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ATF Withdraws Proposed Rule Making Stabilizing Brace An SBR

Those that have read our previous blogs on stabilizing braces know of the indecision surrounding stabilizing pistol braces from the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"). On December 18, 2020 the ATF issued formal notice exercising its rulemaking authority to reclassify AR-style pistols equipped with stabilizing braces as NFA items. Although this move was predictable, it also could have been monumental. But, as usual, the ATF could not make up their mind, and it withdrew the notice of the proposed rule. It appears, at least for now, stabilizing braces are safe from regulation. Although gun owners won this battle, the war is not over.

Short History of the Stabilizing Brace

When the arm brace was first developed, it had the appearance of a shoulder stock. Attaching a shoulder stock to an AR-style pistol with a barrel length under 16 inches turns the firearm into an NFA weapon: specifically, a short-barreled rifle ("SBR"). Firearm and accessory manufacturers got pre-approval from the ATF to ensure these braces did not turn AR pistols into SBRs. While the ATF took many different (sometimes contradictory) positions on these items over the years, they initially decided the braces did NOT turn a pistol into an SBR.

So what changed? Over time, through private letters to firearm and accessory manufacturers, the ATF took the opposite stance: that some of the design features of the stabilizing braces would turn an AR-style pistol into an SBR. The ATF chose to flex its regulatory muscles through targeted, private, and informal decision letters, rather than through formal rulemaking procedures. These letters have left the gun owners of this country with a confusing regulatory framework and no idea how to navigate it.

The ATF's current stance is also unclear, but prior to withdrawing the proposed rule, it seemed to take the following stance: rather than being used for its intended purpose, many stabilizing braces allow the user to purposefully shoulder a pistol. Indeed, some of these braces are being marketed as such. This marketing approach is contrary to the intended purpose of the stabilizing braces, and the ATF believes that an AR pistol with a stabilizing brace may now be restricted as an SBR.

Notice and Comment Process

Why ask for comments from the public before issuing a concrete rule? In short, this is a procedural step that federal agencies must complete before they implement rules. Federal agencies are given great deference in defining the terms in their own industry, but they cannot do so without advanced notice to the public and without asking for public input. Agencies cannot change the rules behind closed doors or in the proverbial dark of night. In order to ensure the public has a voice, much like the ATF did with bump stocks in 2018, agencies must ask the public for comments and consider public opinion when attempting to implement new rules and regulations. After the public submits their opinions, the agency must review the comments, amend the final rule if necessary, and then give the public notice of what the final rule entails, when the rule will be in full force, and how to comply with the rule.

In this case, on December 23, 2020, only five days after the initial notice of rulemaking, the ATF withdrew its notice. It stated: "Upon further consultation with the Department of Justice and the Office of the Deputy Attorney General, ATF is withdrawing, pending further Department of Justice review, the notice and request for comments…" This language indicates that, although the ATF withdrew the proposed rule for now, it will continue to review the rules and has full authority to change its mind once again.

The Proposed Rule Before it was Withdrawn

The proposed rule would have reclassified some existing firearms equipped with stabilizing braces as NFA items, resulting in the need to register the firearm and pay a tax. The ATF said that it would make the determination by a "totality of the circumstances" approach. However, this means the determination would be made more on a case-by-case basis, which gives little guidance to current firearm owners.

The ATF did provide some objective criteria that may be used in the analysis of whether a firearm is a pistol or an SBR in the future.

In determining whether an item is an AR pistol or an SBR, the ATF will look at several factors such as type and caliber, weight and length, length of pull, attachment method, stabilizing brace design features, aim point, secondary grip, sights and scopes, and peripheral accessories.

Unfortunately, the ATF has said that none of these factors alone are determinant of the classification. As a result, there is really no sure way of knowing whether or not an item will be called up for regulation and taxation. For now, the guidelines offered to the public for comments are too vague for targeted responses.

What Happens Next? How Do I Stay Out of Jail?

As mentioned above, the reclassification of an AR-style pistol to a short-barreled rifle is still possible. To legally possess an SBR, the buyer must register the firearm and pay a tax of $200. The ATF withdrew their notice, so for now, AR-style pistols equipped with stabilizing braces are safe from regulation. Additionally, there is a silver lining: even if the ATF does reclassify these firearms as SBRs in the future, the ATF has at least offered a more concrete framework for determining if a firearm is an SBR or a pistol. At least now law-abiding gun owners will have some guidance on what kind of item is legal to build and which item needs a tax stamp.

If you ever have questions about a particular firearm, especially about a firearm with a stabilizing brace, make sure you talk to an experienced firearm attorney before taking any action.

Author: Curtis Reynolds

DISCLAIMER: The information on this website does not contain legal advice or create an attorney-client relationship. Every case is different, and this material is not a substitute for, and does not replace the advice or representation of, a licensed attorney.

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