unclear whether gun owners who have built pistols from parts will be allowed to participate in this expedited process.
Until that process has been put in place, the ATF claims they won’t prosecute anyone for owning stabilizer-equipped firearms purchased in good faith.
The ATF is accepting comments for 14 days after the date of publication in the federal register, which has not happened as of 12/18/2020 10:21 AM EST. The ATF provides a full set of instructions for submitting comments online, by mail, and by fax, but the easiest way will be to search for the docket number – ATF 2020R-10 – on Regulations.gov and submit a comment from there.
(A note for gun owners: The ATF will not consider comments “containing excessive profanity.”)