[Sean K.]

Factoring Criteria for Firearms with Attached “Stabilizing Braces” | Bureau of Alcohol, Tobacco, Firearms and Explosives

On January 13, 2023, the Attorney General signed ATF final rule 2021R-08F, “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces,’” amending ATF’s regulations to clarify when a rifle is designed, made, and intended to be fired from the shoulder.

www.atf.gov

 

[Sean K.]

Just skimming.... It would seem the 4999 Worksheet is no more. If you have a brace and aren't disabled...it's very likely ATF will find it to be an SBR based on the way they've redefined a "rifle". You have 120 days to SBR if you want the $200 stamp waived.

Not sure how this is legal since the comment period in the Federal Registry was all about the 4999 and now that's no longer even being used so....don't they have to file this new plan with allotted time for public comment in the Registry again? Apparently not.

Best part, I spent $2K to make my guns 4999 compliant. I'd think that would give me standing in a court case, but alas, I don't have the deep pockets required to fight this anyway.

From the link:

"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."

 

[Sean K.]

Another interesting question: ATF has previously said once a pistol becomes a rifle, it cannot go back to being a pistol....and yet they are telling folks to simply remove the brace from what they are calling an SBR.....which means, either the rule is no longer true, or, if you bought brace equipped pistols....and don't register them as SBRs....ATF could later come back with that old rule and prosecute you retroactively (since we're now engaging in unconstitutional ex-post-facto law) for buying/possessing an illegal SBR when you took possession of the braced pistol from your FFL.

And to corroborate what I'm saying above....from the text:

"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."

Enough Chicken Little from me for now.....Happy Friday everyone!

 

[Northern]

Has anyone here tried to submit their form yet? I’m curious whether the XCR-L is already in the database or whether it triggers the “pending research” status while they figure out wtf an XCR is.

 

[Sean K.]

Has anyone here tried to submit their form yet? I’m curious whether the XCR-L is already in the database or whether it triggers the “pending research” status while they figure out wtf an XCR is.

They should at least know what one is....I know several of us have NFA XCRs.

 

[roflcopters]

Don't care
They had 10 years to do this and now there's millions of braced rifles.
Common use was recently determined to be 200k units. I expect this regulation to be tied up in lawsuits until Congress amends nfa or atf decides to pull their head out of their asses. It's 200 pages of lawyer speak that contradicts itself.

 

[Iandv]

It's the atf, you can't expect them to make it make sense. If you're that worried, take your barrel out while the lawsuits play out.

 

[Sean K.]

It's the atf, you can't expect them to make it make sense. If you're that worried, take your barrel out while the lawsuits play out.

I don't plan to do anything until the 120 days expires. And they can shove waiving their $200 fee up their asses.

 

[Sean K.]

Common use was recently determined to be 200k units.

Do you have a source for this? My Google-fu is weak and I couldn't find any reference to a court case or similar where a number was given in regards to common use and firearms.

 

[roflcopters]

Yeah it was the one involving stun guns

 

[Sean K.]

What little I've found so far:

a. Common Use "[W]hat line separates 'common' from 'uncommon' ownership is something the [Supreme] Court did not say." Friedman v. City of Highland Park, Ill., 784 F.3d 406, 409 (7th Cir. 2015) (Easterbrook, J.). However, the Second Circuit has stated that this "common use" requirement is based on "an objective and largely statistical inquiry."

And:

For instance, in N.Y. State Rifle I, the plaintiffs challenging statewide bans on the possession of certain semi-automatic "assault weapons" sought to satisfy the "common use" element by showing that at least four million units of a single, particularly popular model of the weapon had been manufactured and sold. 804 F.3d at 255. The laws' defenders tried to minimize the impact of this raw number by offering up a smaller, percentage-based calculation, emphasizing that the assault weapons at issue represented only "about two percent of the nation's firearms." Id. Faced with these disputed figures, the Second Circuit concluded that, at a minimum, "Americans own millions of the firearms that the challenged legislation prohibits." N.Y. State Rifle I, 804 F.3d at 255. Rather than attempt to determine the matter with further precision, the Second Circuit instead "proceed[ed] on the assumption that [the laws at issue] ban weapons protected by the Second Amendment." Id. at 257.

from: https://www.govinfo.gov/content/pkg...v-01447/pdf/USCOURTS-nynd-1_16-cv-01447-0.pdf

 

[Northern]

Don't care
They had 10 years to do this and now there's millions of braced rifles.
Common use was recently determined to be 200k units. I expect this regulation to be tied up in lawsuits until Congress amends nfa or atf decides to pull their head out of their asses. It's 200 pages of lawyer speak that contradicts itself.

It’s definitely got some contradictory moments.
It’s not as simple as NFA being repealed or struck down— a lot of people don’t realize that SBRs are flat out illegal under the majorly of states’ laws, with an exception carved out for when the owner of an SBR has approval from the feds. So if the NFA is gone, it’s only part of the battle.
It’s very frustrating because obviously there’s no compelling reason to restrict SBRs.

 

[Bret]

If one purchased a braced pistol, didn't do anything to change the configuration and the ATF claims that they have to be registered because they were SBR's all along, how can the individual who purchased it be considered the maker? Wouldn't the maker be the manufacturer? Wouldn't declaring oneself the maker be akin to self incrimination?

I have not seen the form for this. I tried logging in to eforms, but it now says that my password is invalid.

Another question I have is what happens to all of the braced pistols in dealer inventory at the end of the 120 day period? I have a feeling that we might see some discounting to move them from dealer inventory.

 

[Sean K.]

If one purchased a braced pistol, didn't do anything to change the configuration and the ATF claims that they have to be registered because they were SBR's all along, how can the individual who purchased it be considered the maker? Wouldn't the maker be the manufacturer? Wouldn't declaring oneself the maker be akin to self incrimination?

I have not seen the form for this. I tried logging in to eforms, but it now says that my password is invalid.

Another question I have is what happens to all of the braced pistols in dealer inventory at the end of the 120 day period? I have a feeling that we might see some discounting to move them from dealer inventory.

I would think that would be an issue for sure.....you're not technically the maker, but I think for the purposes ATF intends for this process, you'll be the maker on the Form 1. Don't let facts get in the way of filling out legal documents, lol. And you're right....about it violating the 5A, but....I'm not sure how a court would view that if the fact was that you didn't actually "make" this NFA item, the manufacturer did. I'd think knowingly filling out an NFA form incorrectly would be the part that would get you in legal trouble, but WTF do I know?

Inventory can be sold without the brace....as a pistol. There is already discounting happening but the dealers are telling you you will get the brace but it won't be attached to the firearm (in cases where the discounted pistol comes with a brace in the first place).

 

[Northern]

According to the rule and the FAQs, this is a special form 1 just for this 120 day period. You don’t declare yourself as the maker even though in the traditional for.m 1 context you would be the maker — you adopt the original manufacturer unless it’s a homemade weapon. So a Robinson XCR w brace would be done with this special form 1 saying that Robinson is the manufacturer and maker. According to the FAQ for these special form 1 items, there’s also then no extra engraving requirement beyond what the manufacturer engraved (unless, again, it’s a homemade weapon). I didn’t fill a form out yet but that’s what it says in the materials. The FAQs are worth reading.

For dealers, there are other forms and once a weapon is an SBR in the registry, a dealer can sell it with a Form 4. Ie the buyer will have to wait.
It’s a huge mess, unless they have a special automated process in place, it’s very hard to imagine how it won’t take years to clear the queue— but perhaps they will not individually “examine” the way they do with other Form 1 and Form 4 applications.

 

[Sean K.]

According to the rule and the FAQs, this is a special form 1 just for this 120 day period. You don’t declare yourself as the maker even though in the traditional for.m 1 context you would be the maker — you adopt the original manufacturer unless it’s a homemade weapon. So a Robinson XCR w brace would be done with this special form 1 saying that Robinson is the manufacturer and maker. According to the FAQ for these special form 1 items, there’s also then no extra engraving requirement beyond what the manufacturer engraved (unless, again, it’s a homemade weapon). I didn’t fill a form out yet but that’s what it says in the materials. The FAQs are worth reading.

For dealers, there are other forms and once a weapon is an SBR in the registry, a dealer can sell it with a Form 4. Ie the buyer will have to wait.
It’s a huge mess, unless they have a special automated process in place, it’s very hard to imagine how it won’t take years to clear the queue— but perhaps they will not individually “examine” the way they do with other Form 1 and Form 4 applications.

Ah.....thanks for that. I was wondering how they'd get around that issue.

I'm definitely NOT using this RED Form 1 system and freebie tax stamp to register anything....

If the new rule survives the court challenges , I plan to SBR a few things...but I'll pay my $200 per rather than admitting to a felony and having their majesties over at ATF benevolently waive the charges.

 

[JAYDEE10]

After that long and they still don't make sense! Where can I get the full report?

 

[Sean K.]

After that long and they still don't make sense! Where can I get the full report?

https://www.atf.gov/rules-and-regulations/docs/undefined/factoringcriteriaforfirearmswithattachedstabilizingbracespdf/download

 

[Bret]

To me, the below two FAQ's are the most important ones.
15. WHAT DO I PUT IN SECTION 4H, ADDITIONAL DESCRIPTION WHICH ASKS FOR THE REQUIRED
MAKER’S MARKINGS, TO INCLUDE MAKER’S NAME AS REGISTERED, CITY AND STATE AS EACH
WILL APPEAR ON FIREARM?
Answer: Enter the name of the original manufacturer or importer, city, and State as marked on
the frame or receiver of the firearm. If the firearm was made by a non-licensee and has no
markings (e.g., a privately made firearm), then enter the applicant’s name, city, and State from
Section 3b.

18. HOW MUST A FIREARM THAT IS REGISTERED PURSUANT TO FINAL RULE 2021R-08F BE MARKED?
Answer: A firearm that is not marked, such as a privately made firearm (PMF), must be marked in
accordance with the maker marking requirements under 27 CFR 479.102(a) before submission of the
eForm1.
However, if the firearm is already marked, the person registering the firearm pursuant to Final
Rule 2021R-08F may adopt all of the original manufacturer or importer markings when registering
the
firearm, to include the name, city, and state of the original manufacturer or importer as identified on
the frame or receiver of the firearm.

 

[Northern]

To me, the below two FAQ's are the most important ones.
15. WHAT DO I PUT IN SECTION 4H, ADDITIONAL DESCRIPTION WHICH ASKS FOR THE REQUIRED
MAKER’S MARKINGS, TO INCLUDE MAKER’S NAME AS REGISTERED, CITY AND STATE AS EACH
WILL APPEAR ON FIREARM?
Answer: Enter the name of the original manufacturer or importer, city, and State as marked on
the frame or receiver of the firearm. If the firearm was made by a non-licensee and has no
markings (e.g., a privately made firearm), then enter the applicant’s name, city, and State from
Section 3b.

18. HOW MUST A FIREARM THAT IS REGISTERED PURSUANT TO FINAL RULE 2021R-08F BE MARKED?
Answer: A firearm that is not marked, such as a privately made firearm (PMF), must be marked in
accordance with the maker marking requirements under 27 CFR 479.102(a) before submission of the
eForm1.
However, if the firearm is already marked, the person registering the firearm pursuant to Final
Rule 2021R-08F may adopt all of the original manufacturer or importer markings when registering
the
firearm, to include the name, city, and state of the original manufacturer or importer as identified on
the frame or receiver of the firearm.

yeah, that’s what I was referring to,above. I should have cut and pasted to be clear.