Legally Armed: V25N4 -The Pistol Brace Saga Continues

Legal News from the Nation’s Capital

By Johanna Reeves, Esq.

In the days leading up to the holidays, the ATF published a public notice of proposed guidance detailing the objective features it considers when classifying firearms with stabilizing braces. Objective Factors for Classifying Weapons with Stabilizing Braces, Docket No. 2020R-10, 85 Fed. Reg. 82516 (Dec. 18, 2020) (the “Notice”). The stated reason for the publication was “to inform and invite comment from the industry and public on the proposed guidance,” a rare move for the ATF. The comment period was not set to close until January 4, 2021, but several days ahead of this date the ATF unexpectedly withdrew the guidance without explanation.[1] Despite the early withdrawal, the Notice generated a lot of public interest with more than 73,000 comments flooding the agency (over 7,000 of these comments are available for public viewing at www.regulations.gov/docket?D=ATF-2020-0001). So why did the ATF withdraw the Notice, and what does the withdrawal mean for industry? We’ll examine those questions, but first let’s review the proposed guidance.

ATF Classification Process

The Notice begins with background information on the firearm classification process of the Firearms and Ammunition Technology Division (FATD) of the Office of Enforcement Programs & Services. FATD is made up of two branches: an industry services branch and a criminal branch. The Firearms Technology Industry Services Branch (FTISB) supports the firearms industry and the public by responding to technical inquiries and by testing and evaluating firearms submitted for classification as to their regulation under the Gun Control Act of 1968 (GCA) and the National Firearms Act (NFA). The Firearms Technology Criminal Branch issues firearm classifications in response to requests from law enforcement or pursuant to an investigation.

The Notice explains that when evaluating a firearm, FATD “examines its overall configuration, physical characteristics, objective design features that are relevant under the statutory definitions of the GCA and NFA, and any other information that directly affects the classification of a particular firearm sample” (Notice at 82517). However, each classification determination pertains only to the specific firearm evaluated “because variations in submissions, applicable statutes, judicial interpretations of these statutes, the manufacturer’s or maker’s intent, and the objective design features supporting that intent, make the general applicability of any particular classification exceedingly rare.” Ibid. The ATF holds to this rule even though firearms may appear to have similar features.

The Notice acknowledges that the law does not require either industry or the public to submit firearms to the ATF for classification. However, the GCA and the NFA define firearm differently, so determining whether a particular weapon is subject to the GCA or the NFA depends on the ATF’s classification, and courts will often defer to the ATF’s technical expertise and statutory interpretation. Consequently, “FATD’s classifications of a particular firearm allow industry members to plan, develop, and distribute products in compliance with the law, thereby reducing their risk of incurring criminal or civil penalties, or the potential for costly corrective actions, including a possible recall by the manufacturer” (Notice at 82517).

According to the Notice, the procedures FATD follows with voluntary submissions to the FTISB (industry and public submissions, not law enforcement) “ensure accuracy in classifying firearms.” First, classification is assigned to a Firearms Enforcement Officer (FEO). The FEO’s evaluation may include disassembly, test-firing or other processes necessary to determine whether the firearm falls under the NFA, GCA or is a “defense article” subject to the permanent import provisions of the Arms Export Control Act.

The FEO produces a draft report which describes the steps taken in the evaluation, the FEO’s analysis and conclusions. Because the draft report is subject to “peer review” by another qualified FEO, the Notice explains that “[n]o classification will depend upon the physical attributes of a particular FEO … as all FEOs apply the evaluation factors objectively, not subjectively, based on the objective features of the submission that demonstrate … the design of the weapon and the intent of the maker or manufacturer” (Notice at 82519).

After the FEO review, the classification is reviewed by the FTISB Chief to further ensure consistency. Presumably the Chief’s review is a paper review of the report itself rather than a physical examination of the firearm.

The Objective Design Features

The Notice lists several features the ATF may take into consideration when evaluating a firearm. These are as follows:

• The type of firearm and caliber – According to the ATF, a large-caliber firearm that is impractical to operate with one hand because of recoil or other factors, even with an arm brace, is likely to be considered a rifle or shotgun.

• The weight and length of the firearm – Like the type and caliber factors above, the ATF will likely consider a firearm that is so heavy to be impractical to fire or aim with one hand to be a rifle or shotgun.

• Length of pull – The ATF interprets the ‘‘length of pull’’ to mean the distance from the trigger to the point at which a stock meets the shoulder. The ATF explains in the Notice that 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. “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” (Notice at 82518).

• Objective design features – The Notice lists design features of the brace itself: (i) comparative function of the attachment when used as a brace compared to its alternate use as a shouldering device; (ii) design of the brace compared to known shoulder stock designs; (iii) the rear contact surface area that can be used in shouldering the firearm compared to surface area necessary of use as a brace; (iv) material of the brace—whether the brace is designed and intended to be pressed against the shoulder for support or used on the arm; (v) whether there are any shared or interchangeable parts with known shoulder stocks; (vi) any feature of the brace that improves the firearm’s effectiveness from the shoulder-firing position without providing a corresponding benefit to the effectiveness of stability and support provided by the brace’s use on the arm.
• Aim point – When using the brace, if the aim point results in an upward or downward trajectory affecting accuracy, the ATF believes this could indicate the attachment was not designed as a stabilizing brace.

• Presence of a secondary grip, scopes and other accessories – Any attachments that indicate to the ATF that the firearm is not a “pistol,” because it is not designed to be held and fired by one hand. For example, scopes that provide eye relief incompatible with one-handed firing may indicate to the ATF that the firearm is not a pistol because the sights or scopes are designed to be used from a shoulder-fire position.

The Notice explains that the listed factors are based on known stabilizing braces and similar attachments, but no single factor or combination of factors is necessarily dispositive because “FATD examines each weapon holistically on a case-by-case basis” (Notice at 82518). Further, the list is not exhaustive because the ATF reserves the option of identifying other factors if relevant to a weapon’s classification, with the ATF having the sole authority to determine what factors are relevant.

The Impact of ATF’s Withdrawal of Guidance

The ATF’s stated purpose behind publishing the Notice is to ensure the public is informed of the “objective features” when considering the making or purchasing of a firearm. “FATD’s classifications allow industry members to plan, develop and distribute products that comply with the law and thereby reduce their risk of incurring criminal or civil penalties, or potentially costly corrective actions, including a possible recall by the manufacturer” (Notice at 82517). Then why did the ATF withdraw this Notice less than a week after publishing it? More importantly, what effect, if any, does the withdrawal have on industry?

The “Withdrawal of Guidance” publication offers no insight into why the ATF did this about-face, other than to cite to its consultation with the Department of Justice and the Office of the Deputy Attorney General. See 85 Fed. Reg. 86948 (Dec. 31, 2020). Regardless, there can be little doubt that the methods and procedures described in the Notice remain in effect regardless of the withdrawal. As an ATF official stated during a recent virtual webinar, the Notice “describes what actually happens.” To that end, it would be a mistake to ignore the Notice even though the ATF technically withdrew it.

However, what may be impacted is how the ATF will deal with current possessors of firearms with stabilizing braces that the ATF determines are subject to the NFA. In the Notice, the ATF explained that there has been widespread “misunderstanding” among industry that a pistol with a stabilizing brace would always be a treated as a pistol. As this is not always the case, because the ATF may classify a braced firearm as being an NFA-controlled rifle or shotgun, the Notice announces the ATF’s plan for persons who acquired affected stabilizer-equipped firearms believing in good faith that those firearms were not subject to the NFA.

As described, the plan would allow affected persons to either: (i) register the firearms, including expedited processing of registration applications and retroactive exemption from the NFA tax, as long as the firearms were made or acquired prior to the publication of the Notice; (ii) permanently remove and dispose of the stabilizing brace; (iii) replace the barrel with one that is at least 16 inches or greater for a rifle, or at least 18 inches for a shotgun; (iv) surrender the firearm to the ATF; or (v) destroy the firearm.

Now that the ATF has withdrawn the Notice, the greatest impact may very well be on the compliance plan and remedial steps described in the Notice. Under a Biden Department of Justice, how likely is it that the ATF will allow affected persons to retroactively register a stabilizer-equipped firearm that the ATF determines is subject to the NFA?

As of the date of this writing (end of January 2021), the ATF has not released anything official since the withdrawal of its guidance relating to the stabilizing brace issue. This brings no comfort to those in industry who bear the scars of ATF discretion. The issue is open and unsettled. We shall see what tomorrow brings.

***The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.

About the Author

Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (reevesdola.com). For more than 17 years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2016, Johanna has served as a member of the U.S. Department of State’s Defense Trade Advisory Group (DTAG). From 2011 through 2020, Johanna served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (F.A.I.R.) Trade Group (fairtradegroup.org). Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.

[1] ATF first posted the withdrawal Notice on its website on December 23, 2020 (sb-criteria-withdrawal-notice-12-23-20.pdf | Bureau of Alcohol, Tobacco, Firearms and Explosives (atf.gov)), but the official withdrawal date is December 31, 2020, as this is when it appeared in the Federal Register (available at www.federalregister.gov/documents/2020/12/31/2020-28930/objective-factors-for-classifying-weapons-with-stabilizing-braces-withdrawal-of-guidance).