ATF issues “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces’”

While this subject is not specifically about South Carolina law, it is an issue that directly affects tens of thousands of South Carolina firearms owners, so we felt the need to share it. The following was written by Guy de Blank.

In mid-December of 2020, the DOJ/ATF issued a notice of proposed rulemaking request that attempted to make pistol stabilizing braces a National Firearms Act (NFA) item. The proposed ruling was poorly constructed and thanks to scathing comments by members of Congress and the flood of comments sent to the ATF by patriots such as yourselves, the proposed ruling was withdrawn two weeks later. 

One of the key campaign promises made by the Biden/Harris team was gun control. While several draconian Bills have been submitted in Congress, none have even reached the floor for a vote because We The People have been constantly contacting our elected officials and admonishing them to vote against these infringements of our Second Amendment rights. Recognizing his abject failure to get anything done, President Biden issued an Executive Action on April 8 that directed the DOJ and ATF to issue new guidance concerning AR pistol stabilizing braces within sixty days. Yesterday, the new document was released, and it is designed to make felons of the owners of the roughly 3-7 million stabilizing braces currently in use in America, unless they submit to the ATF’s will to turn these stabilizing braces into NFA items. That means that they will be treated like silencers, and in order to own one, you must submit an ATF “Form 1” and $200 for a tax stamp. 

In this proposed ruling, the ATF redefines what a rifle is by adding one sentence to the law. ATF intends to amend the definition of “rifle” in 27 CFR 478.11 and 479.11 by adding the following sentence at the end of each definition to clarify what is deemed a rifle. The new sentence would state that “the term ‘rifle’ includes any weapon with a rifled barrel and equipped with an attached “stabilizing brace” that has objective design features and characteristics that indicate that the firearm is designed to be fired from the shoulder, as indicated on ATF Worksheet 4999. 

One of the primary criticisms of the failed December proposed filing form the ATF was that it did not provide objective criteria of what constituted a stabilizing brace that rendered a weapon as a short barreled rifle (SBR). This new proposed ruling is 71 pages long, and includes two worksheets, which constitute the aforementioned form 4999. These are found on pages 16 and 17 of the document and purport to describe the so-called Factoring Criteria For Rifled Barrel Weapons With Accessories* commonly referred to as "STABILIZING BRACES". 

The bottom line on this proposed ruling is that it is nothing more than a gun registry for between 3-7 million AR Pistols in America today that could generate between $600 million and $1.4 billion dollars of tax revenue through the issuance of tax stamps. This proposed ruling needs to face a tsunami of comments from citizens like you and me who oppose this ruling. In part two of this The comment period has not yet opened. Once it does, I will post instructions on where, how, and to an extent what to comment on to send this back to the trash bin where it belongs. For now, I encourage everyone to download a copy of the ruling and study it for yourselves: 

Overview of the proposed ruling: 

The Factoring Criteria are intended to eliminate the heavy criticism the ATF received in December concerning the absence of criteria that the average citizen could use to determine if their firearm would be classified as an SBR. They are also designed to turn virtually every AR-style pistol into an SBR. This is accomplished by introducing subjective language into the Despite the fact that there are now two full pages of factors to be considered, they are almost entirely subjective. 

There are three sections to the Factoring Criteria: 

Section 1 describes the “prerequisites” to determine which weapons require additional evaluation under Sections 2 and 3. If a weight more than 64 ounces and has an overall length between 12 and 26 inches, additional evaluation under sections 2 and 3 are required. Because a traditional handgun such as a Glock 19 or a CZ-75 fall well below the 64 ounce criteria, the clear intent is to focus on AR-style pistols. 

Section Two contains the “Accessory Characteristics,” where the term “accessory is defined as: “As used in this worksheet, the term "accessory" is intended as a general term to describe the marketing of items commonly known as "stabilizing braces" and does not affect any ATF determinations whether such items when attached to a handgun are, in fact, "accessories" not necessary for the operation of the handgun, but which enhance its usefulness or effectiveness, or whether they are component parts necessary to properly operate a weapon, such as a rifle.” The form then goes through four sections to evaluate three criteria, Accessory Design, Rear Surface Area, and Stabilizing Support. Each criteria is scored on a scale from zero up to three points. In the event a device scores four or more points, it is automatically considered to be a rifle that falls within the NFA definition of an SBR. The criteria are clearly designed to drive all stabilizing braces to SBR status. 

Section Three focuses more on the overall weapon, and scores four areas on a zero to four point scale. Several of the criteria in this section are not subjective, which is fine, but the downside is that they tend to score most AR-style pistols as SBR’s. There are several factors that individually can result in a score of four, and thus designates the weapon as an SBR. Examples include any one of the following: 

  • Length of pull greater than 13.5 inches with brace locked in the rearmost position
  • "Cuff-type" design with strap REMOVED
  • "Brace" accessory modified for shouldering
  • Modified Shoulder Stock (originally a Shoulder Stock)
  • Presence of a Secondary Grip (indicating two-handed fire)
  • Weapon as configured weighing more than 120 ounces 

How the reader or the ATF would score a particular brace/gun combination is a mystery, though there are several real examples provided in the document, all of which score as an SBR. Two popular examples provided are the Shockwave Blade brace and the SB Tactical SBA3 brace. Both are scored as SBR’s. The sample worksheets for these are found on pages 35-40. 

In the event a weapon scores as an SBR, the ruling provides five options for the owner: 

  1. Permanently remove or alter the “stabilizing brace” such that it cannot be reattached, thus converting the firearm back to its original pistol configuration (as long as it was originally configured without a stock and as a pistol) and thereby removing it from regulation as a “firearm” under the NFA.
  2. Remove the short barrel and attach a 16-inch or longer barrel to the firearm thus removing it from the provisions of the NFA.
  3. Destroy the firearm. ATF will publish information regarding proper destruction on its website,
  4. Turn the firearm into your local ATF office. (AKA gun confiscation!)
  5. Complete and submit an Application to Make and Register a Firearm, ATF Form 1 (“Form 1”). As part of the submission, the $200 tax payment is required with the application. Pursuant to 27 CFR 479.102, the name, city, and state of the maker of the firearm must be properly marked on the firearm. All other markings, placed by the original manufacturer, should be adopted. Proof of submission of the Form 1 should be maintained by all possessors.

The document discusses a few potential alternatives at the end, and then provides the rationale as to why each was rejected. One alternative was to grandfather all firearms with braces and another was to forgive the payment of the $200 tax stamp fee. These are alternatives that compliant sheep will gravitate towards because they can comply with the law, keep their AR Pistol, and not pay a tax stamp. Although the ATF has already ruled out these alternatives, we must remember that these are a sell-out for future generations, and the temptation to settle for these must be resisted. Another alternative includes making the ruling just guidance, meaning that the rulings would not have the force of law. This too is rejected as a viable alternative in the document.

What Can We Do? 

Clearly, the Biden Administration has realized that they do not have the support necessary to enact new laws, so they are attempting to “interpret” existing laws in order to further their anti-Second Amendment agenda. As law-abiding citizens, we need to make our voices heard on this matter. When the ATF attempted to ban so-called “armor-piercing ammunition” several years ago, the ATF received well over 500,000 public comments against the proposed rule change, and they withdrew the proposal. With the political climate in 2021, we will need more than double that number to have any hope of defeating this first step towards a gun registry which inevitably leads to gun confiscation. You may not own an AR pistol now, but you need to fight this as if you did. Just as we must comment against the proposed ruling on “ghost guns” even if we don’t own one, we need to draw a line in the sand against the slippery slope of gun control at the federal, state, and local level.

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