Factoring Criteria for Firearms With Attached “Stabilizing Braces”, 30826-30851 [2021-12176]

Download as PDF 30826 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules (i) Create a component history card or equivalent record to establish a life limit of 9,000 total hours TIS. (ii) Thereafter, remove from service any grip assembly before it accumulates 9,000 total hours TIS. (2) Thereafter, no alternative life limits may be approved for any grip assembly P/N 204–011–121–005, P/N 204–011–121–113, or P/N 204–011–121–117. (3) As of the effective date of this AD, do not install any grip assembly having P/N 204–011–121–005, P/N 204–011–121–113, or P/N 204–011–121–117 on any Model 205B helicopter unless the life limit is established in accordance with this AD. (h) Special Flight Permits Special flight permits are prohibited. (i) Alternative Methods of Compliance (AMOCs) (1) The Manager, DSCO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the DSCO Branch, send it to the attention of the person identified in paragraph (j)(1) of this AD. Information may be emailed to: 9-ASW-190-COS@faa.gov. (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/ certificate holding district office. (j) Related Information For more information about this AD, contact Kuethe Harmon, Safety Management Program Manager, DSCO Branch, Compliance & Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222–5198; email Kuethe.harmon@faa.gov. Issued on June 3, 2021. Lance T. Gant, Director, Compliance & Airworthiness Division, Aircraft Certification Service. [FR Doc. 2021–12038 Filed 6–9–21; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF JUSTICE Bureau of Alcohol, Tobacco, Firearms, and Explosives 27 CFR Parts 478 and 479 [Docket No. ATF 2021R–08; AG Order No. 5070–2021] khammond on DSKJM1Z7X2PROD with PROPOSALS RIN 1140–AA55 Factoring Criteria for Firearms With Attached ‘‘Stabilizing Braces’’ Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice. ACTION: Notice of proposed rulemaking; request for comment. AGENCY: VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 The Department of Justice (‘‘Department’’) proposes amending Bureau of Alcohol, Tobacco, Firearms, and Explosives (‘‘ATF’’) regulations to clarify when a rifle is ‘‘intended to be fired from the shoulder.’’ The Department proposes factors ATF considers when evaluating firearms equipped with a purported ‘‘stabilizing brace’’ to determine whether these weapons would be considered a ‘‘rifle’’ or ‘‘short-barreled rifle’’ under the Gun Control Act of 1968 (‘‘GCA’’) or a ‘‘rifle’’ or ‘‘firearm’’ subject to regulation under the National Firearms Act (‘‘NFA’’). This proposed rule is a separate action from the Notice on the Objective Factors for Classifying Weapons with ‘‘Stabilizing Braces’’ published on December 18, 2020, and withdrawn on December 31, 2020. No comments received under the withdrawn notice were considered for this proposed rule, and no comments received pursuant to that notice will be considered as part of this proposed rule. Commenters will need to submit new comments in connection with this proposed rule. DATES: Written comments must be postmarked, and electronic comments must be submitted on or before September 8, 2021. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after Midnight Eastern Time on the last day of the comment period. SUMMARY: You may submit comments, identified by docket number ATF 2021R–08, by any of the following methods— • Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments. • Mail: Denise Brown, Mail Stop 6N– 518, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Ave. NE, Washington, DC 20226; ATTN: ATF 2021R–08. • Fax: (202) 648–9741. Instructions: All submissions received should include the agency name and docket number (ATF 2021R–08) for this notice of proposed rulemaking. All properly completed comments received will be posted without change to the Federal eRulemaking portal, www.regulations.gov, including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the ‘‘Public Participation’’ heading of the SUPPLEMENTARY INFORMATION section of this document. ADDRESSES: PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 FOR FURTHER INFORMATION CONTACT: Denise Brown, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S. Department of Justice, 99 New York Ave. NE, Washington, DC 20226; telephone: (202) 648–7070 (this is not a toll-free number). SUPPLEMENTARY INFORMATION: I. Background The Attorney General is responsible for enforcing the GCA, as amended, and the NFA, as amended.1 This includes the authority to promulgate regulations necessary to enforce the provisions of the GCA and NFA. See 18 U.S.C. 926(a); 26 U.S.C. 7801(a)(2)(A)(ii), 7805(a). The Attorney General has delegated the responsibility for administering and enforcing the GCA and NFA to the Director of ATF, subject to the direction of the Attorney General and the Deputy Attorney General. See 28 CFR 0.130(a)(1)–(2). Accordingly, the Attorney General and ATF have promulgated regulations implementing both the GCA and the NFA. See 27 CFR parts 478, 479. The ATF Director delegated the authority to classify firearms pursuant to the GCA and NFA to ATF’s Firearms Technology Criminal Branch (‘‘FTCB’’) and the Firearms Technology Industry Services Branch (‘‘FTISB’’), within the Firearms and Ammunition Technology Division (‘‘FATD’’), Office of Enforcement Programs and Services (‘‘EPS’’).2 FATD supports the firearms industry and the general public by, among other things, responding to technical inquiries and by testing and evaluating firearms voluntarily submitted to ATF for classification under the GCA or NFA. There is no requirement that the firearms industry or the public submit firearms to ATF for evaluation of the firearm’s proper classification under Federal law. The statutory definitions of ‘‘firearm’’ under the GCA and the NFA are different.3 In 1934, Congress passed the NFA in order to regulate certain 1 NFA provisions still refer to the ‘‘Secretary of the Treasury.’’ However, the Homeland Security Act of 2002, Public Law 107–296, 116 Stat. 2135, transferred the functions of ATF from the Department of the Treasury to the Department of Justice, under the general authority of the Attorney General. 26 U.S.C. 7801(a)(2); 28 U.S.C. 599A(c)(1). Thus, for ease of reference, this notice of proposed rulemaking refers to the Attorney General throughout. 2 Delegation of Authorities within the Bureau of Alcohol, Tobacco, Firearms and Explosives, Delegation Order 1100.168C (Nov. 5, 2018). 3 18 U.S.C. 921(a)(3) (GCA definition of firearm); 26 U.S.C. 5845(a) (NFA definition of firearm). E:\FR\FM\10JNP1.SGM 10JNP1 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS ‘‘gangster’’ type weapons.4 These weapons were viewed as especially dangerous and unusual, and, as a result, are subject to taxes and are required to be registered with ATF.5 26 U.S.C. 5811, 5821, 5841, 5845. The Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), recognized these additional constraints as consistent with the Second Amendment. ‘‘We also recognize another important limitation on the right to keep and carry arms. [United States v. ] Miller[, 307 U.S. 174 (1939),] said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ 307 U.S., at 179, 59 S. Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘‘dangerous and unusual weapons.’’ Id. at 627. As a result of the different definitions in the GCA and NFA, classification of a weapon as a ‘‘firearm’’ under the GCA 4 Congress chose to regulate these firearms by taxing them. Therefore, the NFA is part of the Internal Revenue Code. 5 Courts have recognized the dangerousness and uniqueness of NFA firearms and that possession of unregistered firearms poses a danger to the community. United States v. Jennings, 195 F.3d 795, 799 (5th Cir. 1999) (Congress determined that the unregistered possession of the particular firearms regulated under the NFA should be outlawed because of ‘‘the virtual inevitability that such possession will result in violence’’); see United States v. Cox, 906 F.3d 1170 (10th Cir. 2018) (‘‘[T]he historical tradition of prohibiting the carrying of dangerous and unusual weapons’’ supported limiting the Second Amendment’s protection to weapons ‘‘in common use at the time’’ of ratification. (quoting District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008)); United States v. Marzzarella, 614 F.3d 85, 95 (3rd Cir. 2010) (explaining that a long gun with a shortened barrel is both dangerous and unusual, because ‘‘its concealability fosters its use in illicit activity,’’ and ‘‘because of its heightened capability to cause damage’’); United States v. Amos, 501 F.3d 524, 531 (6th Cir. 2007) (McKeague, J., dissenting) (‘‘[A] sawed-off shotgun can be concealed under a large shirt or coat. . . . [T]he combination of low, somewhat indiscriminate accuracy, large destructive power, and the ability to conceal . . . makes a sawed-off shotgun useful for only violence against another person, rather than, for example, against sport game.’’); Bezet v. United States, 276 F. Supp. 3d 576, 611–12 (E.D. La. 2017), aff’d, 714 F. App’x. 336 (5th Cir. 2017) (‘‘Prior to the enactment of the NFA, Congress recognized that the country struggled to control the violence wrought by ‘gangsters, racketeers, and professional criminals.’ . . . Similarly to the GCA, the NFA was adopted by Congress to establish a nationwide system to regulate the sale, transfer, license, and manufacturing of certain ‘dangerous weapons’ such as ‘machine guns, sawed-off shotguns, sawed-off rifles, and other firearms, other than pistols and revolvers, which may be concealed on the persons, and silencers.’ . . . [T]he NFA targets ‘certain weapons likely to be used for criminal purposes.’ ’’); United States v. Gonzalez, No. 2:10-cr-00967, 2011 WL 5288727, at *5 (D. Utah Nov. 2, 2011) (‘‘Congress specifically found that ‘short-barreled rifles are primarily weapons of war and have no appropriate sporting use or use for personal protection.’ ’’ (quoting S. Rep. No. 90–1501, at 28 (1968))). VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 or the NFA affects how it is regulated under Federal law. For instance, a weapon classified as a ‘‘firearm’’ under only the GCA is subject to interstate controls, but is not subject to making or transfer taxes, and need not be registered in the National Firearms Registration and Transfer Record (‘‘NFRTR’’) as required by the NFA. See 18 U.S.C. 922(a)(1); 26 U.S.C. 5812, 5822, 5841, 5845. In contrast, weapons classified as NFA firearms are generally regulated under both statutes. This includes rifles having a barrel or barrels less than 16 inches in length (also known as ‘‘short-barreled rifles’’) and shotguns having a barrel or barrels less than 18 inches in length (also known as ‘‘short-barreled shotguns.’’). Under the NFA and implementing regulations, the term ‘‘rifle’’ is defined to mean ‘‘a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger and shall include any such weapon which may be readily restored to fire a fixed cartridge.’’ 26 U.S.C. 5845(c); 27 CFR 479.11. In addition to the NFA requirements, the GCA also imposes specific restrictions on the transportation, sale, and delivery of ‘‘short-barreled rifles’’ and ‘‘shortbarreled shotguns.’’ 18 U.S.C. 922(a)(4), (b)(4). Therefore, 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. Generally, when FATD evaluates a submitted firearm sample, it examines its overall configuration, physical characteristics, and 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 configuration as presented by that sample. The numerous configurations, materials, and designs of modern firearms require thorough examination and consideration to ensure proper classification. Even though firearms may have a similar appearance (i.e., shape, size, etc.), an ATF classification of a firearm pertains only to the particular sample submitted because of the vast variations in submissions, the application of different relevant statutes and judicial interpretations of these PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 30827 statutes, the manufacturer’s or maker’s stated intent,6 and the objective design features supporting or undercutting that stated intent that may be legally and technically significant. In recent years, some manufacturers have produced and sold devices (‘‘stabilizing braces’’) designed to be attached to large or heavy pistols and that are marketed to help a shooter ‘‘stabilize’’ his or her arm to support single-handed firing. The first individual to submit a forearm brace to determine if it changed the classification of a ‘‘pistol’’ advised ATF that ‘‘the AR15 pistol is very difficult to control with the one-handed precision stance due to the forward weight of the weapon and the recoil of the 5.56, 7.62 or 7.62[sic]x39 NATO caliber rounds.’’ 7 There, the submitter explained that the intent of the brace was to facilitate onehanded firing of the AR–15 pistol for those with limited strength or mobility due to a disability, and to reduce bruising to the forearm when firing with one hand. According to this individual, the brace concept was inspired by the needs of combat veterans with disabilities who still enjoy recreational shooting but could not reliably control heavy pistols without assistance. However, whereas some accessories marketed as ‘‘stabilizing braces’’ may make it easier for a person to fire a weapon with one hand and would not result in a determination that the firearm with the attached brace is a ‘‘rifle,’’ there are other accessories also marketed as ‘‘stabilizing braces’’ that may be attached to a weapon platform for the purpose of circumventing the GCA and NFA prohibitions on the sale, delivery, transportation, or unregistered possession and taxation of ‘‘shortbarreled rifles.’’ As described below, the addition of an accessory that is 6 See Sig Sauer, Inc. v. Brandon, 826 F.3d 598 (1st Cir. 2016) (noting that, in the firearms classification context, it is appropriate for ATF to consider ‘‘a part’s design features . . . as part of the inquiry into’’ the intended use of that part). The court noted that ‘‘[s]uch an objective approach to ferreting out a party’s intent is a very familiar one in the law. See, e.g., United States v. Siciliano, 578 F.3d 61, 77 (1st Cir. 2009) (noting that objective evidence is useful to ‘buttress or rebut direct testimony as to intent’); cf. Washington v. Davis, 426 U.S. 229, 253, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976) (Stevens, J., concurring) (‘Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor.’); United States v. Gaw, 817 F.3d 1 (1st Cir. 2016) (‘[T]he law is long since settled that the prosecution may prove its case without direct evidence of a defendant’s guilty knowledge so long as the array of circumstantial evidence possesses sufficient persuasive power.’ (quoting United States v. O’Brien, 14 F.3d 703, 706 (1st Cir. 1994))).’’ 7 Classification request from NST Global LLC (Nov. 8, 2012). E:\FR\FM\10JNP1.SGM 10JNP1 30828 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS marketed as a ‘‘stabilizing brace’’ to a pistol does not guarantee that the resulting firearm will still be classified as a pistol. Indeed, classifying a firearm based on a limited or singular characteristic (i.e. the marketing label of the manufacturer that the item is a ‘‘stabilizing brace), ‘‘has the potential to be significantly overinclusive or underinclusive.’’ 8 Because short-barreled rifles are among the firearms considered unusual and dangerous, subjecting them to regulation under the NFA, it is especially important that such weapons be properly classified. Indeed, firearms with ‘‘stabilizing braces’’ have been used in at least two mass shootings, with the shooters in both instances reportedly shouldering the ‘‘brace’’ as a stock, demonstrating the efficacy as ‘‘short-barreled’’ rifles of firearms equipped with such ‘‘braces.’’ 9 The GCA and NFA regulate ‘‘firearms’’ and, with limited exceptions, do not regulate individual components. Accordingly, ATF does not classify unregulated components or accessories alone under the GCA and NFA.10 However, components or accessories, when attached to a firearm, can affect the classification of a firearm because: (1) A component’s or an accessory’s likely use may be relevant in assessing the manufacturer’s or maker’s purported intent with respect to the design of a firearm; and (2) the design of a component or an accessory may result in a firearm falling within a particular statutory definition. Examples include: (1) The attachment of a forward secondary grip 11 to a ‘‘pistol,’’ where the resulting firearm would no longer be designed to be held and fired with a single hand; and (2) a wallet holster 12 8 Innovator Enters., Inc. v. Jones, 28 F. Supp. 3d 14, 25 (D.D.C. 2014). 9 See, e.g., Cameron Knight, Dayton shooter used a modified gun that may have exploited a legal loophole USA Today (published Aug. 5, 2019, updated Aug. 6, 2019) https://www.usatoday.com/ story/news/nation/2019/08/05/dayton-shooterused-gun-may-have-exploited-legal-loophole/ 1927566001/ (the firearm used in a shooting killing 9 people and wounding 14 had a ‘‘pistol brace’’ used to ‘‘skirt[ ]’’ regulation of short-barrel rifles); Melissa Macaya et al., 10 killed in Colorado grocery store shooting, CNN (updated Mar. 23, 2021), https://www.cnn.com/us/live-news/bouldercolorado-shooting-3-23-21/h_0c662370eefaeff05 eac3ef8d5f29e94 (reporting that the firearm used in a shooting that killed 10 was an AR–15 pistol with an ‘‘arm brace’’). 10 ATF does, however, make these types of classifications under the Arms Export Control Act (‘‘AECA’’), 22 U.S.C. 2778, with respect to the permanent importation of ‘‘defense articles.’’ 11 See U.S. v. Black, 739 F.3d 931, 934–36 (6th Cir. 2014). 12 See FFL Newsletter, August 1997, at 5–6 (https://www.atf.gov/firearms/docs/newsletter/ federal-firearms-licensees-newsletter-%E2%80%93august-1997/download). VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 where the handgun can be fired while inserted, thus changing the classification of these handguns into an ‘‘any other weapon.’’ See 26 U.S.C. 5845(e). A ‘‘stabilizing brace,’’ of which there are several variations, is yet another example of a component or an accessory that may change the classification of the firearm to which it is attached. ATF’s longstanding and publicly known position is that a firearm does not evade classification under the NFA merely because the firearm is configured with a device marketed as a ‘‘stabilizing brace’’ or ‘‘arm brace.’’ 13 When a purported ‘‘stabilizing brace’’ and an attached weapon’s objective design features indicate that the firearm is actually designed and intended to be fired from the shoulder, such weapon may fall within the scope of the NFA, requiring registration and payment of tax. Accordingly, ATF must evaluate on a case-by-case basis whether a particular firearm configured with a ‘‘stabilizing brace’’ bears the objective features of a firearm designed and intended to be fired from the shoulder and is thus subject to the NFA. The use of a purported ‘‘stabilizing brace’’ cannot be a tool to circumvent the NFA (or the GCA) and the prohibition on the unregistered possession of ‘‘shortbarreled rifles.’’ As the purpose of the NFA is ‘‘to regulate certain weapons likely to be used for criminal purposes,’’ United States v. Thompson/Center Arms Co., 504 U.S. 505, 517 (1992), ATF cannot ignore the design features of a firearm that place it within the scope of the NFA’s regulation. This is the case even when a manufacturer characterizes or markets a firearm accessory in a manner that suggests a use that does not correspond to its objective design. The characterization of an accessory by the manufacturer, including assertions in advertising, is not dispositive. If ATF’s evaluation of a submitted sample demonstrates that the objective design features of the firearm, as configured, do not support the manufacturer’s purported intent and, in fact, suggest an altogether different intent, ATF will 13 See ATF, Open Letter on the Redesign of ‘‘Stabilizing Braces,’’ (Jan. 16, 2015); and a letter to industry counsel clarifying the 2015 Open Letter, Letter for Mark Barnes, Counsel to SB Tactical, LLC, from Marvin G. Richardson, Assistant Director, ATF Enforcement Programs & Services, 90000:GM, 5000, Re: Reversal of ATF Open Letter on the Redesign of ‘‘Stabilizing Braces’’ (Mar. 21, 2017) (made widely available to the public on various websites, for example, see https://johnpierceesq.com/wpcontent/uploads/2017/03/ATF-Letter-March-212017.pdf and https://www.sigsauer.com/wpcontent/uploads/2017/04/atf-letter-march-212017.pdf). PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 classify the firearm based on the objective design features, as Federal law requires. See Sig Sauer, Inc. v. Brandon, 826 F.3d 598, 601–02 (1st Cir. 2016). It is estimated that manufacturers of stabilizing braces have sold 3 million stabilizing braces since 2013. ATF has observed that the development and production of rifled barrel weapons with ‘‘stabilizing braces’’ has become more prevalent in the firearms industry and that, consequently, requests for classifications for this kind of firearm design have also increased. ATF has classified several firearms equipped with ‘‘stabilizing braces’’ and the objective features used to make these classifications have been described in letters to the industry as well as in criminal cases. However, ATF has received criticism for not more widely publishing the criteria and for not publishing a definitive approach in the application of that criteria. Therefore, to aid the firearms industry and public in understanding the criteria that FATD considers when evaluating firearm samples that are submitted with an attached ‘‘stabilizing brace’’ or similar component or accessory, ATF proposes a worksheet to be entitled Factoring Criteria for Rifled Barrel Weapons with Accessories 14 commonly referred to as ‘‘Stabilizing Braces,’’ ATF Worksheet 4999 (‘‘Worksheet 4999’’). The purpose of this worksheet is to allow individuals or members of the firearms industry to evaluate whether a weapon incorporating a ‘‘stabilizing brace’’ that they intend to submit to FATD or offer for sale will be considered a ‘‘shortbarreled rifle’’ or ‘‘firearm’’ under the GCA and NFA. FATD will use the criteria within ATF Worksheet 4999 and resulting point value when evaluating and classifying a submitted firearm. These criteria and worksheet do not apply to firearms with a smooth bore that use shotgun ammunition. These types of firearms, commonly referred to as ‘‘pistol grip shotguns,’’ were never designed to be fired from one hand (e.g., Mossberg Shockwave, Remington Tac14 As used in this rule and 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. Furthermore, use of that term does not affect any determinations whether such items are ‘‘defense articles’’ under the Arms Export Control Act. Please direct all inquiries as to possible liability for the firearms and ammunition excise tax, 26 U.S.C. 4181–82, to the United States Department of Treasury, Alcohol and Tobacco Tax and Trade Bureau (‘‘TTB’’). E:\FR\FM\10JNP1.SGM 10JNP1 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS 14). ATF has always classified these weapons as GCA ‘‘firearms,’’ not shotguns or pistols, as they do not incorporate a stock, like a shotgun, and are not designed to be fired from one hand, like a pistol. Thus, the addition of a ‘‘stabilizing brace’’ does not assist with single-handed firing, but rather redesigns the firearm to provide surface area for firing from the shoulder. II. Application of ATF Worksheet 4999 Similar to the Factoring Criteria for Weapons, ATF Form 4590 (‘‘Form 4590’’), which is used for the importation of pistols and revolvers, the proposed ATF Worksheet 4999 has a point system assigning a weighted value to various characteristics of the fully assembled firearm as configured when submitted for classification. A firearm that accumulates less than 4 points in Section II (Accessory Characteristics), and less than 4 points in Section III (Configuration of Weapon), will generally be determined not to be designed to be fired from the shoulder, unless there is evidence that the manufacturer or maker expressly intended to design the weapon to be fired from the shoulder. A firearm that accumulates 4 points or more in Section II or Section III will be determined to be designed and intended to be fired from the shoulder. As a preliminary factor when evaluating a submitted sample, certain prerequisites (i.e., weapon weight and overall length) will be applied to determine if the firearm will even be considered as a possible pistol or immediately determined to be a rifle, as defined by the applicable statutes. As discussed, ‘‘stabilizing braces’’ were originally marketed as intended to assist persons with disabilities and others lacking sufficient grip strength to control heavier pistols. Therefore, attaching a ‘‘stabilizing brace’’ to a typical pistol, where no assistance is necessary, or attaching one to a firearm so heavy or difficult to control that onehanded shooting is impractical or inaccurate, regardless of the manufacturer’s stated intent, will change the design of the firearm into a rifle intended to be fired from the shoulder. Indeed, the purported ‘‘stabilizing brace’’ would have no design function other than to facilitate the firing of the weapon from the shoulder. On the proposed Worksheet 4999, objective design characteristics or features that are common to rifles, features associated with shoulder stocks, and those features limiting the ability to use the ‘‘stabilizing brace’’ as an actual brace are assigned point VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 values. These point values range from 0 to 4 points based upon the degree of the indicator, explained as follows: • 1 point: Minor Indicator (the weapon could be fired from the shoulder) • 2 points: Moderate Indicator (the weapon may be designed and intended to be fired from the shoulder) • 3 points: Strong Indicator (the weapon is likely designed and intended to be fired from the shoulder) • 4 points: Decisive Indicator (the weapon is designed and intended to be fired from the shoulder) As in ATF Form 4590, the point values associated with particular features or designs are based upon their relative importance in classifying the firearm under the law. In this case, design factors that are more likely to demonstrate a manufacturer’s or maker’s intent to produce a ‘‘short-barreled rifle’’ and market it as a ‘‘braced pistol’’ accrue more points than those that reveal less evidence. There are certain inherent features that may support a design as a ‘‘stabilizing brace’’ and also a shoulder stock. For example, a large amount of surface area on the rear of a purported ‘‘stabilizing brace’’ may indicate that it is designed to be fired from the shoulder and facilitate its use as a shoulder stock. However, that characteristic may also be the result of incorporating substantial stabilizing support that envelopes the shooter’s arm (e.g., the original SB15 ‘‘stabilizing brace’’), allowing one-handed firing of a large pistol. These complexities cannot serve merely to exempt all firearms with purported ‘‘stabilizing braces’’ from classification as ‘‘rifles.’’ Indeed, the statutory definitions of ‘‘rifle’’ in the GCA and NFA describe that type of weapon as one ‘‘intended to be fired from the shoulder.’’ 18 U.S.C. 921(a)(7); 26 U.S.C. 5845(c). The ATF Worksheet 4999 is necessary to enforce the law consistently, considering the diversity of firearm designs and configurations. As stated above, if the total point value of the firearm submitted is equal to or greater than 4—in either Section II or III—then the firearm, with the attached ‘‘stabilizing brace,’’ will be determined to be ‘‘designed or redesigned, made or remade, and intended to be fired from the shoulder,’’ or a ‘‘rifle’’ under the GCA and NFA. The firearm will be classified as a ‘‘short-barreled rifle’’ under the GCA and NFA, and as an NFA ‘‘firearm,’’ if the attached barrel is also less than 16 inches. The ATF Worksheet 4999 will provide the public and the firearms industry with a detailed methodology for ensuring legal compliance. PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 30829 By using ATF Worksheet 4999, ATF is ensuring uniform consideration and application of these criteria when evaluating firearm samples with attached ‘‘stabilizing braces.’’ ATF also notes that some makers or manufacturers have received a classification of a ‘‘stabilizing brace’’ without it being attached to a firearm or may have received a classification for a firearm that would be considered a NFA firearm under these criteria. Therefore, any maker or manufacturer who has received a classification prior to the effective date of the rule is encouraged to resubmit the firearm with the attached ‘‘stabilizing brace’’ to ensure that the prior classification is consistent with this new rule and to avoid any possible criminal or tax penalties for the continued manufacture, transfer, or possession of a NFA firearm. As iterated above, FATD’s classifications allow industry members to plan and develop products that comply with the law, and thereby reduce their risk of incurring criminal or civil penalties, or the need for corrective actions, including a recall by the manufacturer. ATF recognizes that these factors may affect industry members and members of the public, as they may manufacture or already own firearms with a ‘‘stabilizing brace’’ attached. ATF wants to assist affected persons and industry members and provides the additional information in this proposed rule to aid them in complying with Federal laws and regulations. III. Proposed Rule Given the public interest surrounding these issues, ATF is proposing to amend the definition of ‘‘rifle’’ in 27 CFR 478.11 and 479.11, respectively, by adding a sentence at the end of each definition. The new sentence would clarify that the term ‘‘rifle’’ includes any weapon with a rifled barrel and equipped with 15 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. Because the objective design features and characteristics considered will be on a new worksheet to be used by ATF, the Department is also publishing this proposed worksheet—ATF Worksheet 15 Cf., e.g., United States v. Charles, 469 F.3d 402, 407–08 (5th Cir. 2006) (analyzing whether there was sufficient evidence that a firearm was ‘‘equipped with’’ a silencer); United States v. Thompson, 82 F.3d 849, 851–53 & n.5 (9th Cir. 1996) (discussing when a firearm may be ‘‘equipped with’’ a silencer); United States v. Rodriguez, 53 F.3d 545, 546 (2d Cir. 1995) (analyzing whether a firearm was ‘‘equipped with’’ a silencer). E:\FR\FM\10JNP1.SGM 10JNP1 30830 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules 4999—as part of the preamble to this proposed rule and inviting interested members of the public and industry to provide comment. Similar to ATF Form 4590, used to determine if a firearm is sporting for purposes of importation, ATF proposes to use ATF Worksheet 4999 to determine if a firearm is designed and intended to be fired from the shoulder, as follows: Proposed Factoring Criteria for Rifled Barrel Weapons With Accessories Commonly Referred to as ‘‘Stabilizing Braces’’ BILLING CODE 4410–FY–P l,J;S; DEPARTMENT.QF.JUSTICE BUREAUOFALCOHOL,TOBACCO,.FJREARMSAND.EXPLOSIVES FACTORING.CRITERIA•FORRIFLED·.•BARREL.WEAPONSWITH• ,\C:C~RIES* commonly referredto as 14$TABtiJZING BRACES" SUMMARY: Thls·ehar.tllsts·thetacfutsi't)constdersw11eneva1ua~a·tlrearm:witk•.an.accesS(lty(coD11t10nty·teferrllll·f.o11s;a;•stablllz~braces~),tot cliiss!RctiUiililifider·theNiiUiifiillFlr!!iitifisAct(NFA}•·m:lbeGtifi.Coiitrol•ACt(GCA). )11/;!TE: 111e.!;lurellt!.<!f.All:pl\i>1;1'."'1a~co,Fjrellllllll,mdExpfosi\le~reservesthe.rigbftopr,;clude.;clas~ificaiitm.l!.sa·p~l:with·a•"~ilizi.irgl)races!'t~r811}'~.thatatbir:yesa11 apPatentqnaiifyinjf.sc~butis•an·atteitiptto•makei·••sirottA>li!teledrifle"and.ciiturnvenfthe·oca. nrNFA, ~.1\stis¢dirttlljswlil'k,;hect;llieieiilt·"~~(e!l$or')i"·•jair\tt!nd~·ailt&<rii:llillfflll.fodestjil>~llie.ill!irl<etitig.!lflt~·~lyliliowriu."stiihiliiili~.biiites."~rid.d~i:iit,ufec(iifii Atf·detcrminations.whetherrucldtemswhenattaciretito,a·lnindlitin•ace:lnfatt. i•actessorie~·notne1:e~sicyfoc.ihe. opetatioriofiliehan<1gun,.•hurwhicli:enhance:itsusclltlness or effectiveness; a: wttethti'theyilfe. c11mpttiehtpiirtalie1:es$afytcii>rc(le\"ly q;erate a ~liti'l; such as a.ml~ ~erinore; use tiflhllttenn aces n~ alf~.ranydeteriniriations: wheth.er.suchitems.ace."dlifensearii<:l~lllldertheArrrlsilxpoci.eontrotAct l'~;<lirectallinqulrieslil!fupl>ssl~Ielial,ility·forthel"ireanns:andammuniiionexdsetax; 26U:S.C. seclioriii4 lln -418216 llie United States:Dq,artlintitmTteiisw;',Alcohollrid·TO!iatciiToxiiiid Trade Bliniiiil (ITB): Weapon: Explanation: [Su:ifu.bility of "Brae~• tllie] SECZTIQN'T~.PREREQUISll:FS 1. the.weanon must weigh at least.6,lounces. *Weighedwithmagazines,unloadedlaccessoriesremoyed *Leh2th measured with lill non°hi>mtioolil.atci:ssorlesten1oved \Veaponmustmeet bo.th Prel'.equlslte!lln..order:toproceed·to StrllonIL POOO · PdINT 'INDIVIDUAL·CHARACTERISTICS VALUE SUB 'i'()TAL 1---------------------1 [Detenninatiort ofuse as a "Brace" vs.; Stoc~J ACCESSORY DESIGN Norbased•on.aknown:should\ir-stockdesiglt Jncorporates• moulder; s.tock desum feature(s) 0 1 .Based on. a kn()\\'11 shoulder stock desilm 2 11.ElUlSURFACE.~ Devicfinciirpoi.'atesfeiillli'estb·jlti:'Vtfituseii&.ashoulderilli>de'Vice: Minim.ized Rein- SJJrfa~e. la~g feature;; to·diSCoutage shouldering R~.SurlaceusclulforshouldCl'ing.the·fkt81J11 ADJlJSTABILITY N'on-adjustal:ile, fixed design Adjustlibie·ortelesco1>irig.attachment·designedforshoiilda:irtg: 0 2 STABILIZING SUPPORT 0 OR: «Cuff-type'; design thatFULLYwraps around arrn 0 2 0 "Guff-type" design that PARTIALLY wraps around arm "Guff-type" design that FAILS to wrap around arrn 2 "Split-stock'' configuration not designed to wnqr around shooter'sann 3 .....______..__s_E_c_T_I_o_N_u_._s_co_RE_A_CHIE __v_E_D_:_____,,,.....__~SCORE1----------------------------1 Section II Must Score LESS than 4 in. order to oroceed to Sectfon III A.1F WORKSHEET4999 (5330.5) (5-21) VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 PO 00000 Frm 00036 Fmt 4702 Sfmt 4725 E:\FR\FM\10JNP1.SGM 10JNP1 EP10JN21.015</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS Countfflllilance Design lliat Folds cr"8til1Jl Rear Contact Surface OR: "Fin- type" design WITH Ann. Strap "Fin- type" design WITHOUT Ann Strap Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules 30831 [Detem1inationifweapon is shoulder fired] SECTIONm - Configuration of Weapon LEl'(GTII·OFPULL , w(AcceS'!ory.inReai:most''.Lockedl'osition" Less than 10,112..Jnches '"'Measured.from the. center•of·the. ttiJu!;erto.the center. of th.e !ihotilder.·device•l"stabilizillg brace'.' 0 ll.il12:butunder 12•1/Z Inches 12,1./2butu11derU-lf2Inches. 3 I ATTACHMENTME1HOD Standant.AR..tone Pistol Buffer Tube (6-6-1/2 Inches) 0 Adjusta\lle Rifle Buffer Tube Adjusta!lle PPW,typegiiide,lllils Exten'cledAR~ypePistillBilffer··Tube. z Inclusion .of'l'oldlng Adapter extending lellgth of puU Use. of''Spacers" to. extend lellgth ofpull Modifi~dt;ltouliier stoclcwith re11treplatedby "stabillzillg· brace" Attacllmmtml:thodereat,es an.uliusable aim:point•·(slant} 2 3 3 "STABILIZING. BRACE!'.MODU'ICATIONSJ··CONFIGURA.TION ''Qlff-l:voe" ot"fin ctype" .dt$igti:with strap. to() iihort to futtction '·'Cilf'f,typ¢'or;.flnctype''.designWithstrap.•madeoufofelast.icm!\teria:l ~Fili0 twe" tackiltgan llflitstta{i '.'Cuff-type~ <lesign with sttap REMOVED ·"Bra:ce'' a~cessory rrtodifitd fo(sh6utderillg. ModifiedShoulderStock•(originally a:Shoulder·Stock) ·z 4 4 4 PERIPHERALACCESSORIES 2 Presence oh Hand Stop 4 Presence of Rifle•type,Baclc-up I Flip-up. Sights/Or no sights Presence of'ReflCK Sight with ETS. Maimifier w/Limited.Eye-Relief Presence of aSillht/Scope.with Eye Relief Jnclllllpalible with one-handed. fll"e . Prest11<:eohb1pod/mom1pod weap6li'as•contigoredweighing.•morcfthliil1•20 oorttes I 1 2 4 ·2 4 ""Wei@edwitfrma2SZin~•uriloaded SECTION.]IISCORE,ACHIEVED: (,(sCbiiE.()FlPOi~Q~.MOimlNl)ICATESA ~Jl()ULDEk.-Eilm'QJ>~ CLASSIFICATION: BILLING CODE 4410–FY–C khammond on DSKJM1Z7X2PROD with PROPOSALS Section I. Prerequisites As a preliminary factor when evaluating a submitted sample, certain prerequisites will be applied to determine if the firearm, without the attached ‘‘stabilizing brace,’’ will even be considered a suitable weapon for the brace. As described above, ‘‘stabilizing braces’’ were originally marketed as being designed to assist persons with disabilities and others lacking sufficient grip strength to control heavier pistols. Accordingly, FATD will first examine the submitted sample’s weapon weight and overall length. Weapon Weight. Weapon weight is a key prerequisite in determining whether a ‘‘stabilizing brace’’ is appropriately used on a weapon. A traditional unloaded 1911-type pistol weighs approximately 39 ounces. Similarly, the VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 polymer Glock 17 weighs 39 ounces when fully loaded. Weighing just over 2 pounds, these firearms are easily held and fired with one hand without the need for a ‘‘stabilizing brace,’’ as such ‘‘braces’’ are designed. This stands in contrast to the weight of the type of pistols or other firearms for which the ‘‘stabilizing brace’’ was designed to be attached. The AR-type pistol, a popular large handgun design, for example, weighs approximately 5 to 7 pounds (i.e., 80 ounces to 112 ounces) based on its configuration. Such weight is more difficult to manipulate and to keep on target, indicating the ‘‘stabilizing brace’’ is in fact intended to assist one-handed fire. Based on the weights stated above, firearms weighing less than 64 ounces/ 4 pounds (weighed with unloaded magazine and accessories removed) are not considered weapons suitable for use PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 with a ‘‘stabilizing brace’’ accessory because they are more easily held and fired with one hand without the need for a ‘‘stabilizing brace.’’ Overall Length. The overall length of a weapon is relevant in classifying it as a ‘‘rifle’’ or a ‘‘pistol’’ because, as a firearm becomes excessive in length, it is increasingly difficult to fire with one hand. The AR-type pistol has an overall length between 18 and 25 inches, depending on barrel length (due to the necessary inclusion of the buffer tube). Other large frame pistols range between 14 and 22 inches, such as the AK-type DRACO, HK SP5, and CZ Scorpion EVO. Firearms possessing an overall length between 12 and 26 inches may be considered pistols for which a ‘‘stabilizing brace’’ could reasonably be attached to support one-handed fire. Firearms with an overall length of less E:\FR\FM\10JNP1.SGM 10JNP1 EP10JN21.016</GPH> ATI'\JYQRKSHEE1'4999(5l305)(5C21) 30832 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS than 12 inches are considered too short to indicate any need for a ‘‘stabilizing brace.’’ Conversely, firearms exceeding 26 inches in overall length are impractical and inaccurate to fire one handed, even with a ‘‘stabilizing brace,’’ due to imbalance of the weapon. Section II. Accessory Characteristics If the submitted firearm sample meets the prerequisites of weighing at least 64 ounces and having an overall length between 12 and 26 inches, FATD will analyze various attachment characteristics. For FATD to determine that a weapon with an attached ‘‘stabilizing brace’’ is not, in fact, designed and intended to be fired from the shoulder, the accessory must not have the characteristics of a shoulder stock. These characteristics are as follows: Accessory Design. The design of the accessory when attached is a factor in determining whether the item is actually a ‘‘stabilizing brace’’ or is intended to be utilized as a stock, making the firearm designed to be fired from the shoulder. Specifically, because the NFA or GCA could be circumvented by substituting a ‘‘stabilizing brace’’ for a traditional shoulder stock on a ‘‘shortbarreled rifle’’ (‘‘stabilizing braces’’ sometimes share close similarities with known stocks), the more features a purported ‘‘stabilizing brace’’ has in common with known shoulder stock designs, the more points it will accumulate. ‘‘Stabilizing braces’’ that are not based on any known shoulder stock design will accrue zero points. ‘‘Stabilizing braces’’ that incorporate one or more shoulder stock design features (e.g., adjustment levers or features that allow for the length of the device to be varied in a manner similar to an adjustable shoulder stock, sling mounts,16 or hardened surfaces) will accrue 1 point. Lastly, ‘‘stabilizing braces’’ that are modified versions of known shoulder stock designs will accrue 2 points. Rear Surface Area. Rear surface area is a design characteristic referring to the area on the rear of the purported ‘‘stabilizing brace.’’ Since the purpose of a ‘‘stabilizing brace’’ is to be secured to a shooter’s forearm, there is no advantage for a manufacturer of ‘‘stabilizing braces’’ to include substantial surface area on the rear of the design unless the brace is attached 16 The location of a sling or quick detach (QD) mount is an indicator as to the intended use of the accessory. A sling attachment at the rear of the device could be a deterrent from shouldering the weapon, whereas some accessories incorporate QD mounts consistent with known shoulder stock designs. VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 to a firearm in order to redesign it to be fired from the shoulder. As with the other design characteristics, rear surface area is a consideration that must be evaluated in light of the overall design. Clearly, larger, more substantial ‘‘stabilizing braces’’ may have more surface area in which to shoulder a firearm. However, while smaller, less substantial ‘‘stabilizing brace’’ designs may have reduced surface area, this shouldering area may still be similar to known shoulder stock designs upon which they are based. The reduced contact area of the flaps to the shooter’s forearm, and the surface area necessary to shoulder the weapon work in tandem to indicate whether the purported ‘‘stabilizing brace’’ is, in fact, a shouldering device. Any ‘‘stabilizing brace’’ that incorporates a surface area feature that clearly makes it difficult to use as a shouldering device will accrue zero points. A ‘‘stabilizing brace’’ accessory that is designed with only a minimal rear surface area (e.g., a ‘‘fin-type’’) with which a weapon could possibly be shouldered will accrue 1 point. A ‘‘stabilizing brace’’ accessory that is designed with a rear surface area sufficient to shoulder the firearm, or approximating the rear surface of known shoulder stocks, which allows shouldering the firearm, will accrue 2 points. Finally, a ‘‘stabilizing brace’’ accessory that features material clearly designed to increase rear surface area to facilitate shoulder firing will accrue 3 points. Adjustability. When ATF was first asked to classify an adjustable ‘‘stabilizing brace,’’ it responded that adjustability is ‘‘a feature commonly associated with butt stocks/shoulder stocks as well as firearms designed and intended to be fired from the shoulder.’’ 17 Although ATF ultimately determined that adjustability, in and of itself, is not determinative of a ‘‘stabilizing brace’s’’ design function on a firearm, it remains a significant indicator that the device is designed and intended to be shouldered. Weapons that do not incorporate an adjustable ‘‘stabilizing brace’’ will accrue zero points, while ‘‘stabilizing brace’’ designs that are adjustable will accrue 2 points. Stabilizing Support. To be effective, a ‘‘stabilizing brace’’ must provide support for the weapon through sufficient and stable contact with the shooter’s forearm. Original ‘‘stabilizing brace’’ designs used a substantial amount of hardened material intended to contact a significant portion of the shooter’s forearm, and a strap to secure 17 See PO 00000 FTISB Letter 303984, at 3 (Nov. 30, 2015). Frm 00038 Fmt 4702 Sfmt 4702 the device and limit movement. Later iterations substantially reduced these design features, mimicking the outline of low-profile (i.e., slim design) shoulder stocks. These later designs resulted in less contact with the forearm and instead rely heavily upon a Velcro strap to perform the function of the more substantial flaps present in earlier designs. While the strap may be used to tighten the minimal polymer flaps on top of the arm, these later designs were far less effective at providing stabilizing support—in contrast to the originally stated intent—and increase bruising to the forearm when firing with one hand. These later designs were also similar to the tactical shoulder stocks widely advertised and sold in the marketplace. Stabilizing support is a vital characteristic because it provides evidence to evaluate the purported purpose of the attached device, which is to provide shooters with forearm support for firing large, heavy handguns. It is therefore important for ATF to consider the various ‘‘stabilizing brace’’ designs and the forearm support they provide. ATF has categorized these different ‘‘stabilizing brace’’ designs into three broad categories: Counterbalance, ‘‘Fin-type’’, and ‘‘Cuff-type.’’ Counterbalance designs 18 utilize the weight of the weapon as a lever to push the ‘‘stabilizing brace’’ into the forearm and provide stability for firing. These designs do not typically include a strap because the ‘‘stabilizing brace’’ itself contacts the side and bottom of the shooter’s arm and is held in place by the weight of the firearm, using the shooter’s hand as the fulcrum. However, whether characterized as a method of storage or otherwise, there is no forearm stabilizing purpose in a Counterbalance design that folds closed such that it can no longer be used as a ‘‘stabilizing brace.’’ Indeed, this type of design may create rear surface area such that the ‘‘stabilizing brace’’ may be suitable only as a shoulder stock when closed. The folding feature of the Counterbalance design stands in contrast to the purported intent of the device. This feature presents some evidence that a firearm equipped with a Counterbalance ‘‘stabilizing brace’’ is intended to be fired from the shoulder and therefore will accrue 1 point. ‘‘Fin-type’’ designs incorporate a thin ‘‘blade’’ designed to rest against the shooter’s arm, and feature a minimal, thin rear surface area. Although originally submitted with the explanation that these devices would incorporate an arm strap or that a sling 18 See, e.g., US Patent 10,690,442 B2 June 23, 2020. E:\FR\FM\10JNP1.SGM 10JNP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules could be wrapped around the shooter’s arm and provide additional support,19 the majority of these accessories are now marketed and sold without such a strap, thus virtually eliminating their effectiveness as a ‘‘stabilizing brace.’’ ‘‘Fin-type’’ accessories that do not incorporate an arm strap of suitable length or functionality will accrue 2 points, while those that incorporate an arm strap long enough to secure a person’s forearm consistent with the purported intent will not accrue any points (zero). ‘‘Cuff-type’’ designs are by far the most prevalent of all ‘‘stabilizing braces,’’ consisting of over two dozen different unique designs. ‘‘Cuff-type’’ ‘‘stabilizing braces’’ have evolved over the past decade, from non-adjustable, large articles into compact designs, clearly based on, or modified from, shoulder stocks. ‘‘Cuff-type’’ ‘‘stabilizing braces’’ vary greatly in design and the classification of firearms with these types of ‘‘stabilizing braces’’ is the most complex of the three categories. The original ‘‘cuff-type’’ designs incorporated large ‘‘arm flaps’’ to fully envelop the forearm and also a strap to limit movement of the cuff by tightening it. These designs were contoured so that a shooter’s forearm could easily fit through the cuff and the strap would tighten around the cuff to provide additional arm support. These designs were clearly devised to secure the firearm to the shooter’s forearm and were effective in doing so. Therefore, a ‘‘cuff-type’’ ‘‘stabilizing brace’’ that fully wraps around the shooter’s forearm (e.g., SB15/SBX–K) will not accrue any points (zero). Later designs of the ‘‘cuff-type’’ braces possessed arm flaps that lacked contouring and did not provide a suitable opening for the shooter’s forearm. These designs relied on softer materials that, while saving on production costs, mimicked the design of popular shoulder stocks and did not provide the same support for singlehanded firing of large handguns. These designs could be secured to the shooter’s forearm, but the brace rested on top of the arm, and relied on the Velcro strap to secure the firearm to the shooter’s arm. Because they are less effective at the stated purpose of stabilizing one-handed firing, it is appropriate that weapons with such devices attached accrue points as these are more evidently designed and intended for another purpose, which is to be fired from the shoulder. Such ‘‘cuff-type’’ ‘‘stabilizing braces’’ that partially wrap around the shooter’s 19 See FTISB Letter 302672 (Sept. 8, 2014). VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 forearm (e.g., SOB/SB-Mini) will accrue 1 point. Finally, those ‘‘stabilizing braces’’ incorporating arm flaps that do not wrap around the shooter’s forearm (e.g., SBA3/SB–PDW), thereby providing no arm support, will accrue 2 points. Further, with the later ‘‘split stock’’ design, which is another ‘‘cuff-type’’ design where the flaps lack arm contouring, ‘‘stabilizing brace’’ developers simply used known or existing stocks, added a slot down the center of the stock, or otherwise slightly altered the original shoulder stock design and contended that these were ‘‘stabilizing braces’’ like any other ‘‘cufftype’’ design. However, the purpose of such designs is clearly indicated by the fact that they are far more effective when utilized as a shoulder stock than a ‘‘stabilizing brace.’’ These types of ‘‘stabilizing braces’’ are difficult to attach to the arm, provide minimal support in one-handed shooting, and are not effective to use as a ‘‘stabilizing brace.’’ As such, any ‘‘stabilizing brace’’ that is configured as a ‘‘split-stock’’ (e.g., SBT/FS1913) will accrue 3 points. Section III. Configuration of Weapon This section will be used to evaluate the entire weapon including how the ‘‘stabilizing brace’’ is mounted to the firearm as well as the effectiveness of the brace in single-handed firing as opposed to firing from the shoulder. It will also consider all of the accessories that have been added to affect firing that will be used in conjunction with the ‘‘stabilizing brace.’’ Length of Pull. Length of pull is a common measurement of firearms that describes the distance between the trigger and the center of the shoulder stock. This is a measurement that may be used to fit a firearm to a particular shooter. Generally, taller shooters require a longer length of pull and shorter shooters require a shorter length of pull. Adjustable shoulder stocks are commonly available. Patents, advertising material, and other resources make clear that adjustability is meant to facilitate changing the length of pull.20 Such length of pull measurements are far less relevant when a pistol is involved because a shooter merely requires a device that reaches from the back of the firearm to the forearm. Far less variation exists between shooters in this way. A firearm 20 See, e.g., U.S. Patent 7,762,018 B1 (July 27, 2010) (in which invention ‘‘provides structure for mounting the stock body and contains structure for the pre-set system utilized by stock bodies which are adjustable for length. The length of pull system comprises a series of pre-drilled threaded holes 56, which are off-set from a center axis. . . .’’). PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 30833 with a ‘‘stabilizing brace’’ will accrue more points the further it is positioned rearward, indicating that it is intended for use as a shouldering device. Firearms with ‘‘stabilizing braces’’ that incorporate a length of pull of less than 101⁄2 inches will not accrue any points (zero). However, a length of pull that is between 101⁄2 but under 111⁄2 inches will accrue 1 point, while 111⁄2 but under 121⁄2 will accrue 2 points, 121⁄2 but under 131⁄2 will accrue 3 points, and a length of pull of 131⁄2 inches or more will accrue 4 points as this is a standard length of pull for rifles and is a decisive indicator that the firearm is intended to be fired from the shoulder. Attachment Method. A ‘‘stabilizing brace’s’’ attachment method often provides critical insight as to how a firearm is intended to be used. ‘‘Stabilizing braces’’ attached to a standard-length AR-type pistol buffer tube (extending 6 to 61⁄2 inches from the rear of the firearm) will not accrue any points (zero). Use of an AR-type pistol buffer tube with adjustment notches, an adjustable rifle buffer tube, or an adjustable PDW-type guide rail, will accrue 1 point as each indicates the ability to adjust the ‘‘stabilizing brace.’’ An extended AR-type pistol buffer tube (greater than 61⁄2 inches), folding adaptors, and the use of ‘‘spacers’’ are all indicators that the ‘‘brace’’ is being positioned to serve as a shouldering device because it increases the ‘‘length of pull,’’ thereby allowing a shooter to fire the weapon from the shoulder. Therefore, such firearm will accrue 2 points. Additionally, a shoulder stock that has been modified to incorporate a ‘‘stabilizing brace,’’ or any attachment method that results in an unusable aimpoint when the ‘‘stabilizing brace’’ is attached is also a strong indicator the weapon is actually intended to be shoulder fired and will accrue 3 points. ‘‘Stabilizing Brace’’ Modifications/ Configuration. ‘‘Stabilizing brace’’ accessories that have been modified from their original configuration will accrue additional points. Any ‘‘cufftype’’ or ‘‘fin-type’’ accessory, which incorporates an arm strap too short to wrap around the shooter’s arm or is manufactured from an elastic material (eliminating stabilizing support), will accrue 2 points, as will a ‘‘fin-type’’ accessory lacking an arm strap. Further, if these modifications reconfigure the device into a shoulder stock, 4 points will be accrued. These modifications could include taping or strapping the arm flaps together on a ‘‘cuff-type’’ ‘‘stabilizing brace,’’ or adding shouldering surface to a ‘‘fin-type’’ ‘‘stabilizing brace.’’ E:\FR\FM\10JNP1.SGM 10JNP1 30834 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS Peripheral Accessories. ATF has examined multiple firearms that include peripheral accessories, often added by the end user, that indicate the weapon is not designed and intended to be held and fired by a single hand. Such accessories include secondary grips, hand-stops, flip-up rifle-type sights, sights/scopes with limited eye-relief, and bipod/monopods. Certain hand-stop attachments have been determined to protect a shooter’s off-hand from being placed in front of the barrel and do not, in and of themselves, redesign a pistol to be fired with more than one hand. However, the presence of such an attachment is an indication the weapon may not be intended to be fired with a single hand, but rather intended to be fired from the shoulder. As such, the presence of a hand-stop will result in 2 points being accrued. Further, the presence of any secondary grip on a weapon with a ‘‘stabilizing brace’’ accessory changes the classification from a one-handed to a two-handed weapon, thereby disqualifying it from being classified as a ‘‘braced pistol,’’ and resulting in the subject firearm accruing 4 points. Installed sights are also indicators as to the intended use of a firearm with an attached ‘‘stabilizing brace.’’ ATF has examined numerous AR-type firearms with ‘‘stabilizing brace’’ accessories that lack any sight or that incorporate rifletype flip-up or back-up iron sights (‘‘BUIS’’), which are only partially usable when firing the weapon with one hand. As such, the presence of this type of sight or lack of any sight will accrue 1 point. Further, firearms that incorporate a reflex sight (e.g., Red Dot) in conjunction with a flip-to-the-side (‘‘FTS’’) magnifier with limited eye relief (distance between the shooter’s eye and rear of sight/scope) will accrue 2 points. Finally, any weapon incorporating a sight or scope that possesses an eye relief (distance between the shooter’s eye and rear of sight/scope) incompatible with one- VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 handed firing will accrue 4 points, as this is a decisive indicator that the ‘‘stabilizing brace’’ is being utilized as a shouldering device. For example, a sight would be incompatible with onehanded firing if it cannot be seen clearly when held at arm’s length, thus showing the weapon must be shouldered in order for the sight to be used. Firearms that incorporate or are designed to rest on bipod/monopod accessories generally are not designed and intended to be held and fired by a single hand. Much like hand-stops, bipods/monopods do not necessarily, in and of themselves, change the classification of a ‘‘pistol’’ when installed. However, bipods/monopods offer ‘‘stabilizing support’’ to the firearms to which they are attached, which is often counter-intuitive to an attached ‘‘stabilizing brace,’’ for example, Counterbalance ‘‘stabilizing brace’’ designs. Therefore, attachment of a bipod/monopod will accrue 2 points, regardless of the type of ‘‘stabilizing brace’’ attached. Finally, any complete firearm with an installed ‘‘stabilizing brace’’ that weighs more than 120 ounces (71⁄2 pounds), incorporating end user accessories, will be considered too heavy to be fired with one hand, and will accrue 4 points. The firearm will be weighed as configured, with an unloaded magazine. The upper limit of 120 ounces takes into account that in order to fire the weapon, the shooter will insert a loaded magazine, which will typically add an additional 16–32 ounces. For example, a loaded 30-round AR-type magazine with .223 caliber ammunition weighs approximately 16 ounces (1 pound), while a loaded 30-round AK-type magazine with 7.62x39 caliber ammunition weighs approximately 29 ounces (1.8 pounds). Additionally, a 20round magazine with .308 Winchester caliber ammunition weighs approximately 23 ounces (1.4 pounds). These are typical types of magazines used with one-handed ‘‘stabilized’’ PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 firing. Firearms may reach a weight where the use of a ‘‘stabilizing brace’’ provides insufficient support for onehanded firing. Indeed, the existence of a ‘‘stabilizing brace’’ on firearms that are too heavy to be ‘‘intended to be fired by one hand’’ indicates that the purported ‘‘stabilizing brace’’ is actually intended as a shouldering device. Even if a weapon accrues less than 4 points in each section, attempts by a manufacturer or maker to circumvent Federal law by attaching purported ‘‘stabilizing braces’’ in lieu of shoulder stocks may result in classification of those weapons as ‘‘rifles’’ and ‘‘shortbarreled rifles.’’ While some manufacturers have recognized that there is a market advantage in designing and selling ‘‘short-barreled rifles’’ as ‘‘pistols’’ to customers seeking to avoid tax and registration requirements, ‘‘stabilizing braces’’ are not a method by which the Federal statutes may be circumvented. Therefore, efforts to advertise, sell, or otherwise distribute ‘‘short-barreled rifles’’ as such will result in a classification as a ‘‘rifle’’ regardless of the points accrued on the ATF Worksheet 4999 because there is no longer any question that the intent is for the weapon to be fired from the shoulder. IV. Application of the Proposed Worksheet to Common ‘‘Stabilizing Braces’’ For the purpose of explaining how the factoring criteria in Worksheet 4999 would be implemented, ATF applied the Worksheet 4999 to three weapons with common ‘‘stabilizing braces’’ attached: An AR-type firearm with an SB-Mini accessory, an AR-type firearm with an SBA3 accessory, and an ARtype firearm with a Shockwave Blade accessory. The results of that process follow. A. AR-Type Firearm With SB-Mini Accessory BILLING CODE 4410–FY–P E:\FR\FM\10JNP1.SGM 10JNP1 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules 30835 lfS. DEPARTMENT OFJUSTICE BUREAU OFALCOHOL, TOBACCO;FlREARMs.ANb EXPLOSIVES FACTORINGCRITERIA FOR RIFLED.BARREL WEAPONSWITII ACCESSORIES~commonly ref~rrell to as "STABIUZING BRACES~ SUMMARY: This chart lists lhe factots·A TF ronsiders when evaluating a fire11rm wilh an acressoty (coinmoilly refetred to as a ~stabiliting braces~):for dassU'lcatton under lhe Nattonal Fltearms Att (NFA)ot tile Gun Control Act (GCA), NOTE: The·Btlreau of,i\Jcoluil, Tobacco, Firearms andl~1,:losives.reserves: the right to preclude classificati\lns a pistolwilh a ''stabilizing bracell''.:fl)rllll)1,I1reann that achieves. 1lll awarent qmilifying swre.but is an attem()tto.niake a"short:batreledrifle"ilnd:citctnnventtheGCA or:NFA. ~As used in thfa wNksheet; th~ tenn 'ilccessr,t)f' ·1s intm.ded as igeneral teh1t t.o destribt, the marketing of iteri\s ciinnriciiily kiii>Wn iis "sial:iiiizlng brace$'' alidiloesiiQt aJietf iniy ArF deterniiniitions\Vheiher such iiems when attached tq a h1llldgon are. ,n fact. ''acc.,.sories'' not necessary for the operation ofthe fumdgun, but whichenhanc.e its usefuiiiess or diectiveness, or-.i1eibc,rfueyaretornponmtpartsnecessary to prq;,i-ly q;cn,\e • wei.poo; such llS a rifle Furiblmiori,; usei:il'i.battenn doesnotaffectllll)1.deteh1tirtatioos '>fiethci'. such .items.are. "defense· articliiswiinderthe Arms Exp"ort Cori!rol Act: Please direct a1r inquiries as to possible liability for the fimirtns md ammliilition eltcise tax, 26 U.1!cC. settions.4181.4182 trr the·United States Department ofTreaSUIY, ·Alcohol and.Tobacco Tax, 1111d Trade Bureau (Till), Weapon: Torolanation: [Suitabilitv of "Brace." use l SECTIONl-.PREREOUISITES ,. Weiehed with maelizinll' -·unloaded I accessories removed ,. Length measured with all.noq ,operation!ll accessories r.emoved .91 ounces 1. The WellDOII mustwei!!lntt le3sl64 otmceS 2. The weapon must have an .overall lene:th between.·12 and 26. Inch.es :Weannn must meet both Prereaulsites In order .to nroceed to Sectton.Il 25'-1/8 INDlVlDUAL CHAMCTERJSTI.GS POINT POINT VALUE SUB 1---------------------- 'roTAL SECTION II - Accessory Characteristics IDetennination of use as a':Brace" vs. Stock] ACCESSORY DESIGN 1"ot based on.a known should;:r stuck desiert Incorporates shoulder stock design feature(s) 0 Bl!Sed on .a. 1:)10\Vll sh.oulder stock desien 2 0 l REARSURFACEAREA Device inrotporates featuresto prevent use. runt shouldering device 0 Minimized RCffl' Surfllce lacking featuresto discourage shouldering Rear.Surface useful for should;:ringlhefirl:arm Material added to increase. Rear Surface for shoµlderiug 2 ADJUSTABILITY Non,adjurutble, fixed design Adjustable or telescoping 1111:achment designed.for shouldering 2 0 2 STABlLIZING StiITbRT Countci'balance Design - Non.Folding 0 Coont«'Qalance. Desi~ .thaI.Folds crfflllng Rear Contact Surfac~ OR: 1 ~Fin- type" design WTIH Ann Strap "Fins type" design WITHOUT Arm Strap 0 2 OR: "''Cuff-type" design that FULLY wraps ~ound ann: "Cuff-type'' design that PARTIALLY wraps around. ann: 1 "cuff,type" design \hat FAILS to wrap ~ound ann 2 ''.Split-stl:lck," collfiguration nQt d~ign~d,(l wrap llfOUnd shooter's arm 3 Q SECTI◊l'il•llSCORE.ACflIEVED: 3 Section II Must SCore. LESS•than 4 In ordet·to procee1lcto Section III * Weapon proceeds to Sectionlll VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 PO 00000 Frm 00041 Fmt 4702 Sfmt 4725 E:\FR\FM\10JNP1.SGM 10JNP1 EP10JN21.017</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS ATFWORKSHEET·49!19(,33.Q;5),(5-21) 30836 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules [Detennination if weapon is.shoulder firedl SECTION ill - Confi~lll'.ation of Weapon LENG:rH OF PULL - wl;\ccessory.in R!'81: mqst ''Locked P~ition" Less than w,112 Inches 10-1/2 bnt under 11-112 luches ll-1/2 butunder 12-112 Inches 12,J12 btiluriderB-1/2 luches *Measur.ed ftomthe center of the triAAert.o.the center ol'the itionldei: device.I "stabilizing brace'' 0 1 2 2 3 B-1/2 Inches and Over 4 ,\TTACHMENT METHOO Stand\lrd AR,tvoe Piatol Euffer Tube (6·6,1/2 Inches) AR-type Pistol Buffer Tube.with Adjustment Notches (KAK,type) Atljustable Rifle Buffer Tube Adjustable PD.W-type guide rails E.ittendedARctype PistQI Buffer Tube 0 0 1 l I 2 Indusion.ofFoldmgAdapterextendinglength ofpull Use -Of"Spacers'' to extend length of pull Modified shonldei: stock with ~· replaced by''stabilizing bract<' Attachment method creates m unusable aim,point(slant) 2 2 3 3 "STABILIZINGBRACE'' MODIFICATIONS/ CONFIGURATION 'X)}ff.typt<' or"fin•type" design.with straptoo shott t-0 function ''.Cuff,type'' or '<fin,type"· design with strap made ont ofelastic material. "Fin.type" lacking Bit Mill strap "Cuff~e''. design with strap REMOVED '.'Brace'' acc.essory mod'lfied for: shouldering Modified Shonlder Stock (originally .a Shoulder Stock) 2 2 2 4 4 4 PERIPHERAL ACCESSORIES a Presence.of Hand Stop Presence of asecondary.<3rip (indi<,ating,two-handedfire) Presence ofRifle•typeBack-up/Flip-up Sights I Orno sights 2 4 I Presl'!lce<if Reflea: !light wilh FT$. Magnifier.wt Limited Eye,Relief Presmce of a Sight/Scope with Eye. Relief Incompatible with one-handed fire Presence of a bipod I monopod Weapon as confignredweigh ing:more· than.120 ounces l 2 4 2 4 SECTION II[SCOREACHIEVED: (A SCQ.RE OF JP<>iNTSOR.MOkEINDICATESJI SH<JtJiljJ!k..Ff.REDD'Esl(;NJ * W ei!Uled with ma,razinc - nnloaded 3 CLASSIFICATION: Pistol with "stabilizin2 brace'' ATF WORKSHEET 4999. (5330,5)(5-21) VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 E:\FR\FM\10JNP1.SGM 10JNP1 EP10JN21.018</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS SB-Mini Accessory Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 the firearm would accrue 1 point, as the flaps on the ‘‘Cuff-type’’ design only partially wrapped around a shooter’s forearm. As the firearm would score 3 points in Section II, it would be able to proceed to Section III. Under Section III, the firearm would score a total of 3 points. In Length of Pull, the firearm was determined to possess a length of pull of approximately 113⁄8 inches; thereby it would accrue 2 points. In Attachment Method, the firearm would accrue 0 points as the SB-Mini accessory is attached using a standard-length ARtype pistol buffer tube. In the ‘‘Stabilizing Brace’’ Modification category, the firearm was determined to PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 have no modifications, and would accrue 0 points. Finally, in the Peripheral Accessories, the firearm possessed rifle-type flip-up sights, which would accrue 1 point. As evaluated, no other accessories were installed onto the firearm. The firearm, in this configuration, would score a total of 3 points in this section, and accordingly would be determined not to be designed and intended to be fired from the shoulder. Therefore, since each section is evaluated separately, the firearm, as submitted, would be classified as a pistol with an attached ‘‘stabilizing brace’’ accessory. B. AR-Type Firearm With SBA3 Accessory E:\FR\FM\10JNP1.SGM 10JNP1 EP10JN21.019</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS Applying the criteria in Section I, the above firearm was determined to weigh approximately 91 ounces and have an overall length of 251⁄8 inches, and thus would be a suitable host firearm for a ‘‘stabilizing brace’’ accessory. In Section II, the firearm would score a total of 3 points. The firearm with attached SBMini (sometimes referred to as the SBLMini) accessory would score 0 points in Accessory Design for not being based on a known shoulder stock design. In Rear Surface Area, the firearm would accrue 2 points for possessing a rear surface useful for shouldering the firearm. In Adjustability, the firearm would accrue 0 points for not being an adjustable design. Finally, in Stabilizing Support 30837 30838 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules U.S. DEPARTMENT OFJUSTICE BUREAU OF ALCOHOL, TOBACGO;FIREARMS ANDEXPLOSIVES FACTORINGCRlTElUA.FORRIFLED•BARRELWE:APONSWITH ACCESSQRIES* totnmonly refer~d to as "ST.IBIIJZING BR,\CF.S"' SUMMARY: This chart lists·the ractorsATF considers when evaluating a fltearln With an accessory (ctnnmonlyrd'erred toas a •stabllizfngbraces"l ftll' cla!!Slneauo:n.undtrthe:Nattonat Ftreatm$Act {NFA)ot theGun Control Act (GCA). NOTE. TheBllf',311 ()fAlcohol, Tobacco, Firearms and.Explosives reserves. !he rightto precludeclassification as apistol,wilh a; "stabilizingbraces" :fur any ftrearmlhat achieves. an apparent qualifying score hut ,s .an attemptto m\lkea:"shirt-barrel'ed rifle" and drcumventihe GCA or NFAa *As ilsedtn lhiswiiki,hecl, ihe teith "accessixy" is iritendedas.agenmil teith·to desci'ilie:tl1e marketing o(ifonisc<mrtioiilykiiiiwii.iis"stabifizirigllraces" imildoesiiotaffect l!lly ATF deternlinations: whether such items wlieti illtacbedto a handgun are, infact, ,;atcessorielt' rtotnece~soifyfoc.tlie .opert,tioo of thefo,n~, but which i!:ilharice. itirnsefulness er etretliveneiis; rrwh~ertlier·are componentp1!ds·rieces.saiy to pro{ierly operate a Weapon, sili:h all a.rifle. Ftiitheriiiore, use.oflhat·tert:n does iiotaffect auy·.de@nttilitions whe:thersucliitem1n1re "dl,Thrlse articles;; U!1der tlie Amis E><poct Control Act Pleas~. direct Iii! mquiries. as to possilile lialiility f\ll' thefireamls l!lld ammurution excl$e tax; 26U.S.R sci:tiotis21181-4l82 to lheUtiited States l)i;iiarttin:t\tcifTreas\Jfy; Akohi:ilimd Tooacci:iTilx ,ind.Trade Bureau (TIB). Weapon: Explanation: AR-lypew/SB;Q acc.essocy SECTIO~I · PREREQlJISITES [Suitability of "Brace'' use] 1. The weanon must welgll atieast 64 ounces. *Weighed with magazine -. unloaded / accessories removed .. Length mC11$1Ji'edwith 11on-operational accessories rem·oved. 89ounces 2, The weapon must have an oyerall len<!th between .12 lllld 26 llitlielic Weapon must meet both.Prerequlliltes In, order. to pl'j)CCe() to Section IL an 25-1/8 POINT VALUE INDIVIDUAL'CHARACmRISTICS POINT SUB ----------------------1 .TOTAL SECTION II - Attessocy Chai'acteristics [Determination of use as a '°Brace" vs. Stock] ACCESSORY DESIGN Not based on a known shouldet stock design lhcorporates moulder stock design fe;rture(s) Based ona shoulder stock desi!!U 0 known 2 REAR SURFACE AREA Devite iricotpotat~ fel1tllfes t\l preventuse a's a shouldeting device Minimize'dRellfSurfac~ lackingfeatUre$to discouf.jgeshouldering RearJ>urface useful for shouldering thefireomn Material added to increase Rear Surface for shoulderinil ADJUSTABILITY Non-adjustable, rtXed design Adjustable or telescoping attachment designed for. shouldering () 2 3. 3 0 2 STABILIZING SUPPORT .cotmtwalimce Design - NoiFFolding .couuterbalancebesign.thai.Fotds,creatine: Rear Contact.Sulfa~ 2 0 OR: ''.Fin- type~design WITIIArm Strap "Fin- type" design 0 wrrnoUT Arm Strap 2 OR: ~Culf-type".design that.FULLYwraps.arourtd.ann "GufHype''designUiatPARTIALLXwrapSatill)lidlittti 0 l 2 z ''Split-stock'' ci;mfiguration not desiguedto wrap around. sh~olel:'s ann SECTIONII.SCOREACHIEVED: *Wt,Joon fails to oro~eed fo Section Ill Sectlon.IlMust. ScoreLES!tthan 4 ln.order,to proc;eedtltSectlonIIl VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 PO 00000 Frm 00044 Fmt 4702 Sfmt 4725 E:\FR\FM\10JNP1.SGM 10JNP1 EP10JN21.020</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS A.TI' WORKSHEET4999.(S3:305):(5~21) Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules SECTION ill - Configuration of Weapon 30839 [Determination if weapon is shoulder fired] * Measured from the center of the trigger lo the center of the LENGTH OF PULL -·w/Atte§ory in-Rear most "Locked Position" Less than 10-1/2 Inches 10-1/2 but under 11-1!2 Inches 11-1/2 but under 12-1/2 Inches 12-1/2 but under 13-1/2 Inches 3 13-1/2 Inches andOver 4 shoulder device/ "stabilizine. brace" 0 1 2 3 ATTACHMENT METHOD Standard AR-type PistotBuffer Tube (6-6-lf2 Inches) •.\R:type.Pistol Buffer Tube with MjuSl])lent Notches (K..-',K-type) Mjustable Rifle Buffu- Tube Adjustable PDW-type guide rails Extended AR-type Pistol Buffer Tube 0 1 1 l 1 2 Jnclusion ofFolding Adapter eKtending length of pull Use of"Spacers" to extend length.ofpull Modified shoulder-stock with rear replaced by "stabilizing brace" 3 Attachment method creates an unusable aim-point (slant)_ 3 2 2 "STABILIZli"IG BRACE" MODIFICATIONS I CONFIGURATION ''Cuff-type' or "fin-type'.' design w1th strap too short to function "Cuff-type" or "fin-type" designwith strap made out of elastic material "Fin-type" lacking an arm strap "Cuff-type" design with strap REMOVED "Brace" accessory modified for shouldering 2 .2 2 4 4 Modified Shoulder Stock (originally a Shoulder Stock) 4 PERIPHERAL ACCESSORIES ·Presence of a Hand Stop 2 Presence of a Secondary.Grip (indicating two-handed fire) 4 Presence of Rifle-type Back-up J Flip-up SighIB 1 Or no sighIB 1 Presence ofReflex Sight with FTS Magnifier wt Limited Eye-Relief Pre_sence of a Sight/Scope with Eye Relief Incompatible with one-handed fire ·Presence of a bipod I monopod 2 4 Weapon.as configured weighing more than 120 ounces 4 1 2 * Weighed with magazine - unloaded SECTION Ill SCORE ACHIEVED: i,4 SCORE OF 4POINTSOR MORE INDICATES A SHOULDER-FiREDDitsIGN) 5 Rifle /"'short-barreled rifle" CLASSIFICATION: A1F WORKSHEET 4999(5:130.5}(5-21) VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 E:\FR\FM\10JNP1.SGM 10JNP1 EP10JN21.021</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS SBA3 Accessory Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS ATF evaluated an AR-type firearm with the SBA3 accessory, and would determine the above firearm to be designed and intended to be fired from the shoulder. Applying the criteria in Section I, the firearm was determined to weigh approximately 89 ounces and have an overall length of 251⁄8 inches, and thus would be a suitable host firearm for a ‘‘stabilizing brace’’ accessory. In Section II, the firearm would score a total of 8 points, precluding it from proceeding to Section III. The firearm with attached SBA3 would accrue 1 point in Accessory Design for incorporating known shoulder stock features, such as an adjustment lever, a Quick Detach (QD) sling mount, and incorporation of hardened polymer-type material. In Rear Surface Area, the firearm would accrue 3 points, as the SBA3 accessory has VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 additional rear surface material added for use in shouldering. In Adjustability, the firearm would accrue 2 points for being an adjustable design. Finally, in Stabilizing Support the firearm would accrue 2 point, as the flaps on the ‘‘Cufftype’’ design fail to wrap around a shooter’s forearm. Although an evaluation under Section III is not necessary as the firearm would have already been determined to be designed to be fired from the shoulder, the firearm was further evaluated for informational purposes. Under Section III, the firearm would score a total of 5 points. In Length of Pull, the firearm was determined to possess a length of pull of approximately 121⁄2 inches; thereby it would accrue 3 points. In Attachment Method, the firearm would accrue 1 point as the SBA3 accessory utilizes an M4-type rifle buffer tube. PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 Under the ‘‘Stabilizing Brace’’ Modification category, the firearm was determined to have no modifications, and would accrue 0 points. Finally, in Peripheral Accessories, the firearm possessed rifle-type flip-up sights, and thereby would accrue 1 point. As evaluated, no other aftermarket components or accessories were installed onto the firearm. The firearm, in this configuration, would score a total of 5 points in this section, and would be determined to be designed and intended to be fired from the shoulder. Therefore, the evaluated firearm, as submitted, would be classified as a ‘‘rifle.’’ Further, having a rifled barrel less than 16 inches in length, the firearm would be properly classified as a ‘‘short-barreled rifle’’ and an NFA ‘‘firearm.’’ C. AR-Type Firearm With Shockwave Blade Accessory E:\FR\FM\10JNP1.SGM 10JNP1 EP10JN21.022</GPH> 30840 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules 30841 U.S. DEPARTMENT OF JUSTICE BUREAU OF ALCOHOL, TOBACCO, F1REARl\,fS AND EXPLOSIVES FACTORING CRITERIA FOR RIFLED BARREL WEAPONS WITH ACCESSORIES* commonly referred to as "STABILIZING BRACES" SUl\1MARY: This chart lists the ractors ATF considers when evaluating a firearm with an accessory (commonly referred to as a "stabilizing braces") for classification under· the National Firearms Act (NFA) or the Gun Control Act (GCA). NOTE: The Bureau of Alcohol, Tobacco, Firearms and Explosives reserves the right to preclude classification as a pistol with a "stabilizing braces" for any firearm that achieves an apparent qualifying score but is an attempt to make a "short-barreled rifle" aud circumvent the GCA or NFA. •As used in this worksheet, the term "accessory" is intended as a general term to describe the marketing of items conimonly known as "stabilizing braces" and does not affect auy ATF determinations \\-itether 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 wt,ether 1hey are component parts necessary to propet'ly qierate a weapon, such as a rifle. FUltherm,~·e, use of that term does not affect any determinations whether such items are "defense articles" under the Arms Export Control Act. Please direct all inquiries as to possible liability for the firearms and aunnunition excise tax, 26 U.S.C. sections 4181-4182 to the United States Department ofTreasmy, Alcohol aud Tobacco Tax and Trade Bureau (TTB). "Rxnlanation: Weaoon: Manufacturer/Model SECTION I - PREREQUISITES l. The weapon must wele;h at least 64 ounces. 2. The weapon must have an overall length between 12 and 26 Inches. fSuitabilitv of "Brace" usel * Weighed with magazine - unloaded/ accessories removed * Length measured with all non-operational accessories removed 93ounces 23 Weapon must meet both Prerequisites In order to proceed to Section IL POINT VALUE INDIVIDUAL CHARACTERISTICS POINT SUB TOTAL SECTION II - Accessory Characteristics ACCESSORY DESIGN Not based on a known shoulder stock design Incorporates shoulder stock design featnre(s) Based on a known shoulder stock design fDetermination of use as a "Brace" vs. Stock] 0 0 1 2 REAR SURFACE AREA Device incorporates features to prevent use as a shouldering device Minimized Rear Surface lacking features to discourage shouldering 0 Rear Surface useful for shouldering the firearm Material added to increase Rear Surface for shouldering 2 1 1 3 ADJUSTABILITY Non-adjustable, fixed design Adjustable or telescoping attachment designed for shouldering 0 2 STABILIZING SUPPORT Counterbalance Design - Non-Folding Counterbalance Design that Folds creating Rear Contact Surface OR: "Fin- type" design WITH Arm Strap "Fin- type" design WITHOUT Arm Strap 2 0 1 0 2 OR: "Cuff-type" design that FULLY wraps around arm "Cuff-type" design that PARTIALLY wraps around arm 0 "Cuff-type" design that FAILS to wrap around arm 2 "Split-stock" configuration Mt designed to wrnp around shooters ann 3 2 I SECTION II SCORE ACHIEVED: 5 Section IlMust Score LESS than 4 In order to proceed to Section III *Weapon fails to proceed to Section III VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 PO 00000 Frm 00047 Fmt 4702 Sfmt 4725 E:\FR\FM\10JNP1.SGM 10JNP1 EP10JN21.023</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS ATF WORKSHEET 4999 (5330.5) (5-21) 30842 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules fDetennination.if weaoon is shoulder firedl SECTION III• Confi2m·ation ofWeaoon * Measured from the center of the trfager to the center of the LENGTH OF PULL • w/Accessorv in Rear most"Locked Position" Less than 10-1/2 Inches 10·1/2 but under 11-1/2 Jnches 11-112 but under 12-112 Jn.ches 1.2-1/2 but under 13-112 Inches 13-112 lnches and Over shoulder device/ "stabilizin_g brace" 0 1 2 3 3 4 ATTACHMENT METHOD Standard AR-type Pistol Buffer Tube (6-6-1/2 Inches) AR-type Pistol Buffer Tube with Adiustment Notches (!(AK-type) Adjustable Rifle Buffer Tube Adjustable PDW-type guide rails Extended AR-twe Pistol Buffer Tube Inclusion ofFoldingAdapter extending length of pull Use of"Spacers" tQ extend length of pull Modified shoulder stock with rear replaced by ''stabilizing brace" Attachment method creates an unusable aim-point (slant) 0 1 1 1 I 2 2 2 3 3 "STABILIZING BRACE" MODIFICATIONS I CONFIGURATION "Cuff-.type" or "fin-type:' design with strap too shmt to.functfon "Cuff-type" or "fin-type" design with strap made out of elastic material "Fin-type" tacking an arm strap "Cuft~type" design with strap REMOVED "Brace" accessory modified for shouldering Modified Shoulder Stock (originally a Shoulder Stock) 2 2 .2 4 4 4 PERIPHERAL ACCESSORIES Presence of a Hand Stop Presence of a. Secondary Grip (indicating two-handed fire) Presence of Rifle-type Back-up I Flip-up Sights I or no sights Presence .of Reflex Sight with FTS Magnifier w/ Limited Eye-Relief Presence of a Sight/Scope with Eye Relief Incompatible with one-handed fire Presence of a bipod I monopod Weapon as configui'ed weigh i11g more th an l 20. ounces z 2 4 4 1 2 4 4 2 4 SECTION III SCORE A.CHIEVED: t,t SCORE OF 4 POINTS OR MORE INDICt-tTES A SHOlTLDER-FIRED DESIGNj ~ Weighed with magazine - unloaded 14 Rifle / "short-barreled rifle" CLASSJFJCA110N: ATF WORKSHEET 4999.(5330.5) (5-21) VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 E:\FR\FM\10JNP1.SGM 10JNP1 EP10JN21.024</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS Shockwave Blade Accessory on KAK Tube Without Strap khammond on DSKJM1Z7X2PROD with PROPOSALS BILLING CODE 4410–FY–C ATF evaluated an AR-type firearm with the Shockwave Blade accessory, and would determine that the firearm, as configured, would be designed and intended to be fired from the shoulder. Applying the criteria in Section I, the firearm was determined to weigh approximately 93 ounces and have an overall length of 23 inches, and thus would be a suitable host firearm for a ‘‘stabilizing brace’’ accessory. In Section II, the submitted firearm would score a total of 5 points, precluding it from proceeding to Section III. The submitted firearm with attached Shockwave Blade accessory would accrue 0 points in Accessory Design for not incorporating known shoulder stock features, such as an adjustment lever. In Rear Surface Area, the firearm would accrue 1 point, as the Shockwave Blade accessory has minimized rear surface area discouraging shouldering. In Adjustability, the firearm would accrue 2 points because it is installed onto a KAK-type tube that incorporates adjustment notches for adjustability. Finally, in Stabilizing Support, the firearm would accrue 2 points for being submitted without an arm strap—greatly reducing any stabilizing support. Although an evaluation under Section III would not be necessary as the firearm would already have been determined to be designed to be fired from the shoulder, the firearm was further evaluated for informational purposes. Under Section III, the firearm would score a total of 14 points. In Length of Pull, the firearm was determined to possess a length of pull of approximately 131⁄4 inches, and thereby would accrue 3 points. In Attachment Method, the firearm would accrue 1 VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 point as the Shockwave Blade accessory utilizes a KAK tube with adjustment notches. Under the ‘‘Stabilizing Brace’’ Modification category, the firearm would accrue 2 points for lack of an arm strap. Finally, in Peripheral Accessories, the firearm would accrue an additional 8 points. The firearm was submitted with a secondary forward grip, a determinative indicator that the weapon is not designed to be held and fired with one hand; thereby it would accrue 4 points. Further, the firearm would accrue an additional 4 points due to it being submitted with a scope that has incompatible eye relief for one-handed firing (where the weapon must be fired from the shoulder in order to use the sight). The submitted firearm, as configured, would score a total of 14 points in this section, and would be determined to be designed and intended to be fired from the shoulder. Therefore, the firearm would be classified as a ‘‘rifle.’’ Further, having a rifled barrel less than 16 inches in length, the firearm would be properly classified as a ‘‘short-barreled rifle’’ and an NFA ‘‘firearm.’’ V. Options for Affected Persons As mentioned, ATF wants to assist affected persons or companies and is providing additional information to aid them in complying with Federal laws and regulations. Below are options for those persons that may be affected upon publication of a final rule. A. Current Unlicensed Possessors In order to comply with the provisions of the NFA, current unlicensed possessors of a firearm equipped with a ‘‘stabilizing brace’’ and PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 30843 a barrel length of less than 16 inches that would qualify as a ‘‘short-barreled rifle’’ as indicated on the ATF Worksheet 4999 contained in this proposed rule would need to take one of the following actions before the effective date of a final rule. (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. Exercising this option would mean the pistol would no longer be ‘‘equipped with’’ the stabilizing brace within the meaning of the proposed rule. (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, www.atf.gov. (4) Turn the firearm into your local ATF office. (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. Documentation establishing submission of Form 1 includes, but is not limited E:\FR\FM\10JNP1.SGM 10JNP1 EP10JN21.025</GPH> Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules 30844 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules to, eForm submission acknowledgement, proof of payment, or copy of Form 1 submission with postmark documentation. B. Federal Firearms Licensees Not Having Paid Special (Occupational) Tax (‘‘SOT’’) as a Class 2 Manufacturer Under the NFA In order to comply with the provisions of the NFA, Federal firearm licensees not having paid SOT as a Class 2 manufacturer under the NFA currently in possession of a firearm equipped with a ‘‘stabilizing brace’’ and a barrel length of less than 16 inches that would qualify as a ‘‘short-barreled rifle’’ under the ATF Worksheet 4999 contained in this proposed rule would be required to take one of the following actions before the effective date of a final rule. (1) Options 1–4 listed above. (2) Complete and submit an ATF 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. Documentation establishing submission of Form 1 includes, but is not limited to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic benefits, environmental benefits, public health and safety effects, distributive impacts, and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Office of Management and Budget (‘‘OMB’’) has determined that this proposed rule is a ‘‘significant regulatory action’’ that is economically significant under section 3(f) of Executive Order 12866, because the rule will have an annual effect on the economy of $100 million or more. Accordingly, the rule has been reviewed by OMB. As required by OMB Circular A–4 (available at http:// www.whitehouse.gov), ATF has prepared an accounting statement showing the classification of expenditures associated with the NPRM. to, eForm submission acknowledgement, proof of payment, or copy of Form 1 submission with postmark documentation. An importer, manufacturer, or dealer licensed under the GCA, but not the NFA, may not engage in the business of dealing in NFA firearms prior to compliance with the payment of the SOT. C. Manufacturers Licensed Under GCA and Qualified Under NFA In order to comply with the provisions of the NFA, manufacturers licensed under the GCA and having paid SOT as a Class 2 manufacturer under the NFA currently in possession of a firearm equipped with a ‘‘stabilizing brace’’ and a barrel length of less than 16 inches that would qualify as a ‘‘shortbarreled rifle’’ as indicated on the ATF Worksheet 4999 contained in this proposed rule would be required to take one of the following actions before the effective date of a final rule. (1) Options 1–4 listed above. (2) Complete and submit an ATF Form 2, Notice of Firearms Manufactured or Imported. VI. Statutory and Executive Order Review A. Executive Orders 12866 and 13563 Executive Order 12866 (Regulatory Planning and Review) directs agencies TABLE 1—OMB ACCOUNTING STATEMENT Units Primary estimate Category Minimum estimate I Maximum estimate I I Dollar year Disc (%) Period covered (years) Benefits Annualized monetized benefits ($ Millions/year) ................. N/A N/A N/A N/A N/A N/A 2020 2020 7 3 10 10 Annualized quantified ........................................................... N/A N/A N/A N/A N/A N/A 2020 2020 7 3 10 10 Qualitative ............................................................................ —Prevents manufacturers and individuals from circumventing the requirements of the NFA. —Enhances public safety by reducing the criminal use of such firearms, which are easily concealable from the public and first responders. khammond on DSKJM1Z7X2PROD with PROPOSALS Costs Annualized monetized costs ($ Millions/year) ..................... $125.7 114.7 $125.7 114.7 $303.5 278.2 2020 2020 7 3 10 10 Annualized quantified ........................................................... N/A N/A N/A N/A N/A N/A 2020 2020 7 3 10 10 $20.1 17.2 $46.7 40.0 2020 2020 7 3 10 10 Qualitative (unquantified) ..................................................... N/A Transfers Federal Annualized Monetized ($ Millions/year) ................. VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 PO 00000 Frm 00050 $20.1 17.2 Fmt 4702 Sfmt 4702 E:\FR\FM\10JNP1.SGM 10JNP1 Notes 30845 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules TABLE 1—OMB ACCOUNTING STATEMENT—Continued Units Primary estimate Category From/To ................................................................................ Minimum estimate Maximum estimate From: Individuals and FFLs Other Annualized monetized transfers ($ Million/year) ....... N/A N/A From/To ................................................................................ From: N/A N/A N/A Dollar year Disc (%) Period covered (years) Notes To: Federal Government N/A N/A 2020 2020 7 3 10 10 To: N/A Effects State, local, and/or tribal governments ................................ The rule would not have a significant intergovernmental mandate, significant or unique effect on small governments, or have Federalism or Tribal implications. Small businesses ................................................................. Approximately 3 manufactures of ‘‘stabilizing braces’’ would be significantly affected by more than 10% of their revenue. May affect 13,210 Type 1 FFLs and 3,881 Type 7 FFLs. Most Type 1 FFLs are small businesses, but likely would need to make less than $2,357 in revenue to have an impact of 10 percent or more. Wages .................................................................................. N/A Growth .................................................................................. N/A Table 2 summarizes the affects that this proposed rule would have on the industry and public. TABLE 2—SUMMARY OF AFFECTED POPULATION, COSTS, AND BENEFITS Category Affected populations, costs, and benefits Affected Population ............................................................ • 8 Manufacturers of affected ‘‘stabilizing braces.’’ • 3,881 Manufacturers of ‘‘short-barreled rifles’’ that have a ‘‘stabilizing brace’’ attachment. • 13,210 Dealers of ‘‘short-barreled rifles’’ that have a ‘‘stabilizing brace’’ attachment. • 1.4 million firearm owners who have purchased pistols with ‘‘stabilizing braces’’ attached and those who intend to purchase them in the future. • $125.7 million at 7%. • $114.7 million at 3%. • $20.1 million at 7% • $17.2 million at 3%. • Prevents manufacturers and individuals from circumventing the requirements of the NFA. • Enhances public safety by reducing the criminal use of such firearms, which are easily concealable from the public and first responders. Costs (annualized) ............................................................. Total Quantified from Industry, to the Government (annualized). Unquantified Benefits ......................................................... khammond on DSKJM1Z7X2PROD with PROPOSALS Need for Federal Regulatory Action One of the reasons ATF is considering this proposed regulation is the failure of the market to compensate for negative externalities caused by commercial activity. A negative externality can be the by-product of a transaction between two parties that is not accounted for in the transaction. A negative externality addressed by this proposed rule is that individuals and manufacturers may try to use purported ‘‘stabilizing braces’’ and affix them to firearms to circumvent the requirements of the NFA, which requires registration and taxes to be paid on the making and transfer of NFA VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 weapons. Further, Congress chose to regulate these items more stringently, finding them to be especially dangerous to the community if not regulated since they are used for violence and criminal activity. See United States v. Gonzalez, No. 2:10–cr–00967 CW, 2011 WL 5288727, at *5 (D. Utah Nov. 2, 2011) (‘‘Congress specifically found that ‘short-barreled rifles are primarily weapons of war and have no appropriate sporting use or use for personal protection.’’ (quoting S. Rep. No. 90–1501, at 28 (1968))). Therefore, if persons can circumvent the NFA by effectively making unregistered ‘‘shortbarreled rifles’’ by using an accessory PO 00000 Frm 00051 Fmt 4702 Sfmt 4702 such as a ‘‘stabilizing brace,’’ these weapons can continue to proliferate and could pose an increased public safety problem given that they are easily concealable. Population Based on subject matter experts (‘‘SMEs’’), ATF estimates that there are at least eight manufacturers of ‘‘stabilizing braces.’’ Anecdotal evidence from the manufacturers of the affected ‘‘stabilizing braces’’ indicates that the manufacturers have sold between 3 million and 7 million ‘‘stabilizing braces’’ between the years 2013 to 2020 or over the course of eight E:\FR\FM\10JNP1.SGM 10JNP1 30846 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules years. For the purposes of this analysis, ATF uses 3 million as the low estimate and primary estimate of affected ‘‘stabilizing braces.’’ This proposed rule may affect upwards of 1.4 million individuals, 13,210 Type 1 Federal Firearms Licensees (‘‘FFLs’’), and 3,881 Type 7 FFLs. For more details, please refer to Chapter 2 and each of the specific cost chapters of the standalone Regulatory Impact Analysis (‘‘RIA’’) for this proposed rule. Scenario 1: Turn in Firearm to ATF One option for current owners of firearms with ‘‘stabilizing braces’’ to comply with the proposed rule would be to turn in the firearm with the attached stabilizing brace to ATF for disposal. As the individual possessing the firearm would be permitted to simply remove the ‘‘stabilizing brace’’ and dispose of it, while retaining the firearm, ATF believes it would be unlikely that individuals would turn in their entire firearm into ATF to be destroyed. As ATF does not anticipate anyone choosing to turn in a firearm with an attached stabilizing brace into ATF for disposal, so no cost was attributed to this scenario. Because braces themselves, as firearm accessories or components, are generally not regulated items, ATF requests comments regarding the population, methodology, and scope of this scenario. khammond on DSKJM1Z7X2PROD with PROPOSALS Scenario 2: Convert Firearm Into a LongBarreled Rifle Another scenario is for individuals and FFLs to retain the ‘‘stabilizing brace’’ but convert the firearm into a firearm under the GCA rather than under the NFA. More specifically, they may convert the firearm into a longbarreled rife. ATF anticipates the minimum need is to purchase a long barrel and handrails. The average cost of a long barrel is $198.21 The average cost 21 https://www.brownells.com/rifle-parts/barrelparts/rifle-barrels/ar-15-6mm-arc-barrels-heavyprofile-prod135844.aspx (accessed May 10, 2021); https://www.hinterlandoutfitters.com/mossberg92062-rifled-barrel-wsights-gauge-slug-p13798.html (accessed May 10, 2021); https:// www.hinterlandoutfitters.com/mossberg-90831-ultibarrel-wparkerized-finish-accu-chokes-gauge-ultislug-p-13809.html (accessed May 10, 2021); https:// www.gunpartscorp.com/category/barrels/riflebarrels/sig-sauer/516-sig (accessed May 10, 2021); https://www.gunpartscorp.com/category/barrels/ rifle-barrels/sig-sauer/516-sig (accessed May 10, 2021); https://www.gunpartscorp.com/category/ barrels/rifle-barrels/colt/lightning-cf-rifle (accessed May 10, 2021); https://www.midwayusa.com/ product/1017600744 (accessed May 10, 2021); https://www.midwayusa.com/product/1017600744 (accessed May 10, 2021); https:// www.midwayusa.com/product/1017600744 (accessed May 10, 2021); https:// www.midwayusa.com/product/1023207522 (accessed May 10, 2021). VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 for handrails is $212,22 making the cost per firearm $410.23 ATF estimates that the average affected individual may own approximately two firearms with an attached ‘‘stabilizing brace’’ while affected FFLs own an average of 3 firearms with an attached ‘‘stabilizing brace.’’ The total cost for this scenario is $125.1 million. For more details, please refer to Chapter 4 of the standalone RIA. Because braces themselves are generally not regulated items, ATF requests comments regarding the population, methodology, and scope of this scenario. Scenario 3: Apply To Register Under the NFA Individuals and FFLs could keep their firearms with attached ‘‘stabilizing brace’’ and apply to register under the NFA. Under this scenario, individuals and Type 1 FFL dealers would need to complete a Form 1 for each and every firearm affected by this proposed rule. Type 7 FFL manufacturers would complete a Form 2 for all their affected firearms in inventory. FFLs would then be able to sell these firearms with attached ‘‘stabilizing braces’’ as NFA weapons to individuals who wish to purchase them. The estimated cost for an individual to apply for two firearms with attached ‘‘stabilizing braces’’ would be $132.24 The cost per Type 1 FFL to fill out 3 Form 1s is $985.25 The cost per Type 7 FFL to fill out one Form 2 is $47.26 The total industry cost to this scenario is a one-time cost of $51.3 million. While individuals and Type 1 FFLs would need to pay a $200 makings tax per firearm under the NFA, because this cost is a transfer payment from industry to the Federal Government, the transfer payment of these taxes is described under section 7.2 of the standalone RIA. For more details, please refer to Chapter 5 of the standalone RIA. Because braces themselves are generally not regulated items, ATF requests comments regarding the population, methodology, and scope of this scenario. 22 https://www.aeroprecisionusa.com/ar15-atlasr-one-m-lok-handguard (accessed Apr. 14, 2021); https://slrrifleworks.com/hand-guards/5-56handguards/ion-series/ion-ultra-lite/ (accessed Apr. 14, 2021); https://www.odinworks.com/O2_Lite_M_ LOK_Forend_p/f-12-ml-o2.htm (accessed Apr. 14, 2021);. https://seekinsprecision.com/noxs-mlokrail-1-1.html (accessed Apr. 14, 2021). 23 $410 = $198 + $212. 24 $132 = (($16.52 leisure hourly wage * 4 hours)) * 2 applications. 25 $985 = (($82.08 average loaded hourly wage * 4 hours)) * 3 applications. 26 $47 = $62.93 average loaded hourly wage * 0.75 hours. PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 Scenario 4: Permanently Remove or Alter Affected ‘‘Stabilizing Braces’’ Currently in Circulation and Foregone Future Sales Under this scenario, all parties affected could simply permanently remove or alter their ‘‘stabilizing braces’’ as they see fit. However, ATF has determined this would be a loss of property. There are various types of ‘‘stabilizing braces’’ that would be affected by this proposed rule. We assume that the lost value to owners of a ‘‘stabilizing brace’’ would be at least as much as the cost of a new ‘‘stabilizing brace.’’ The average cost for a ‘‘stabilizing brace’’ is $236.27 At 1.9 million ‘‘stabilizing braces’’ affected under this scenario, ATF estimates that the cost for disposing of currently existing ‘‘stabilizing braces’’ would be $443.9 million.28 While these ‘‘stabilizing braces’’ have been purchased over the course of eight years, ATF uses that information to estimate the future sales of these affected ‘‘stabilizing braces’’ forgone. However, in lieu of promulgating a proposed regulation, ATF has been and will continue to use enforcement actions, to include criminal actions, against existing FFLs that manufacture firearms that do not comply with the intent of the law. ATF estimates that in the absence of this proposed rule, these individual enforcement actions against existing FFLs would change the market perception of these ‘‘stabilizing braces’’ and may affect the overall demand for these items regardless of the implementation of the proposed rule. Therefore, ATF estimates that the overall future demand for ‘‘stabilizing braces’’ would decrease by the estimated amount attributed to Type 1 and Type 7 FFLs, making the primary estimate of future ‘‘stabilizing braces’’ 211,178 per year.29 Thus, ATF estimates that this scenario would mean a loss of $49.7 million in sales per year. For more details, please refer to Chapter 6 of the standalone RIA. 27 https://www.sb-tactical.com/product/sba3/ (accessed Apr. 22, 2021); https://www.sbtactical.com/product/sbm47/(accessed Apr. 22, 2021); https://www.sb-tactical.com/product/hkpdw/ (accessed Apr. 22, 2021); https://www.sbtactical.com/product/tac13-sba3/(accessed Apr. 22, 2021); https://www.sb-tactical.com/product/czpdw/ (accessed Apr. 22, 2021); https://www.sbtactical.com/product/fs1913/(accessed Apr. 22, 2021); https://www.pewpewtactical.com/best-ar-15pistols/(accessed Apr. 22, 2021). 28 $443.9 million = ((905,523 individuals * 2 ‘‘stabilizing braces’’) + (10,642 Type 1 FFLs * 3 ‘‘stabilizing braces’’) + (1,263 Type 7 FFLs * 32 ‘‘stabilizing braces’’)) * $236 cost of brace. 29 211,178 future ‘‘stabilizing braces’’ = 375,000 annual ‘‘stabilizing braces’’¥(13,210 Type 1 FFL * 3 stabilizing braces)¥(3,881 Type 7 FFL * 32 stabilizing braces). E:\FR\FM\10JNP1.SGM 10JNP1 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules Because braces themselves are not regulated items, ATF requests comments regarding the population, methodology, and scope of this scenario. Total Cost of the Proposed Rule This section summarizes the total costs of this proposed rule as described throughout this RIA. As noted in Chapter 5 of the standalone RIA, $151.0 million was not accounted for in Chapter 5 due to the NFA tax. Because it would be considered a transfer payment from the public to the Federal Government, it was not included in the societal cost of the rule. The annualized cost of this proposed rule would be $114.7 million and $125.7 million, at 3 percent and 7 percent, respectively. At this time, the government cost of this proposed rule was not included in this cost assessment. khammond on DSKJM1Z7X2PROD with PROPOSALS Benefits This proposed rule would affect attempts by manufacturers and individuals to circumvent the requirements of the NFA and would affect the criminal use of weapons with a purported ‘‘stabilizing brace,’’ such as the shooting incident at the King Soopers in Boulder, Colorado. The purpose of this proposed rule is to amend ATF regulations to clarify when a rifle is ‘‘intended to be fired from the shoulder’’ and to set forth factors that ATF considers when evaluating firearms with an attached purported ‘‘stabilizing brace’’ to determine whether these are ‘‘rifles’’ under the GCA or NFA, and therefore whether they are ‘‘firearms’’ subject to the NFA. Congress placed stricter requirements on the making and possession of ‘‘short-barreled rifles’’ because it found them to pose a significant crime problem. Providing clarity to the public and industry on how ATF enforces the provisions of the NFA through this proposed rule significantly enhances public safety and could reduce the criminal use of such firearms, which are easily concealable from the public and first responders. Alternatives This section outlines the various alternatives considered when creating this proposed rule. For a more detailed analysis, please refer to Chapters 1 and 10 of the RIA. Proposed Alternative—Factoring Criteria for Firearms with Attached Stabilizing Braces. This proposed alternative would amend the definitions of rifle in 27 CFR 478.11 and 27 CFR 479.11 to indicate that a rifle includes any weapon with a rifled barrel equipped with an accessory or VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 component purported to assist the shooter to stabilize the weapon while shooting with one hand, commonly referred to as a ‘‘stabilizing brace,’’ that has objective design features and characteristics that facilitate shoulder fire as described in ATF Worksheet 4999. Alternative 1—No change alternative. This alternative has no costs or benefits because it is maintaining the existing status quo. This alternative was considered and not implemented because the NFA requires regulation of certain types of firearms above what is required under the GCA. Alternative 2—Simple Criteria. This alternative would provide very short and simple parameters in terms of how a ‘‘stabilizing brace’’ or stock would be defined, such as length only. This alternative would be easy for the public to read and understand. Where this was feasible, ATF has incorporated these simple and easy to follow parameters. Alternative 3—Grandfather all existing firearms with an attached ‘‘stabilizing brace.’’ In order to enforce the regulation, a complete grandfathering of existing firearms with an attached ‘‘stabilizing brace’’ is problematic in that manufacturers could continue to produce these items that are actually ‘‘rifles’’ under the statutory definition and subject to the NFA and market them as grandfathered firearms with an attached ‘‘stabilizing brace’’ not subject to the same regulation. This could potentially pose an enforcement issue that may not be resolved for years if not decades. Alternative 4—Guidance documents. This alternative would publish a guidance document instead of a rulemaking. While this alternative minimizes cost because compliance in this scenario would be voluntary, it does not meet the objectives outlined in this proposed rule as guidance documents do not have the same force and effect as a regulation. Guidance documents do not in and of themselves impose binding legal obligations. This would pose an enforcement issue. Moreover, issuing a proposed rule invites comments from the public, creating greater transparency and notice. Alternative 5—Forgiveness of the NFA Tax. This alternative would allow individuals and entities that currently have firearms with attached ‘‘stabilizing braces’’ to apply and register firearms under the NFA without paying the $200 making tax. In this scenario, the societal costs would be the same except there would be no transfer payment. Similar to the proposed rule, the bulk of this cost would be the foregone future revenue and the loss in property for PO 00000 Frm 00053 Fmt 4702 Sfmt 4702 30847 individuals not applying under the NFA.30 This scenario was rejected because ‘‘stabilizing braces’’ are not serialized and an individual or entity could merely register all firearms possessed with the intent of later obtaining a ‘‘stabilizing brace.’’ Further, although the ‘‘brace’’ is used on a particular weapon, an individual might register all pistols as SBRs and then attempt to utilize other stocks on these firearms. B. Executive Order 13132 This proposed rule will not have substantial direct effects on the States, the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132 (Federalism), the Attorney General has determined that this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. C. Executive Order 12988 This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform). D. Regulatory Flexibility Act (RFA) In accordance with the Regulatory Flexibility Act (‘‘RFA’’), ATF prepared an Initial Regulatory Flexibility Analysis (‘‘IRFA’’) that examines the impacts of the proposed rule on small entities (5 U.S.C. 601 et seq.). The term ‘‘small entities’’ comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of fewer than 50,000 people. Summary of Findings ATF performed an IRFA of the impacts on small businesses and other entities from the Factoring Criteria for Firearms with Attached ‘‘Stabilizing Braces’’ proposed rule [2021R–08] . We performed this assessment using the cost information discussed in chapters 2 through 7 of the RIA. Based on the information from this analysis, we found: • ATF estimates that this proposed rule would potentially affect at least 8 manufactures of ‘‘stabilizing braces.’’ Based on SME commentary, it is 30 However, the real cost to the individual or FFL would be minimal since filling out the form would not necessarily incur an out-of-pocket cost and the tax would not be incurred either. E:\FR\FM\10JNP1.SGM 10JNP1 30848 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules anticipated 3 of them would go out of business; • ATF also anticipates that this proposed rule would affect 17,091 FFLs, many of whom would be considered small businesses; • However, the highest anticipated cost to would be if a Type 1 FFL had 24 ‘‘stabilizing braces’’ (the high estimate that a Type 1 FFL may have) and opted to file under the NFA. Should they own 24 arm braces and opt to apply under the NFA, ATF anticipates these FFLs would need to make $111,855 in revenue or less in order to incur an impact of 10 percent or more. • There are no relevant government entities. khammond on DSKJM1Z7X2PROD with PROPOSALS Preliminary Initial Regulatory Flexibility Analysis The RFA establishes that agencies must try to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this goal, agencies must solicit and consider flexible regulatory proposals and explain the rationale for their actions to assure that such proposals are given serious consideration.31 Under the RFA, we are required to consider what, if any, impact this rule would have on small entities. Agencies must perform a review to determine whether a rule will have such an impact. Because the agency has determined that it will have a significant impact on a substantial number of small entities, the agency has prepared an initial regulatory flexibility analysis as described in the RFA. Under section 603(b) of the RFA, the regulatory flexibility analysis must provide or address: • A description of the reasons why action by the agency is being considered; • A succinct statement of the objectives of, and legal basis for, the proposed rule; • A description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply; • A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; • An identification, to the extent practicable, of all relevant Federal rules 31 Regulatory Flexibility Act, Public Law 96–354, sec. 2(b), 94 Stat. 1164 (1980). VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 that may duplicate, overlap, or conflict with the proposed rule; and • Descriptions of any significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and that minimize any significant economic impact of the proposed rule on small entities. A Description of the Reasons Why Action by the Agency Is Being Considered One of the reasons ATF is considering this proposed rule is the failure of the market to compensate for negative externalities caused by commercial activity. A negative externality can be the by-product of a transaction between two parties that is not accounted for in the transaction. A negative externality addressed by this proposed rule is that individuals and manufacturers may try to use purported ‘‘stabilizing braces’’ and affix them to firearms to circumvent the requirements of the NFA, which requires registration and taxes to be paid on the making and transfer of NFA weapons. If persons can circumvent the NFA by effectively making unregistered ‘‘short-barreled rifles’’ by using an accessory such as a ‘‘stabilizing brace,’’ these weapons can continue to proliferate and could pose an increased public safety problem given that they are easily concealable. A Succinct Statement of the Objectives of, and Legal Basis for, the Proposed Rule The Attorney General is responsible for enforcing the GCA, as amended, and the NFA, as amended. This responsibility includes the authority to promulgate regulations necessary to enforce the provisions of the GCA and NFA. See 18 U.S.C. 926(a); 26 U.S.C. 7801(a)(2)(A), 7805(a). The Attorney General has delegated the responsibility for administering and enforcing the GCA and NFA to the Director of ATF, subject to the direction of the Attorney General and the Deputy Attorney General. See 28 U.S.C. 599A(b)(1); 28 CFR 0.130(a)(1)–(2). Accordingly, the Department and ATF have promulgated regulations implementing both the GCA and the NFA. See 27 CFR parts 478, 479. This proposed rule would prevent persons from circumventing the NFA by using arm braces as stocks on ‘‘shortbarreled rifles’’. If persons can circumvent the NFA by effectively making unregistered ‘‘short-barreled rifles’’ by using an accessory such as a ‘‘stabilizing brace,’’ these weapons can continue to proliferate and could pose an increased public safety problem given that they are easily concealable. PO 00000 Frm 00054 Fmt 4702 Sfmt 4702 A Description of and, Where Feasible, an Estimate of the Number of Small Entities To Which the Proposed Rule Will Apply This rule would affect primarily three manufacturers of certain ‘‘stabilizing braces’’ that have been primarily used as an alternative to a stock on a firearm. It is anticipated they would lose their business of manufacturing ‘‘stabilizing braces.’’ This proposed rule would also affect FFLs that sell these affected arm braces, and other small retailers of firearm accessories that have invested in the arm brace industry. ATF anticipates that this proposed rule would affect 17,091 FFLs, many of whom would be considered small businesses. Based on data gleaned from persons who turned in bump stocks, an FFL could have as many as 24 ‘‘stabilizing braces’’ affected by this proposed rule. The majority are likely to own only one. The cost for an FFL could range from $236 to dispose of one ‘‘stabilizing brace’’ to $11,185 to submit 24 applications under the NFA. ATF anticipates the majority of FFLs to experience a one-time cost of $236 for the disposal of one ‘‘stabilizing brace.’’ However, the highest anticipated cost would occur if an FFL had 24 ‘‘stabilizing braces’’ and opted to file under the NFA. Should they own 24 arm braces and opt to apply under the NFA, ATF anticipates that these FFLs would need to make $111,855 in revenue or less in order to incur an impact of 10 percent or more. Assuming that the average Type 1 FFL has an average of 3 ‘‘stabilizing braces’’ in inventory and opts to dispose of them, the FFL would lose $707 per entity. This would mean that the FFL would need to make $7,071 or less to incur a significant impact. An Identification, to the Extent Practicable, of all Relevant Federal Rules Which May Duplicate, Overlap or Conflict With the Proposed Rule This proposed rule does not duplicate or conflict with other Federal rules. Descriptions of Any Significant Alternatives to the Proposed Rule That Accomplish the Stated Objectives of Applicable Statutes and That Minimize Any Significant Economic Impact of the Proposed Rule on Small Entities Please see Chapter 9 of the RIA on the discussion of alternatives. ATF did not create any alternatives specific to small businesses but notes that the majority of the affected businesses would be considered small. E:\FR\FM\10JNP1.SGM 10JNP1 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules E. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is likely to be considered major as it is economically significant and is projected to have an effect of over $100 million on the economy in at least the first year of the rule. See 5 U.S.C. 804. F. Unfunded Mandates Reform Act of 1995 This proposed rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995 (‘‘UMRA’’), Public Law 104–4, 109 Stat. 48, based on the proposed rule’s impact on State, local, or Tribal governments. However, based on the analysis presented in the RIA, the Department concludes that the proposed rule would impose a Federal mandate on the private sector in excess of $100 million in expenditures in any one year. The RIA constitutes the written statement containing a qualitative and quantitative assessment of the anticipated costs, benefits, and alternatives required under section 202(a) of the UMRA (2 U.S.C. 1532). khammond on DSKJM1Z7X2PROD with PROPOSALS G. Paperwork Reduction Act of 1995 This proposed rule would call for collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–20). As defined in 5 CFR 1320.3(c), ‘‘collection of information’’ comprises reporting, recordkeeping, monitoring, posting, labeling, and other similar actions. The title and description of the information collection, a description of those who must collect the information, and an estimate of the total annual burden follow. The estimate covers the time for reviewing instructions, searching existing sources of data, gathering and maintaining the data needed, and completing and reviewing the collection. Under the provisions of this proposed rule, there would be a one-time increase in paperwork burdens of NFA applications. This requirement would be added to an existing approved collection covered by OMB control number 1140–0011 and 1140–0012. Title: Application to Make and Register a Firearm. OMB Control Number: OMB 1140– 0011. Proposed Use of Information: The ATF Form 1 (5320.1) is required to VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 register an NFA firearm by any person, other than a qualified manufacturer, who wishes to make and register an NFA firearm. The implementing regulations are in 27 CFR 479.61– 479.71. Under the provisions of 26 U.S.C. 5822, no person can make an NFA firearm until he or she has applied for and received approval from the Attorney General (delegated to ATF). Subject to certain exceptions, the making of an NFA firearm is subject to a tax of $200 (26 U.S.C. 5821). The proposed use of this information is to ensure that applicants are in compliance with relevant laws. Description and Number of Respondents: Currently, there is a total of 25,716 respondents to this information collection. Of these 25,716 respondents, 477 of them are FFLs, 21,879 of them are trusts and legal entities, and 3,360 of them are individuals. For the purposes of this proposed rule, ATF estimates 1,679 FFLs and 375,000 individuals would submit a response due to this proposed rule. For the purposes of this proposed rule, the number of trusts and legal entities were not calculated. Frequency of Response: One time. Burden of Response: Currently, one time. For this proposed rule, 2 to 3 times, depending on the number of firearms. Estimate of Total Annual Burden: The existing hourly burden is 102,808 hours, with an additional 3,020,148 hours due to this proposed rule. Title: Notice of Firearms Manufactured or Imported. OMB Control Number: OMB 1140– 0012. Proposed Use of Information: The Notice of Firearms Manufactured or Imported, ATF Form 2 (5320.2), is required of (1) a person who is qualified to manufacture NFA firearms, or (2) a person who is qualified to import NFA firearms to register manufactured or imported NFA firearm(s). In general, under the provisions of 26 U.S.C. 5822, no person can make an NFA firearm until he or she has applied for and received approval from the Attorney General of the United States (delegated to ATF). Subject to certain exceptions, the making of an NFA firearm is subject to a tax of $200. Section 5841(b) provides that each manufacturer and importer shall register each firearm manufactured or imported. Section 5841(c) provides that each manufacturer shall notify the Attorney General about the manufacture of a firearm, as provided by the regulations. These regulations further stipulate that each importer must obtain authorization as PO 00000 Frm 00055 Fmt 4702 Sfmt 4702 30849 required by regulations, prior to importing a firearm. Section 5852(c) exempts a qualified manufacturer from payment of the making tax for manufactured firearms. The proposed use of this information is to ensure that applicants are in compliance with relevant laws. Description and Number of Respondents: Currently, there are 14,384 FFLs with SOT. Frequency of Response: One time. Burden of Response: Currently, respondents will respond one time. This proposed rule may require a second response to incorporate a change in inventory. Estimate of Total Annual Burden: Currently, the burden hours is 7,192. This rule would add an additional burden of 1,323 hours. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted a copy of this proposed rule to the OMB for its review of the collections of information. We ask for public comment on the proposed collection of information to help us determine how useful the information is; whether it can help us perform our functions better; whether it is readily available elsewhere; how accurate our estimate of the burden of collection is; how valid our methods for determining burden are; how we can improve the quality, usefulness, and clarity of the information; and how we can minimize the burden of collection. You need not respond to a collection of information unless it displays a currently valid control number from OMB. Before the requirements for this collection of information become effective, we will publish a notice in the Federal Register of OMB’s decision to approve, modify, or disapprove the proposed collection. VII. Public Participation A. Comments Sought ATF requests comments on the proposed rule from all interested persons. ATF specifically requests comments on the clarity of this proposed rule and how it may be made easier to understand. ATF also requests comments on the costs or benefits of the proposed rule and on the appropriate methodology and data for calculating those costs and benefits. Additionally, ATF requests comments on providing a tax forgiveness for the registration of ‘‘short-barreled rifles’’ pursuant to this proposed rule. ATF recognizes that individuals may have submitted comments previously in response to a notice ATF published on December 18, 2020, titled ‘‘Objective E:\FR\FM\10JNP1.SGM 10JNP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 30850 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules Factors for Classifying Weapons with ‘Stabilizing Braces.’ ’’ 85 FR 82516. However, the notice was withdrawn on December 31, 2020, prior to the comment period ending. 85 FR 86948. Moreover, this proposed rule incorporates different provisions than the December 2020 notice did, including a series of objective factors that are weighted in order to reflect objective decisions based on the design elements of each ‘‘stabilizing brace.’’ Comments received pursuant to that notice have not been, and will not be, considered as part of this proposed rule. Commenters will need to submit new comments in connection with this proposed rule. All comments should reference this document’s docket number ATF 2021R– 08, be legible, and include the commenter’s complete first and last name and full mailing address. ATF may not consider, or respond to, comments that do not meet these requirements or comments containing excessive profanity. ATF will retain all comments as part of this rulemaking’s administrative record. ATF will treat all comments as originals and will not acknowledge receipt of comments. In addition, if ATF cannot read your comment due to technical difficulties and cannot contact you for clarification, ATF may not be able to consider your comment. ATF will carefully consider all comments, as appropriate, received on or before the closing date, and will give comments after that date the same consideration if practical to do so, but assurance of consideration cannot be given except as to comments received on or before the closing date. In addition to the broader requests for comment outlined above, ATF is interested in specific comments from the public that may help address the following questions: 1. How do current owners of stabilizing braces anticipate that they will choose to comply with this rulemaking if it is finalized? Are owners more likely to permanently remove or alter their braces, turn in their firearms with a brace to ATF, or register them with ATF as NFA firearms and pay the associated tax? Would owners be more likely to register their firearms instead of choosing one of the other options if the tax on the registration is forgiven? 2. How do manufacturers anticipate they will comply with this rulemaking, if finalized? Will manufacturers stop making stabilizing braces, alter their stabilizing braces in some manner so they don’t meet the criteria in this rulemaking, or market their braces differently? VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 3. Has ATF selected the most appropriate criteria for determining whether a stabilizing brace has made a firearm subject to the NFA? Do commenters have additional criteria that should be considered? B. Confidentiality ATF will make all comments meeting the requirements of this section, whether submitted electronically or on paper, available for public viewing at ATF and on the internet through the Federal eRulemaking Portal, and subject to the Freedom of Information Act (5 U.S.C. 552). Commenters who do not want their name or other personal identifying information posted on the internet should submit comments by mail or facsimile, along with a separate cover sheet containing their personal identifying information. Both the cover sheet and comment should reference this docket number (2021R–08). For comments submitted by mail or facsimile, information contained on the cover sheet will not appear when posted on the internet but any personal identifying information that appears within a comment will not be redacted by ATF and will appear on the internet. A commenter may submit to ATF information identified as proprietary or confidential business information. The commenter shall place any portion of a comment that is proprietary or confidential business information under law on pages separate from the balance of the comment with each page prominently marked ‘‘PROPRIETARY OR CONFIDENTIAL BUSINESS INFORMATION’’ at the top of the page. ATF will not make proprietary or confidential business information submitted in compliance with these instructions available when disclosing the comments that it received but will disclose that the commenter provided proprietary or confidential business information that ATF is holding in a separate file to which the public does not have access. If ATF receives a request to examine or copy this information, it will treat it as any other request under the Freedom of Information Act (5 U.S.C. 552). In addition, ATF will disclose such proprietary or confidential business information to the extent required by other legal process. requirements may not be considered by ATF. • Federal eRulemaking Portal: ATF recommends that you submit your comments to ATF via the Federal eRulemaking portal at www.regulations.gov and follow the instructions. Comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that is provided after you have successfully uploaded your comment. • Mail: Send written comments to the address listed in the ADDRESSES section of this document. Written comments should appear in minimum 12-point font size (.17 inches), include the commenter’s first and last name and full mailing address, be signed, and may be of any length. Mailed comments will be treated as timely if they are postmarked on or before the last day of the comment period. • Facsimile: Submit comments by facsimile transmission to (202) 648– 9741. Faxed comments must: 1. Be legible and appear in minimum 12-point font size (.17 inches); 2. Be on 81⁄2″ x 11″ paper; 3. Be signed and contain the commenter’s complete first and last name and full mailing address; and 4. Be no more than five pages long. D. Request for Hearing Any interested person who desires an opportunity to comment orally at a public hearing should submit his or her request, in writing, to the Director of ATF within the 90-day comment period. The Director, however, reserves the right to determine, in light of all circumstances, whether a public hearing is necessary. Disclosure Copies of this proposed rule and the comments received in response to it will be available through the Federal eRulemaking portal, at www.regulations.gov (search for RIN 1140–AA55), and for public inspection by appointment during normal business hours at: ATF Reading Room, Room 1E– 063, 99 New York Ave. NE, Washington, DC 20226; telephone: (202) 648–8740. C. Submitting Comments List of Subjects Submit comments in any of three ways (but do not submit the same comment multiple times or by more than one method). Hand-delivered comments will not be accepted. Comments not satisfying these 27 CFR Part 478 PO 00000 Frm 00056 Fmt 4702 Sfmt 4702 Administrative practice and procedure, Arms and munitions, Exports, Freight, Imports, Intergovernmental relations, Law enforcement officers, Military E:\FR\FM\10JNP1.SGM 10JNP1 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules personnel, Penalties, Reporting and recordkeeping requirements, Research, Seizures and forfeitures, Transportation. 27 CFR Part 479 Administrative practice and procedure, Arms and munitions, Excise taxes, Exports, Imports, Military personnel, Penalties, Reporting and recordkeeping requirements, Seizures and forfeitures, Transportation. Authority and Issuance For the reasons discussed in the preamble, 27 CFR parts 478 and 479 are proposed to be amended as follows: Dated: June 7, 2021. Merrick B. Garland, Attorney General. [FR Doc. 2021–12176 Filed 6–9–21; 8:45 am] BILLING CODE 4410–FY–P PART 478—COMMERCE IN FIREARMS AND AMMUNITION DEPARTMENT OF HOMELAND SECURITY 1. The authority citation for 27 CFR part 478 continues to read as follows: Coast Guard ■ Authority: 5 U.S.C. 552(a); 18 U.S.C. 921– 931; 44 U.S.C. 3504(h). 2. In § 478.11, add a sentence to the end of the definition of ‘‘rifle,’’ to read as follows: ■ § 478.11 Meaning of terms. * * * * * Rifle. * * * The term shall include any weapon with a rifled barrel equipped with an accessory or component purported to assist the shooter stabilize the weapon while shooting with one hand, commonly referred to as a ‘‘stabilizing brace,’’ that has objective design features and characteristics that facilitate shoulder fire, as indicated on Factoring Criteria for Rifled Barrel Weapons with Accessories commonly referred to as ‘‘Stabilizing Braces,’’ ATF Worksheet 4999, published on [EFFECTIVE DATE OF THE FINAL RULE]. * * * * * PART 479—MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN OTHER FIREARMS 3. The authority citation for 27 CFR part 479 continues to read as follows: ■ Authority: 26 U.S.C. 5812; 26 U.S.C. 5822; 26 U.S.C. 7801; 26 U.S.C. 7805. 4. In § 479.11, add a sentence to the end of the definition of ‘‘rifle’’, to read as follows: ■ § 479.11 khammond on DSKJM1Z7X2PROD with PROPOSALS characteristics that facilitate shoulder fire, as indicated on Factoring Criteria for Rifled Barrel Weapons with Accessories commonly referred to as ‘‘Stabilizing Braces,’’ ATF Worksheet 4999, published on [EFFECTIVE DATE OF THE FINAL RULE]. * * * * * Meaning of terms. * * * * * Rifle. * * * The term shall include any weapon with a rifled barrel equipped with an accessory or component purported to assist the shooter stabilize the weapon while shooting with one hand, commonly referred to as a ‘‘stabilizing brace,’’ that has objective design features and VerDate Sep<11>2014 16:41 Jun 09, 2021 Jkt 253001 33 CFR Part 100 [Docket Number USCG–2021–0214] RIN 1625–AA08 Special Local Regulation; Breton Bay, McIntosh Run, Leonardtown, MD Coast Guard, Department of Homeland Security (DHS). ACTION: Notice of proposed rulemaking. AGENCY: The Coast Guard is proposing to establish special local regulations for certain waters of Breton Bay and McIntosh Run. This action is necessary to provide for the safety of life on these navigable waters located at Leonardtown, MD, during a high-speed power boat demonstration event on July 31, 2021, and August 1, 2021. This proposed rulemaking would prohibit persons and vessels from being in the regulated area unless authorized by the Captain of the Port Maryland-National Capital Region or the Event Patrol Commander. We invite your comments on this proposed rulemaking. DATES: Comments and related material must be received by the Coast Guard on or before June 25, 2021. ADDRESSES: You may submit comments identified by docket number USCG– 2021–0214 using the Federal eRulemaking Portal at https:// www.regulations.gov. See the ‘‘Public Participation and Request for Comments’’ portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments. SUMMARY: If you have questions about this proposed rulemaking, call or email MST1 Shaun Landante, U.S. Coast Guard Sector Maryland-National Capital Region; telephone 410–576–2570, email D05- FOR FURTHER INFORMATION CONTACT: PO 00000 Frm 00057 Fmt 4702 Sfmt 4702 30851 DG-SectorMD-NCR-MarineEvents@ uscg.mil. SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking PATCOM Patrol Commander § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis The Southern Maryland Boat Club of Leonardtown, MD, has notified the Coast Guard that it will be conducting the Southern Maryland Boat Club Wharf Summer Regatta from 9:30 a.m. to 4 p.m. on July 31, 2021, and from 10:15 a.m. to 4 p.m. on August 1, 2021. The high-speed boat event consists of approximately 50 participating vintage and historic race boats—including runabouts, v-bottoms, tunnel hulls, and hydroplanes—12 to 21 feet in length. The boats will be participating in an exhibition, operating in heats along a marked racetrack-type course 1 mile in length and 150 feet in width, located in Breton Bay and McIntosh Run at Leonardtown, MD. The Regatta is not a competition, but rather a demonstration of the vintage race craft. Hazards from the high-speed power boat demonstration event include participants operating within and adjacent to designated navigation channels and interfering with vessels intending to operate within those channels, as well as operating within approaches to local public boat landings. The Captain of the Port (COTP) Maryland-National Capital Region has determined that potential hazards associated with the high-speed power boat event would be a safety concern for anyone intending to operate within certain waters of Breton Bay and McIntosh Run at Leonardtown, MD, operating in or near the event area. The purpose of this rulemaking is to protect event participants, nonparticipants, and transiting vessels before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Coast Guard is requesting that interested parties provide comments within a shortened comment period of 15 days instead of the more typical 30 days for this notice of proposed rulemaking. The Coast Guard believes the 15-day comment period still provides for a reasonable amount of time for interested parties to review the E:\FR\FM\10JNP1.SGM 10JNP1

Agencies

[Federal Register Volume 86, Number 110 (Thursday, June 10, 2021)]
[Proposed Rules]
[Pages 30826-30851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-12176]


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DEPARTMENT OF JUSTICE

Bureau of Alcohol, Tobacco, Firearms, and Explosives

27 CFR Parts 478 and 479

[Docket No. ATF 2021R-08; AG Order No. 5070-2021]
RIN 1140-AA55


Factoring Criteria for Firearms With Attached ``Stabilizing 
Braces''

AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
Department of Justice.

ACTION: Notice of proposed rulemaking; request for comment.

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SUMMARY: The Department of Justice (``Department'') proposes amending 
Bureau of Alcohol, Tobacco, Firearms, and Explosives (``ATF'') 
regulations to clarify when a rifle is ``intended to be fired from the 
shoulder.'' The Department proposes factors ATF considers when 
evaluating firearms equipped with a purported ``stabilizing brace'' to 
determine whether these weapons would be considered a ``rifle'' or 
``short-barreled rifle'' under the Gun Control Act of 1968 (``GCA'') or 
a ``rifle'' or ``firearm'' subject to regulation under the National 
Firearms Act (``NFA''). This proposed rule is a separate action from 
the Notice on the Objective Factors for Classifying Weapons with 
``Stabilizing Braces'' published on December 18, 2020, and withdrawn on 
December 31, 2020. No comments received under the withdrawn notice were 
considered for this proposed rule, and no comments received pursuant to 
that notice will be considered as part of this proposed rule. 
Commenters will need to submit new comments in connection with this 
proposed rule.

DATES: Written comments must be postmarked, and electronic comments 
must be submitted on or before September 8, 2021. Commenters should be 
aware that the electronic Federal Docket Management System will not 
accept comments after Midnight Eastern Time on the last day of the 
comment period.

ADDRESSES: You may submit comments, identified by docket number ATF 
2021R-08, by any of the following methods--
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the instructions for submitting comments.
     Mail: Denise Brown, Mail Stop 6N-518, Office of Regulatory 
Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, 
Firearms, and Explosives, 99 New York Ave. NE, Washington, DC 20226; 
ATTN: ATF 2021R-08.
     Fax: (202) 648-9741.
    Instructions: All submissions received should include the agency 
name and docket number (ATF 2021R-08) for this notice of proposed 
rulemaking. All properly completed comments received will be posted 
without change to the Federal eRulemaking portal, www.regulations.gov, 
including any personal information provided. For detailed instructions 
on submitting comments and additional information on the rulemaking 
process, see the ``Public Participation'' heading of the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Denise Brown, Office of Regulatory 
Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, 
Firearms, and Explosives, U.S. Department of Justice, 99 New York Ave. 
NE, Washington, DC 20226; telephone: (202) 648-7070 (this is not a 
toll-free number).

SUPPLEMENTARY INFORMATION:

I. Background

    The Attorney General is responsible for enforcing the GCA, as 
amended, and the NFA, as amended.\1\ This includes the authority to 
promulgate regulations necessary to enforce the provisions of the GCA 
and NFA. See 18 U.S.C. 926(a); 26 U.S.C. 7801(a)(2)(A)(ii), 7805(a). 
The Attorney General has delegated the responsibility for administering 
and enforcing the GCA and NFA to the Director of ATF, subject to the 
direction of the Attorney General and the Deputy Attorney General. See 
28 CFR 0.130(a)(1)-(2). Accordingly, the Attorney General and ATF have 
promulgated regulations implementing both the GCA and the NFA. See 27 
CFR parts 478, 479. The ATF Director delegated the authority to 
classify firearms pursuant to the GCA and NFA to ATF's Firearms 
Technology Criminal Branch (``FTCB'') and the Firearms Technology 
Industry Services Branch (``FTISB''), within the Firearms and 
Ammunition Technology Division (``FATD''), Office of Enforcement 
Programs and Services (``EPS'').\2\ FATD supports the firearms industry 
and the general public by, among other things, responding to technical 
inquiries and by testing and evaluating firearms voluntarily submitted 
to ATF for classification under the GCA or NFA. There is no requirement 
that the firearms industry or the public submit firearms to ATF for 
evaluation of the firearm's proper classification under Federal law.
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    \1\ NFA provisions still refer to the ``Secretary of the 
Treasury.'' However, the Homeland Security Act of 2002, Public Law 
107-296, 116 Stat. 2135, transferred the functions of ATF from the 
Department of the Treasury to the Department of Justice, under the 
general authority of the Attorney General. 26 U.S.C. 7801(a)(2); 28 
U.S.C. 599A(c)(1). Thus, for ease of reference, this notice of 
proposed rulemaking refers to the Attorney General throughout.
    \2\ Delegation of Authorities within the Bureau of Alcohol, 
Tobacco, Firearms and Explosives, Delegation Order 1100.168C (Nov. 
5, 2018).
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    The statutory definitions of ``firearm'' under the GCA and the NFA 
are different.\3\ In 1934, Congress passed the NFA in order to regulate 
certain

[[Page 30827]]

``gangster'' type weapons.\4\ These weapons were viewed as especially 
dangerous and unusual, and, as a result, are subject to taxes and are 
required to be registered with ATF.\5\ 26 U.S.C. 5811, 5821, 5841, 
5845. The Supreme Court in District of Columbia v. Heller, 554 U.S. 570 
(2008), recognized these additional constraints as consistent with the 
Second Amendment. ``We also recognize another important limitation on 
the right to keep and carry arms. [United States v. ] Miller[, 307 U.S. 
174 (1939),] said, as we have explained, that the sorts of weapons 
protected were those `in common use at the time.' 307 U.S., at 179, 59 
S. Ct. 816. We think that limitation is fairly supported by the 
historical tradition of prohibiting the carrying of ``dangerous and 
unusual weapons.'' Id. at 627.
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    \3\ 18 U.S.C. 921(a)(3) (GCA definition of firearm); 26 U.S.C. 
5845(a) (NFA definition of firearm).
    \4\ Congress chose to regulate these firearms by taxing them. 
Therefore, the NFA is part of the Internal Revenue Code.
    \5\ Courts have recognized the dangerousness and uniqueness of 
NFA firearms and that possession of unregistered firearms poses a 
danger to the community. United States v. Jennings, 195 F.3d 795, 
799 (5th Cir. 1999) (Congress determined that the unregistered 
possession of the particular firearms regulated under the NFA should 
be outlawed because of ``the virtual inevitability that such 
possession will result in violence''); see United States v. Cox, 906 
F.3d 1170 (10th Cir. 2018) (``[T]he historical tradition of 
prohibiting the carrying of dangerous and unusual weapons'' 
supported limiting the Second Amendment's protection to weapons ``in 
common use at the time'' of ratification. (quoting District of 
Columbia v. Heller, 554 U.S. 570, 626-27 (2008)); United States v. 
Marzzarella, 614 F.3d 85, 95 (3rd Cir. 2010) (explaining that a long 
gun with a shortened barrel is both dangerous and unusual, because 
``its concealability fosters its use in illicit activity,'' and 
``because of its heightened capability to cause damage''); United 
States v. Amos, 501 F.3d 524, 531 (6th Cir. 2007) (McKeague, J., 
dissenting) (``[A] sawed-off shotgun can be concealed under a large 
shirt or coat. . . . [T]he combination of low, somewhat 
indiscriminate accuracy, large destructive power, and the ability to 
conceal . . . makes a sawed-off shotgun useful for only violence 
against another person, rather than, for example, against sport 
game.''); Bezet v. United States, 276 F. Supp. 3d 576, 611-12 (E.D. 
La. 2017), aff'd, 714 F. App'x. 336 (5th Cir. 2017) (``Prior to the 
enactment of the NFA, Congress recognized that the country struggled 
to control the violence wrought by `gangsters, racketeers, and 
professional criminals.' . . . Similarly to the GCA, the NFA was 
adopted by Congress to establish a nationwide system to regulate the 
sale, transfer, license, and manufacturing of certain `dangerous 
weapons' such as `machine guns, sawed-off shotguns, sawed-off 
rifles, and other firearms, other than pistols and revolvers, which 
may be concealed on the persons, and silencers.' . . . [T]he NFA 
targets `certain weapons likely to be used for criminal purposes.' 
''); United States v. Gonzalez, No. 2:10-cr-00967, 2011 WL 5288727, 
at *5 (D. Utah Nov. 2, 2011) (``Congress specifically found that 
`short-barreled rifles are primarily weapons of war and have no 
appropriate sporting use or use for personal protection.' '' 
(quoting S. Rep. No. 90-1501, at 28 (1968))).
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    As a result of the different definitions in the GCA and NFA, 
classification of a weapon as a ``firearm'' under the GCA or the NFA 
affects how it is regulated under Federal law. For instance, a weapon 
classified as a ``firearm'' under only the GCA is subject to interstate 
controls, but is not subject to making or transfer taxes, and need not 
be registered in the National Firearms Registration and Transfer Record 
(``NFRTR'') as required by the NFA. See 18 U.S.C. 922(a)(1); 26 U.S.C. 
5812, 5822, 5841, 5845. In contrast, weapons classified as NFA firearms 
are generally regulated under both statutes. This includes rifles 
having a barrel or barrels less than 16 inches in length (also known as 
``short-barreled rifles'') and shotguns having a barrel or barrels less 
than 18 inches in length (also known as ``short-barreled shotguns.''). 
Under the NFA and implementing regulations, the term ``rifle'' is 
defined to mean ``a weapon designed or redesigned, made or remade, and 
intended to be fired from the shoulder and designed or redesigned and 
made or remade to use the energy of the explosive in a fixed cartridge 
to fire only a single projectile through a rifled bore for each single 
pull of the trigger and shall include any such weapon which may be 
readily restored to fire a fixed cartridge.'' 26 U.S.C. 5845(c); 27 CFR 
479.11. In addition to the NFA requirements, the GCA also imposes 
specific restrictions on the transportation, sale, and delivery of 
``short-barreled rifles'' and ``short-barreled shotguns.'' 18 U.S.C. 
922(a)(4), (b)(4). Therefore, 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.
    Generally, when FATD evaluates a submitted firearm sample, it 
examines its overall configuration, physical characteristics, and 
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 configuration as 
presented by that sample. The numerous configurations, materials, and 
designs of modern firearms require thorough examination and 
consideration to ensure proper classification. Even though firearms may 
have a similar appearance (i.e., shape, size, etc.), an ATF 
classification of a firearm pertains only to the particular sample 
submitted because of the vast variations in submissions, the 
application of different relevant statutes and judicial interpretations 
of these statutes, the manufacturer's or maker's stated intent,\6\ and 
the objective design features supporting or undercutting that stated 
intent that may be legally and technically significant.
---------------------------------------------------------------------------

    \6\ See Sig Sauer, Inc. v. Brandon, 826 F.3d 598 (1st Cir. 2016) 
(noting that, in the firearms classification context, it is 
appropriate for ATF to consider ``a part's design features . . . as 
part of the inquiry into'' the intended use of that part). The court 
noted that ``[s]uch an objective approach to ferreting out a party's 
intent is a very familiar one in the law. See, e.g., United States 
v. Siciliano, 578 F.3d 61, 77 (1st Cir. 2009) (noting that objective 
evidence is useful to `buttress or rebut direct testimony as to 
intent'); cf. Washington v. Davis, 426 U.S. 229, 253, 96 S. Ct. 
2040, 48 L. Ed. 2d 597 (1976) (Stevens, J., concurring) (`Frequently 
the most probative evidence of intent will be objective evidence of 
what actually happened rather than evidence describing the 
subjective state of mind of the actor.'); United States v. Gaw, 817 
F.3d 1 (1st Cir. 2016) (`[T]he law is long since settled that the 
prosecution may prove its case without direct evidence of a 
defendant's guilty knowledge so long as the array of circumstantial 
evidence possesses sufficient persuasive power.' (quoting United 
States v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994))).''
---------------------------------------------------------------------------

    In recent years, some manufacturers have produced and sold devices 
(``stabilizing braces'') designed to be attached to large or heavy 
pistols and that are marketed to help a shooter ``stabilize'' his or 
her arm to support single-handed firing. The first individual to submit 
a forearm brace to determine if it changed the classification of a 
``pistol'' advised ATF that ``the AR15 pistol is very difficult to 
control with the one-handed precision stance due to the forward weight 
of the weapon and the recoil of the 5.56, 7.62 or 7.62[sic]x39 NATO 
caliber rounds.'' \7\ There, the submitter explained that the intent of 
the brace was to facilitate one-handed firing of the AR-15 pistol for 
those with limited strength or mobility due to a disability, and to 
reduce bruising to the forearm when firing with one hand. According to 
this individual, the brace concept was inspired by the needs of combat 
veterans with disabilities who still enjoy recreational shooting but 
could not reliably control heavy pistols without assistance. However, 
whereas some accessories marketed as ``stabilizing braces'' may make it 
easier for a person to fire a weapon with one hand and would not result 
in a determination that the firearm with the attached brace is a 
``rifle,'' there are other accessories also marketed as ``stabilizing 
braces'' that may be attached to a weapon platform for the purpose of 
circumventing the GCA and NFA prohibitions on the sale, delivery, 
transportation, or unregistered possession and taxation of ``short-
barreled rifles.'' As described below, the addition of an accessory 
that is

[[Page 30828]]

marketed as a ``stabilizing brace'' to a pistol does not guarantee that 
the resulting firearm will still be classified as a pistol. Indeed, 
classifying a firearm based on a limited or singular characteristic 
(i.e. the marketing label of the manufacturer that the item is a 
``stabilizing brace), ``has the potential to be significantly 
overinclusive or underinclusive.'' \8\
---------------------------------------------------------------------------

    \7\ Classification request from NST Global LLC (Nov. 8, 2012).
    \8\ Innovator Enters., Inc. v. Jones, 28 F. Supp. 3d 14, 25 
(D.D.C. 2014).
---------------------------------------------------------------------------

    Because short-barreled rifles are among the firearms considered 
unusual and dangerous, subjecting them to regulation under the NFA, it 
is especially important that such weapons be properly classified. 
Indeed, firearms with ``stabilizing braces'' have been used in at least 
two mass shootings, with the shooters in both instances reportedly 
shouldering the ``brace'' as a stock, demonstrating the efficacy as 
``short-barreled'' rifles of firearms equipped with such ``braces.'' 
\9\
---------------------------------------------------------------------------

    \9\ See, e.g., Cameron Knight, Dayton shooter used a modified 
gun that may have exploited a legal loophole USA Today (published 
Aug. 5, 2019, updated Aug. 6, 2019) https://www.usatoday.com/story/news/nation/2019/08/05/dayton-shooter-used-gun-may-have-exploited-legal-loophole/1927566001/ (the firearm used in a shooting killing 9 
people and wounding 14 had a ``pistol brace'' used to ``skirt[ ]'' 
regulation of short-barrel rifles); Melissa Macaya et al., 10 killed 
in Colorado grocery store shooting, CNN (updated Mar. 23, 2021), 
https://www.cnn.com/us/live-news/boulder-colorado-shooting-3-23-21/h_0c662370eefaeff05eac3ef8d5f29e94 (reporting that the firearm used 
in a shooting that killed 10 was an AR-15 pistol with an ``arm 
brace'').
---------------------------------------------------------------------------

    The GCA and NFA regulate ``firearms'' and, with limited exceptions, 
do not regulate individual components. Accordingly, ATF does not 
classify unregulated components or accessories alone under the GCA and 
NFA.\10\ However, components or accessories, when attached to a 
firearm, can affect the classification of a firearm because: (1) A 
component's or an accessory's likely use may be relevant in assessing 
the manufacturer's or maker's purported intent with respect to the 
design of a firearm; and (2) the design of a component or an accessory 
may result in a firearm falling within a particular statutory 
definition. Examples include: (1) The attachment of a forward secondary 
grip \11\ to a ``pistol,'' where the resulting firearm would no longer 
be designed to be held and fired with a single hand; and (2) a wallet 
holster \12\ where the handgun can be fired while inserted, thus 
changing the classification of these handguns into an ``any other 
weapon.'' See 26 U.S.C. 5845(e). A ``stabilizing brace,'' of which 
there are several variations, is yet another example of a component or 
an accessory that may change the classification of the firearm to which 
it is attached.
---------------------------------------------------------------------------

    \10\ ATF does, however, make these types of classifications 
under the Arms Export Control Act (``AECA''), 22 U.S.C. 2778, with 
respect to the permanent importation of ``defense articles.''
    \11\ See U.S. v. Black, 739 F.3d 931, 934-36 (6th Cir. 2014).
    \12\ See FFL Newsletter, August 1997, at 5-6 (https://www.atf.gov/firearms/docs/newsletter/federal-firearms-licensees-newsletter-%E2%80%93-august-1997/download).
---------------------------------------------------------------------------

    ATF's longstanding and publicly known position is that a firearm 
does not evade classification under the NFA merely because the firearm 
is configured with a device marketed as a ``stabilizing brace'' or 
``arm brace.'' \13\ When a purported ``stabilizing brace'' and an 
attached weapon's objective design features indicate that the firearm 
is actually designed and intended to be fired from the shoulder, such 
weapon may fall within the scope of the NFA, requiring registration and 
payment of tax. Accordingly, ATF must evaluate on a case-by-case basis 
whether a particular firearm configured with a ``stabilizing brace'' 
bears the objective features of a firearm designed and intended to be 
fired from the shoulder and is thus subject to the NFA. The use of a 
purported ``stabilizing brace'' cannot be a tool to circumvent the NFA 
(or the GCA) and the prohibition on the unregistered possession of 
``short-barreled rifles.''
---------------------------------------------------------------------------

    \13\ See ATF, Open Letter on the Redesign of ``Stabilizing 
Braces,'' (Jan. 16, 2015); and a letter to industry counsel 
clarifying the 2015 Open Letter, Letter for Mark Barnes, Counsel to 
SB Tactical, LLC, from Marvin G. Richardson, Assistant Director, ATF 
Enforcement Programs & Services, 90000:GM, 5000, Re: Reversal of ATF 
Open Letter on the Redesign of ``Stabilizing Braces'' (Mar. 21, 
2017) (made widely available to the public on various websites, for 
example, see https://johnpierceesq.com/wp-content/uploads/2017/03/ATF-Letter-March-21-2017.pdf and https://www.sigsauer.com/wp-content/uploads/2017/04/atf-letter-march-21-2017.pdf).
---------------------------------------------------------------------------

    As the purpose of the NFA is ``to regulate certain weapons likely 
to be used for criminal purposes,'' United States v. Thompson/Center 
Arms Co., 504 U.S. 505, 517 (1992), ATF cannot ignore the design 
features of a firearm that place it within the scope of the NFA's 
regulation. This is the case even when a manufacturer characterizes or 
markets a firearm accessory in a manner that suggests a use that does 
not correspond to its objective design. The characterization of an 
accessory by the manufacturer, including assertions in advertising, is 
not dispositive. If ATF's evaluation of a submitted sample demonstrates 
that the objective design features of the firearm, as configured, do 
not support the manufacturer's purported intent and, in fact, suggest 
an altogether different intent, ATF will classify the firearm based on 
the objective design features, as Federal law requires. See Sig Sauer, 
Inc. v. Brandon, 826 F.3d 598, 601-02 (1st Cir. 2016).
    It is estimated that manufacturers of stabilizing braces have sold 
3 million stabilizing braces since 2013. ATF has observed that the 
development and production of rifled barrel weapons with ``stabilizing 
braces'' has become more prevalent in the firearms industry and that, 
consequently, requests for classifications for this kind of firearm 
design have also increased. ATF has classified several firearms 
equipped with ``stabilizing braces'' and the objective features used to 
make these classifications have been described in letters to the 
industry as well as in criminal cases. However, ATF has received 
criticism for not more widely publishing the criteria and for not 
publishing a definitive approach in the application of that criteria. 
Therefore, to aid the firearms industry and public in understanding the 
criteria that FATD considers when evaluating firearm samples that are 
submitted with an attached ``stabilizing brace'' or similar component 
or accessory, ATF proposes a worksheet to be entitled Factoring 
Criteria for Rifled Barrel Weapons with Accessories \14\ commonly 
referred to as ``Stabilizing Braces,'' ATF Worksheet 4999 (``Worksheet 
4999''). The purpose of this worksheet is to allow individuals or 
members of the firearms industry to evaluate whether a weapon 
incorporating a ``stabilizing brace'' that they intend to submit to 
FATD or offer for sale will be considered a ``short-barreled rifle'' or 
``firearm'' under the GCA and NFA. FATD will use the criteria within 
ATF Worksheet 4999 and resulting point value when evaluating and 
classifying a submitted firearm.
---------------------------------------------------------------------------

    \14\ As used in this rule and 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. Furthermore, use of that term does not 
affect any determinations whether such items are ``defense 
articles'' under the Arms Export Control Act. Please direct all 
inquiries as to possible liability for the firearms and ammunition 
excise tax, 26 U.S.C. 4181-82, to the United States Department of 
Treasury, Alcohol and Tobacco Tax and Trade Bureau (``TTB'').
---------------------------------------------------------------------------

    These criteria and worksheet do not apply to firearms with a smooth 
bore that use shotgun ammunition. These types of firearms, commonly 
referred to as ``pistol grip shotguns,'' were never designed to be 
fired from one hand (e.g., Mossberg Shockwave, Remington Tac-

[[Page 30829]]

14). ATF has always classified these weapons as GCA ``firearms,'' not 
shotguns or pistols, as they do not incorporate a stock, like a 
shotgun, and are not designed to be fired from one hand, like a pistol. 
Thus, the addition of a ``stabilizing brace'' does not assist with 
single-handed firing, but rather redesigns the firearm to provide 
surface area for firing from the shoulder.

II. Application of ATF Worksheet 4999

    Similar to the Factoring Criteria for Weapons, ATF Form 4590 
(``Form 4590''), which is used for the importation of pistols and 
revolvers, the proposed ATF Worksheet 4999 has a point system assigning 
a weighted value to various characteristics of the fully assembled 
firearm as configured when submitted for classification. A firearm that 
accumulates less than 4 points in Section II (Accessory 
Characteristics), and less than 4 points in Section III (Configuration 
of Weapon), will generally be determined not to be designed to be fired 
from the shoulder, unless there is evidence that the manufacturer or 
maker expressly intended to design the weapon to be fired from the 
shoulder. A firearm that accumulates 4 points or more in Section II or 
Section III will be determined to be designed and intended to be fired 
from the shoulder.
    As a preliminary factor when evaluating a submitted sample, certain 
prerequisites (i.e., weapon weight and overall length) will be applied 
to determine if the firearm will even be considered as a possible 
pistol or immediately determined to be a rifle, as defined by the 
applicable statutes. As discussed, ``stabilizing braces'' were 
originally marketed as intended to assist persons with disabilities and 
others lacking sufficient grip strength to control heavier pistols. 
Therefore, attaching a ``stabilizing brace'' to a typical pistol, where 
no assistance is necessary, or attaching one to a firearm so heavy or 
difficult to control that one-handed shooting is impractical or 
inaccurate, regardless of the manufacturer's stated intent, will change 
the design of the firearm into a rifle intended to be fired from the 
shoulder. Indeed, the purported ``stabilizing brace'' would have no 
design function other than to facilitate the firing of the weapon from 
the shoulder.
    On the proposed Worksheet 4999, objective design characteristics or 
features that are common to rifles, features associated with shoulder 
stocks, and those features limiting the ability to use the 
``stabilizing brace'' as an actual brace are assigned point values. 
These point values range from 0 to 4 points based upon the degree of 
the indicator, explained as follows:

 1 point: Minor Indicator (the weapon could be fired from the 
shoulder)
 2 points: Moderate Indicator (the weapon may be designed and 
intended to be fired from the shoulder)
 3 points: Strong Indicator (the weapon is likely designed and 
intended to be fired from the shoulder)
 4 points: Decisive Indicator (the weapon is designed and 
intended to be fired from the shoulder)

    As in ATF Form 4590, the point values associated with particular 
features or designs are based upon their relative importance in 
classifying the firearm under the law. In this case, design factors 
that are more likely to demonstrate a manufacturer's or maker's intent 
to produce a ``short-barreled rifle'' and market it as a ``braced 
pistol'' accrue more points than those that reveal less evidence. There 
are certain inherent features that may support a design as a 
``stabilizing brace'' and also a shoulder stock. For example, a large 
amount of surface area on the rear of a purported ``stabilizing brace'' 
may indicate that it is designed to be fired from the shoulder and 
facilitate its use as a shoulder stock. However, that characteristic 
may also be the result of incorporating substantial stabilizing support 
that envelopes the shooter's arm (e.g., the original SB15 ``stabilizing 
brace''), allowing one-handed firing of a large pistol. These 
complexities cannot serve merely to exempt all firearms with purported 
``stabilizing braces'' from classification as ``rifles.'' Indeed, the 
statutory definitions of ``rifle'' in the GCA and NFA describe that 
type of weapon as one ``intended to be fired from the shoulder.'' 18 
U.S.C. 921(a)(7); 26 U.S.C. 5845(c). The ATF Worksheet 4999 is 
necessary to enforce the law consistently, considering the diversity of 
firearm designs and configurations.
    As stated above, if the total point value of the firearm submitted 
is equal to or greater than 4--in either Section II or III--then the 
firearm, with the attached ``stabilizing brace,'' will be determined to 
be ``designed or redesigned, made or remade, and intended to be fired 
from the shoulder,'' or a ``rifle'' under the GCA and NFA. The firearm 
will be classified as a ``short-barreled rifle'' under the GCA and NFA, 
and as an NFA ``firearm,'' if the attached barrel is also less than 16 
inches. The ATF Worksheet 4999 will provide the public and the firearms 
industry with a detailed methodology for ensuring legal compliance.
    By using ATF Worksheet 4999, ATF is ensuring uniform consideration 
and application of these criteria when evaluating firearm samples with 
attached ``stabilizing braces.'' ATF also notes that some makers or 
manufacturers have received a classification of a ``stabilizing brace'' 
without it being attached to a firearm or may have received a 
classification for a firearm that would be considered a NFA firearm 
under these criteria. Therefore, any maker or manufacturer who has 
received a classification prior to the effective date of the rule is 
encouraged to resubmit the firearm with the attached ``stabilizing 
brace'' to ensure that the prior classification is consistent with this 
new rule and to avoid any possible criminal or tax penalties for the 
continued manufacture, transfer, or possession of a NFA firearm. As 
iterated above, FATD's classifications allow industry members to plan 
and develop products that comply with the law, and thereby reduce their 
risk of incurring criminal or civil penalties, or the need for 
corrective actions, including a recall by the manufacturer. ATF 
recognizes that these factors may affect industry members and members 
of the public, as they may manufacture or already own firearms with a 
``stabilizing brace'' attached. ATF wants to assist affected persons 
and industry members and provides the additional information in this 
proposed rule to aid them in complying with Federal laws and 
regulations.

III. Proposed Rule

    Given the public interest surrounding these issues, ATF is 
proposing to amend the definition of ``rifle'' in 27 CFR 478.11 and 
479.11, respectively, by adding a sentence at the end of each 
definition. The new sentence would clarify that the term ``rifle'' 
includes any weapon with a rifled barrel and equipped with \15\ 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.
---------------------------------------------------------------------------

    \15\ Cf., e.g., United States v. Charles, 469 F.3d 402, 407-08 
(5th Cir. 2006) (analyzing whether there was sufficient evidence 
that a firearm was ``equipped with'' a silencer); United States v. 
Thompson, 82 F.3d 849, 851-53 & n.5 (9th Cir. 1996) (discussing when 
a firearm may be ``equipped with'' a silencer); United States v. 
Rodriguez, 53 F.3d 545, 546 (2d Cir. 1995) (analyzing whether a 
firearm was ``equipped with'' a silencer).
---------------------------------------------------------------------------

    Because the objective design features and characteristics 
considered will be on a new worksheet to be used by ATF, the Department 
is also publishing this proposed worksheet--ATF Worksheet

[[Page 30830]]

4999--as part of the preamble to this proposed rule and inviting 
interested members of the public and industry to provide comment. 
Similar to ATF Form 4590, used to determine if a firearm is sporting 
for purposes of importation, ATF proposes to use ATF Worksheet 4999 to 
determine if a firearm is designed and intended to be fired from the 
shoulder, as follows:

Proposed Factoring Criteria for Rifled Barrel Weapons With Accessories 
Commonly Referred to as ``Stabilizing Braces''

BILLING CODE 4410-FY-P
[GRAPHIC] [TIFF OMITTED] TP10JN21.015


[[Page 30831]]


[GRAPHIC] [TIFF OMITTED] TP10JN21.016

BILLING CODE 4410-FY-C
Section I. Prerequisites
    As a preliminary factor when evaluating a submitted sample, certain 
prerequisites will be applied to determine if the firearm, without the 
attached ``stabilizing brace,'' will even be considered a suitable 
weapon for the brace. As described above, ``stabilizing braces'' were 
originally marketed as being designed to assist persons with 
disabilities and others lacking sufficient grip strength to control 
heavier pistols. Accordingly, FATD will first examine the submitted 
sample's weapon weight and overall length.
    Weapon Weight. Weapon weight is a key prerequisite in determining 
whether a ``stabilizing brace'' is appropriately used on a weapon. A 
traditional unloaded 1911-type pistol weighs approximately 39 ounces. 
Similarly, the polymer Glock 17 weighs 39 ounces when fully loaded. 
Weighing just over 2 pounds, these firearms are easily held and fired 
with one hand without the need for a ``stabilizing brace,'' as such 
``braces'' are designed. This stands in contrast to the weight of the 
type of pistols or other firearms for which the ``stabilizing brace'' 
was designed to be attached. The AR-type pistol, a popular large 
handgun design, for example, weighs approximately 5 to 7 pounds (i.e., 
80 ounces to 112 ounces) based on its configuration. Such weight is 
more difficult to manipulate and to keep on target, indicating the 
``stabilizing brace'' is in fact intended to assist one-handed fire. 
Based on the weights stated above, firearms weighing less than 64 
ounces/4 pounds (weighed with unloaded magazine and accessories 
removed) are not considered weapons suitable for use with a 
``stabilizing brace'' accessory because they are more easily held and 
fired with one hand without the need for a ``stabilizing brace.''
    Overall Length. The overall length of a weapon is relevant in 
classifying it as a ``rifle'' or a ``pistol'' because, as a firearm 
becomes excessive in length, it is increasingly difficult to fire with 
one hand. The AR-type pistol has an overall length between 18 and 25 
inches, depending on barrel length (due to the necessary inclusion of 
the buffer tube). Other large frame pistols range between 14 and 22 
inches, such as the AK-type DRACO, HK SP5, and CZ Scorpion EVO. 
Firearms possessing an overall length between 12 and 26 inches may be 
considered pistols for which a ``stabilizing brace'' could reasonably 
be attached to support one-handed fire. Firearms with an overall length 
of less

[[Page 30832]]

than 12 inches are considered too short to indicate any need for a 
``stabilizing brace.'' Conversely, firearms exceeding 26 inches in 
overall length are impractical and inaccurate to fire one handed, even 
with a ``stabilizing brace,'' due to imbalance of the weapon.
Section II. Accessory Characteristics
    If the submitted firearm sample meets the prerequisites of weighing 
at least 64 ounces and having an overall length between 12 and 26 
inches, FATD will analyze various attachment characteristics. For FATD 
to determine that a weapon with an attached ``stabilizing brace'' is 
not, in fact, designed and intended to be fired from the shoulder, the 
accessory must not have the characteristics of a shoulder stock. These 
characteristics are as follows:
    Accessory Design. The design of the accessory when attached is a 
factor in determining whether the item is actually a ``stabilizing 
brace'' or is intended to be utilized as a stock, making the firearm 
designed to be fired from the shoulder. Specifically, because the NFA 
or GCA could be circumvented by substituting a ``stabilizing brace'' 
for a traditional shoulder stock on a ``short-barreled rifle'' 
(``stabilizing braces'' sometimes share close similarities with known 
stocks), the more features a purported ``stabilizing brace'' has in 
common with known shoulder stock designs, the more points it will 
accumulate. ``Stabilizing braces'' that are not based on any known 
shoulder stock design will accrue zero points. ``Stabilizing braces'' 
that incorporate one or more shoulder stock design features (e.g., 
adjustment levers or features that allow for the length of the device 
to be varied in a manner similar to an adjustable shoulder stock, sling 
mounts,\16\ or hardened surfaces) will accrue 1 point. Lastly, 
``stabilizing braces'' that are modified versions of known shoulder 
stock designs will accrue 2 points.
---------------------------------------------------------------------------

    \16\ The location of a sling or quick detach (QD) mount is an 
indicator as to the intended use of the accessory. A sling 
attachment at the rear of the device could be a deterrent from 
shouldering the weapon, whereas some accessories incorporate QD 
mounts consistent with known shoulder stock designs.
---------------------------------------------------------------------------

    Rear Surface Area. Rear surface area is a design characteristic 
referring to the area on the rear of the purported ``stabilizing 
brace.'' Since the purpose of a ``stabilizing brace'' is to be secured 
to a shooter's forearm, there is no advantage for a manufacturer of 
``stabilizing braces'' to include substantial surface area on the rear 
of the design unless the brace is attached to a firearm in order to 
redesign it to be fired from the shoulder. As with the other design 
characteristics, rear surface area is a consideration that must be 
evaluated in light of the overall design. Clearly, larger, more 
substantial ``stabilizing braces'' may have more surface area in which 
to shoulder a firearm. However, while smaller, less substantial 
``stabilizing brace'' designs may have reduced surface area, this 
shouldering area may still be similar to known shoulder stock designs 
upon which they are based. The reduced contact area of the flaps to the 
shooter's forearm, and the surface area necessary to shoulder the 
weapon work in tandem to indicate whether the purported ``stabilizing 
brace'' is, in fact, a shouldering device.
    Any ``stabilizing brace'' that incorporates a surface area feature 
that clearly makes it difficult to use as a shouldering device will 
accrue zero points. A ``stabilizing brace'' accessory that is designed 
with only a minimal rear surface area (e.g., a ``fin-type'') with which 
a weapon could possibly be shouldered will accrue 1 point. A 
``stabilizing brace'' accessory that is designed with a rear surface 
area sufficient to shoulder the firearm, or approximating the rear 
surface of known shoulder stocks, which allows shouldering the firearm, 
will accrue 2 points. Finally, a ``stabilizing brace'' accessory that 
features material clearly designed to increase rear surface area to 
facilitate shoulder firing will accrue 3 points.
    Adjustability. When ATF was first asked to classify an adjustable 
``stabilizing brace,'' it responded that adjustability is ``a feature 
commonly associated with butt stocks/shoulder stocks as well as 
firearms designed and intended to be fired from the shoulder.'' \17\ 
Although ATF ultimately determined that adjustability, in and of 
itself, is not determinative of a ``stabilizing brace's'' design 
function on a firearm, it remains a significant indicator that the 
device is designed and intended to be shouldered. Weapons that do not 
incorporate an adjustable ``stabilizing brace'' will accrue zero 
points, while ``stabilizing brace'' designs that are adjustable will 
accrue 2 points.
---------------------------------------------------------------------------

    \17\ See FTISB Letter 303984, at 3 (Nov. 30, 2015).
---------------------------------------------------------------------------

    Stabilizing Support. To be effective, a ``stabilizing brace'' must 
provide support for the weapon through sufficient and stable contact 
with the shooter's forearm. Original ``stabilizing brace'' designs used 
a substantial amount of hardened material intended to contact a 
significant portion of the shooter's forearm, and a strap to secure the 
device and limit movement. Later iterations substantially reduced these 
design features, mimicking the outline of low-profile (i.e., slim 
design) shoulder stocks. These later designs resulted in less contact 
with the forearm and instead rely heavily upon a Velcro strap to 
perform the function of the more substantial flaps present in earlier 
designs. While the strap may be used to tighten the minimal polymer 
flaps on top of the arm, these later designs were far less effective at 
providing stabilizing support--in contrast to the originally stated 
intent--and increase bruising to the forearm when firing with one hand. 
These later designs were also similar to the tactical shoulder stocks 
widely advertised and sold in the marketplace.
    Stabilizing support is a vital characteristic because it provides 
evidence to evaluate the purported purpose of the attached device, 
which is to provide shooters with forearm support for firing large, 
heavy handguns. It is therefore important for ATF to consider the 
various ``stabilizing brace'' designs and the forearm support they 
provide. ATF has categorized these different ``stabilizing brace'' 
designs into three broad categories: Counterbalance, ``Fin-type'', and 
``Cuff-type.''
    Counterbalance designs \18\ utilize the weight of the weapon as a 
lever to push the ``stabilizing brace'' into the forearm and provide 
stability for firing. These designs do not typically include a strap 
because the ``stabilizing brace'' itself contacts the side and bottom 
of the shooter's arm and is held in place by the weight of the firearm, 
using the shooter's hand as the fulcrum. However, whether characterized 
as a method of storage or otherwise, there is no forearm stabilizing 
purpose in a Counterbalance design that folds closed such that it can 
no longer be used as a ``stabilizing brace.'' Indeed, this type of 
design may create rear surface area such that the ``stabilizing brace'' 
may be suitable only as a shoulder stock when closed. The folding 
feature of the Counterbalance design stands in contrast to the 
purported intent of the device. This feature presents some evidence 
that a firearm equipped with a Counterbalance ``stabilizing brace'' is 
intended to be fired from the shoulder and therefore will accrue 1 
point.
---------------------------------------------------------------------------

    \18\ See, e.g., US Patent 10,690,442 B2 June 23, 2020.
---------------------------------------------------------------------------

    ``Fin-type'' designs incorporate a thin ``blade'' designed to rest 
against the shooter's arm, and feature a minimal, thin rear surface 
area. Although originally submitted with the explanation that these 
devices would incorporate an arm strap or that a sling

[[Page 30833]]

could be wrapped around the shooter's arm and provide additional 
support,\19\ the majority of these accessories are now marketed and 
sold without such a strap, thus virtually eliminating their 
effectiveness as a ``stabilizing brace.'' ``Fin-type'' accessories that 
do not incorporate an arm strap of suitable length or functionality 
will accrue 2 points, while those that incorporate an arm strap long 
enough to secure a person's forearm consistent with the purported 
intent will not accrue any points (zero).
---------------------------------------------------------------------------

    \19\ See FTISB Letter 302672 (Sept. 8, 2014).
---------------------------------------------------------------------------

    ``Cuff-type'' designs are by far the most prevalent of all 
``stabilizing braces,'' consisting of over two dozen different unique 
designs. ``Cuff-type'' ``stabilizing braces'' have evolved over the 
past decade, from non-adjustable, large articles into compact designs, 
clearly based on, or modified from, shoulder stocks. ``Cuff-type'' 
``stabilizing braces'' vary greatly in design and the classification of 
firearms with these types of ``stabilizing braces'' is the most complex 
of the three categories. The original ``cuff-type'' designs 
incorporated large ``arm flaps'' to fully envelop the forearm and also 
a strap to limit movement of the cuff by tightening it. These designs 
were contoured so that a shooter's forearm could easily fit through the 
cuff and the strap would tighten around the cuff to provide additional 
arm support. These designs were clearly devised to secure the firearm 
to the shooter's forearm and were effective in doing so. Therefore, a 
``cuff-type'' ``stabilizing brace'' that fully wraps around the 
shooter's forearm (e.g., SB15/SBX-K) will not accrue any points (zero).
    Later designs of the ``cuff-type'' braces possessed arm flaps that 
lacked contouring and did not provide a suitable opening for the 
shooter's forearm. These designs relied on softer materials that, while 
saving on production costs, mimicked the design of popular shoulder 
stocks and did not provide the same support for single-handed firing of 
large handguns. These designs could be secured to the shooter's 
forearm, but the brace rested on top of the arm, and relied on the 
Velcro strap to secure the firearm to the shooter's arm. Because they 
are less effective at the stated purpose of stabilizing one-handed 
firing, it is appropriate that weapons with such devices attached 
accrue points as these are more evidently designed and intended for 
another purpose, which is to be fired from the shoulder. Such ``cuff-
type'' ``stabilizing braces'' that partially wrap around the shooter's 
forearm (e.g., SOB/SB-Mini) will accrue 1 point. Finally, those 
``stabilizing braces'' incorporating arm flaps that do not wrap around 
the shooter's forearm (e.g., SBA3/SB-PDW), thereby providing no arm 
support, will accrue 2 points.
    Further, with the later ``split stock'' design, which is another 
``cuff-type'' design where the flaps lack arm contouring, ``stabilizing 
brace'' developers simply used known or existing stocks, added a slot 
down the center of the stock, or otherwise slightly altered the 
original shoulder stock design and contended that these were 
``stabilizing braces'' like any other ``cuff-type'' design. However, 
the purpose of such designs is clearly indicated by the fact that they 
are far more effective when utilized as a shoulder stock than a 
``stabilizing brace.'' These types of ``stabilizing braces'' are 
difficult to attach to the arm, provide minimal support in one-handed 
shooting, and are not effective to use as a ``stabilizing brace.'' As 
such, any ``stabilizing brace'' that is configured as a ``split-stock'' 
(e.g., SBT/FS1913) will accrue 3 points.
Section III. Configuration of Weapon
    This section will be used to evaluate the entire weapon including 
how the ``stabilizing brace'' is mounted to the firearm as well as the 
effectiveness of the brace in single-handed firing as opposed to firing 
from the shoulder. It will also consider all of the accessories that 
have been added to affect firing that will be used in conjunction with 
the ``stabilizing brace.''
    Length of Pull. Length of pull is a common measurement of firearms 
that describes the distance between the trigger and the center of the 
shoulder stock. This is a measurement that may be used to fit a firearm 
to a particular shooter. Generally, taller shooters require a longer 
length of pull and shorter shooters require a shorter length of pull. 
Adjustable shoulder stocks are commonly available. Patents, advertising 
material, and other resources make clear that adjustability is meant to 
facilitate changing the length of pull.\20\ Such length of pull 
measurements are far less relevant when a pistol is involved because a 
shooter merely requires a device that reaches from the back of the 
firearm to the forearm. Far less variation exists between shooters in 
this way. A firearm with a ``stabilizing brace'' will accrue more 
points the further it is positioned rearward, indicating that it is 
intended for use as a shouldering device. Firearms with ``stabilizing 
braces'' that incorporate a length of pull of less than 10\1/2\ inches 
will not accrue any points (zero). However, a length of pull that is 
between 10\1/2\ but under 11\1/2\ inches will accrue 1 point, while 
11\1/2\ but under 12\1/2\ will accrue 2 points, 12\1/2\ but under 13\1/
2\ will accrue 3 points, and a length of pull of 13\1/2\ inches or more 
will accrue 4 points as this is a standard length of pull for rifles 
and is a decisive indicator that the firearm is intended to be fired 
from the shoulder.
---------------------------------------------------------------------------

    \20\ See, e.g., U.S. Patent 7,762,018 B1 (July 27, 2010) (in 
which invention ``provides structure for mounting the stock body and 
contains structure for the pre-set system utilized by stock bodies 
which are adjustable for length. The length of pull system comprises 
a series of pre-drilled threaded holes 56, which are off-set from a 
center axis. . . .'').
---------------------------------------------------------------------------

    Attachment Method. A ``stabilizing brace's'' attachment method 
often provides critical insight as to how a firearm is intended to be 
used. ``Stabilizing braces'' attached to a standard-length AR-type 
pistol buffer tube (extending 6 to 6\1/2\ inches from the rear of the 
firearm) will not accrue any points (zero). Use of an AR-type pistol 
buffer tube with adjustment notches, an adjustable rifle buffer tube, 
or an adjustable PDW-type guide rail, will accrue 1 point as each 
indicates the ability to adjust the ``stabilizing brace.'' An extended 
AR-type pistol buffer tube (greater than 6\1/2\ inches), folding 
adaptors, and the use of ``spacers'' are all indicators that the 
``brace'' is being positioned to serve as a shouldering device because 
it increases the ``length of pull,'' thereby allowing a shooter to fire 
the weapon from the shoulder. Therefore, such firearm will accrue 2 
points. Additionally, a shoulder stock that has been modified to 
incorporate a ``stabilizing brace,'' or any attachment method that 
results in an unusable aim-point when the ``stabilizing brace'' is 
attached is also a strong indicator the weapon is actually intended to 
be shoulder fired and will accrue 3 points.
    ``Stabilizing Brace'' Modifications/Configuration. ``Stabilizing 
brace'' accessories that have been modified from their original 
configuration will accrue additional points. Any ``cuff-type'' or 
``fin-type'' accessory, which incorporates an arm strap too short to 
wrap around the shooter's arm or is manufactured from an elastic 
material (eliminating stabilizing support), will accrue 2 points, as 
will a ``fin-type'' accessory lacking an arm strap. Further, if these 
modifications reconfigure the device into a shoulder stock, 4 points 
will be accrued. These modifications could include taping or strapping 
the arm flaps together on a ``cuff-type'' ``stabilizing brace,'' or 
adding shouldering surface to a ``fin-type'' ``stabilizing brace.''

[[Page 30834]]

    Peripheral Accessories. ATF has examined multiple firearms that 
include peripheral accessories, often added by the end user, that 
indicate the weapon is not designed and intended to be held and fired 
by a single hand. Such accessories include secondary grips, hand-stops, 
flip-up rifle-type sights, sights/scopes with limited eye-relief, and 
bipod/monopods.
    Certain hand-stop attachments have been determined to protect a 
shooter's off-hand from being placed in front of the barrel and do not, 
in and of themselves, redesign a pistol to be fired with more than one 
hand. However, the presence of such an attachment is an indication the 
weapon may not be intended to be fired with a single hand, but rather 
intended to be fired from the shoulder. As such, the presence of a 
hand-stop will result in 2 points being accrued. Further, the presence 
of any secondary grip on a weapon with a ``stabilizing brace'' 
accessory changes the classification from a one-handed to a two-handed 
weapon, thereby disqualifying it from being classified as a ``braced 
pistol,'' and resulting in the subject firearm accruing 4 points.
    Installed sights are also indicators as to the intended use of a 
firearm with an attached ``stabilizing brace.'' ATF has examined 
numerous AR-type firearms with ``stabilizing brace'' accessories that 
lack any sight or that incorporate rifle-type flip-up or back-up iron 
sights (``BUIS''), which are only partially usable when firing the 
weapon with one hand. As such, the presence of this type of sight or 
lack of any sight will accrue 1 point. Further, firearms that 
incorporate a reflex sight (e.g., Red Dot) in conjunction with a flip-
to-the-side (``FTS'') magnifier with limited eye relief (distance 
between the shooter's eye and rear of sight/scope) will accrue 2 
points. Finally, any weapon incorporating a sight or scope that 
possesses an eye relief (distance between the shooter's eye and rear of 
sight/scope) incompatible with one-handed firing will accrue 4 points, 
as this is a decisive indicator that the ``stabilizing brace'' is being 
utilized as a shouldering device. For example, a sight would be 
incompatible with one-handed firing if it cannot be seen clearly when 
held at arm's length, thus showing the weapon must be shouldered in 
order for the sight to be used.
    Firearms that incorporate or are designed to rest on bipod/monopod 
accessories generally are not designed and intended to be held and 
fired by a single hand. Much like hand-stops, bipods/monopods do not 
necessarily, in and of themselves, change the classification of a 
``pistol'' when installed. However, bipods/monopods offer ``stabilizing 
support'' to the firearms to which they are attached, which is often 
counter-intuitive to an attached ``stabilizing brace,'' for example, 
Counterbalance ``stabilizing brace'' designs. Therefore, attachment of 
a bipod/monopod will accrue 2 points, regardless of the type of 
``stabilizing brace'' attached.
    Finally, any complete firearm with an installed ``stabilizing 
brace'' that weighs more than 120 ounces (7\1/2\ pounds), incorporating 
end user accessories, will be considered too heavy to be fired with one 
hand, and will accrue 4 points. The firearm will be weighed as 
configured, with an unloaded magazine. The upper limit of 120 ounces 
takes into account that in order to fire the weapon, the shooter will 
insert a loaded magazine, which will typically add an additional 16-32 
ounces. For example, a loaded 30-round AR-type magazine with .223 
caliber ammunition weighs approximately 16 ounces (1 pound), while a 
loaded 30-round AK-type magazine with 7.62x39 caliber ammunition weighs 
approximately 29 ounces (1.8 pounds). Additionally, a 20-round magazine 
with .308 Winchester caliber ammunition weighs approximately 23 ounces 
(1.4 pounds). These are typical types of magazines used with one-handed 
``stabilized'' firing. Firearms may reach a weight where the use of a 
``stabilizing brace'' provides insufficient support for one-handed 
firing. Indeed, the existence of a ``stabilizing brace'' on firearms 
that are too heavy to be ``intended to be fired by one hand'' indicates 
that the purported ``stabilizing brace'' is actually intended as a 
shouldering device.
    Even if a weapon accrues less than 4 points in each section, 
attempts by a manufacturer or maker to circumvent Federal law by 
attaching purported ``stabilizing braces'' in lieu of shoulder stocks 
may result in classification of those weapons as ``rifles'' and 
``short-barreled rifles.'' While some manufacturers have recognized 
that there is a market advantage in designing and selling ``short-
barreled rifles'' as ``pistols'' to customers seeking to avoid tax and 
registration requirements, ``stabilizing braces'' are not a method by 
which the Federal statutes may be circumvented. Therefore, efforts to 
advertise, sell, or otherwise distribute ``short-barreled rifles'' as 
such will result in a classification as a ``rifle'' regardless of the 
points accrued on the ATF Worksheet 4999 because there is no longer any 
question that the intent is for the weapon to be fired from the 
shoulder.

IV. Application of the Proposed Worksheet to Common ``Stabilizing 
Braces''

    For the purpose of explaining how the factoring criteria in 
Worksheet 4999 would be implemented, ATF applied the Worksheet 4999 to 
three weapons with common ``stabilizing braces'' attached: An AR-type 
firearm with an SB-Mini accessory, an AR-type firearm with an SBA3 
accessory, and an AR-type firearm with a Shockwave Blade accessory. The 
results of that process follow.

A. AR-Type Firearm With SB-Mini Accessory

BILLING CODE 4410-FY-P

[[Page 30835]]

[GRAPHIC] [TIFF OMITTED] TP10JN21.017


[[Page 30836]]


[GRAPHIC] [TIFF OMITTED] TP10JN21.018

SB-Mini Accessory

[[Page 30837]]

[GRAPHIC] [TIFF OMITTED] TP10JN21.019

    Applying the criteria in Section I, the above firearm was 
determined to weigh approximately 91 ounces and have an overall length 
of 25\1/8\ inches, and thus would be a suitable host firearm for a 
``stabilizing brace'' accessory. In Section II, the firearm would score 
a total of 3 points. The firearm with attached SB-Mini (sometimes 
referred to as the SBL-Mini) accessory would score 0 points in 
Accessory Design for not being based on a known shoulder stock design. 
In Rear Surface Area, the firearm would accrue 2 points for possessing 
a rear surface useful for shouldering the firearm. In Adjustability, 
the firearm would accrue 0 points for not being an adjustable design. 
Finally, in Stabilizing Support the firearm would accrue 1 point, as 
the flaps on the ``Cuff-type'' design only partially wrapped around a 
shooter's forearm. As the firearm would score 3 points in Section II, 
it would be able to proceed to Section III.
    Under Section III, the firearm would score a total of 3 points. In 
Length of Pull, the firearm was determined to possess a length of pull 
of approximately 11\3/8\ inches; thereby it would accrue 2 points. In 
Attachment Method, the firearm would accrue 0 points as the SB-Mini 
accessory is attached using a standard-length AR-type pistol buffer 
tube. In the ``Stabilizing Brace'' Modification category, the firearm 
was determined to have no modifications, and would accrue 0 points. 
Finally, in the Peripheral Accessories, the firearm possessed rifle-
type flip-up sights, which would accrue 1 point. As evaluated, no other 
accessories were installed onto the firearm. The firearm, in this 
configuration, would score a total of 3 points in this section, and 
accordingly would be determined not to be designed and intended to be 
fired from the shoulder. Therefore, since each section is evaluated 
separately, the firearm, as submitted, would be classified as a pistol 
with an attached ``stabilizing brace'' accessory.

B. AR-Type Firearm With SBA3 Accessory

[[Page 30838]]

[GRAPHIC] [TIFF OMITTED] TP10JN21.020


[[Page 30839]]


[GRAPHIC] [TIFF OMITTED] TP10JN21.021

SBA3 Accessory

[[Page 30840]]

[GRAPHIC] [TIFF OMITTED] TP10JN21.022

    ATF evaluated an AR-type firearm with the SBA3 accessory, and would 
determine the above firearm to be designed and intended to be fired 
from the shoulder. Applying the criteria in Section I, the firearm was 
determined to weigh approximately 89 ounces and have an overall length 
of 25\1/8\ inches, and thus would be a suitable host firearm for a 
``stabilizing brace'' accessory. In Section II, the firearm would score 
a total of 8 points, precluding it from proceeding to Section III. The 
firearm with attached SBA3 would accrue 1 point in Accessory Design for 
incorporating known shoulder stock features, such as an adjustment 
lever, a Quick Detach (QD) sling mount, and incorporation of hardened 
polymer-type material. In Rear Surface Area, the firearm would accrue 3 
points, as the SBA3 accessory has additional rear surface material 
added for use in shouldering. In Adjustability, the firearm would 
accrue 2 points for being an adjustable design. Finally, in Stabilizing 
Support the firearm would accrue 2 point, as the flaps on the ``Cuff-
type'' design fail to wrap around a shooter's forearm.
    Although an evaluation under Section III is not necessary as the 
firearm would have already been determined to be designed to be fired 
from the shoulder, the firearm was further evaluated for informational 
purposes. Under Section III, the firearm would score a total of 5 
points. In Length of Pull, the firearm was determined to possess a 
length of pull of approximately 12\1/2\ inches; thereby it would accrue 
3 points. In Attachment Method, the firearm would accrue 1 point as the 
SBA3 accessory utilizes an M4-type rifle buffer tube. Under the 
``Stabilizing Brace'' Modification category, the firearm was determined 
to have no modifications, and would accrue 0 points. Finally, in 
Peripheral Accessories, the firearm possessed rifle-type flip-up 
sights, and thereby would accrue 1 point. As evaluated, no other 
aftermarket components or accessories were installed onto the firearm. 
The firearm, in this configuration, would score a total of 5 points in 
this section, and would be determined to be designed and intended to be 
fired from the shoulder. Therefore, the evaluated firearm, as 
submitted, would be classified as a ``rifle.'' Further, having a rifled 
barrel less than 16 inches in length, the firearm would be properly 
classified as a ``short-barreled rifle'' and an NFA ``firearm.''

C. AR-Type Firearm With Shockwave Blade Accessory

[[Page 30841]]

[GRAPHIC] [TIFF OMITTED] TP10JN21.023


[[Page 30842]]


[GRAPHIC] [TIFF OMITTED] TP10JN21.024

Shockwave Blade Accessory on KAK Tube Without Strap

[[Page 30843]]

[GRAPHIC] [TIFF OMITTED] TP10JN21.025

BILLING CODE 4410-FY-C
    ATF evaluated an AR-type firearm with the Shockwave Blade 
accessory, and would determine that the firearm, as configured, would 
be designed and intended to be fired from the shoulder. Applying the 
criteria in Section I, the firearm was determined to weigh 
approximately 93 ounces and have an overall length of 23 inches, and 
thus would be a suitable host firearm for a ``stabilizing brace'' 
accessory. In Section II, the submitted firearm would score a total of 
5 points, precluding it from proceeding to Section III. The submitted 
firearm with attached Shockwave Blade accessory would accrue 0 points 
in Accessory Design for not incorporating known shoulder stock 
features, such as an adjustment lever. In Rear Surface Area, the 
firearm would accrue 1 point, as the Shockwave Blade accessory has 
minimized rear surface area discouraging shouldering. In Adjustability, 
the firearm would accrue 2 points because it is installed onto a KAK-
type tube that incorporates adjustment notches for adjustability. 
Finally, in Stabilizing Support, the firearm would accrue 2 points for 
being submitted without an arm strap--greatly reducing any stabilizing 
support.
    Although an evaluation under Section III would not be necessary as 
the firearm would already have been determined to be designed to be 
fired from the shoulder, the firearm was further evaluated for 
informational purposes. Under Section III, the firearm would score a 
total of 14 points. In Length of Pull, the firearm was determined to 
possess a length of pull of approximately 13\1/4\ inches, and thereby 
would accrue 3 points. In Attachment Method, the firearm would accrue 1 
point as the Shockwave Blade accessory utilizes a KAK tube with 
adjustment notches. Under the ``Stabilizing Brace'' Modification 
category, the firearm would accrue 2 points for lack of an arm strap. 
Finally, in Peripheral Accessories, the firearm would accrue an 
additional 8 points. The firearm was submitted with a secondary forward 
grip, a determinative indicator that the weapon is not designed to be 
held and fired with one hand; thereby it would accrue 4 points. 
Further, the firearm would accrue an additional 4 points due to it 
being submitted with a scope that has incompatible eye relief for one-
handed firing (where the weapon must be fired from the shoulder in 
order to use the sight). The submitted firearm, as configured, would 
score a total of 14 points in this section, and would be determined to 
be designed and intended to be fired from the shoulder. Therefore, the 
firearm would be classified as a ``rifle.'' Further, having a rifled 
barrel less than 16 inches in length, the firearm would be properly 
classified as a ``short-barreled rifle'' and an NFA ``firearm.''

V. Options for Affected Persons

    As mentioned, ATF wants to assist affected persons or companies and 
is providing additional information to aid them in complying with 
Federal laws and regulations. Below are options for those persons that 
may be affected upon publication of a final rule.

A. Current Unlicensed Possessors

    In order to comply with the provisions of the NFA, current 
unlicensed possessors of a firearm equipped with a ``stabilizing 
brace'' and a barrel length of less than 16 inches that would qualify 
as a ``short-barreled rifle'' as indicated on the ATF Worksheet 4999 
contained in this proposed rule would need to take one of the following 
actions before the effective date of a final rule.
    (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. Exercising this option would 
mean the pistol would no longer be ``equipped with'' the stabilizing 
brace within the meaning of the proposed rule.
    (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, www.atf.gov.
    (4) Turn the firearm into your local ATF office.
    (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. Documentation 
establishing submission of Form 1 includes, but is not limited

[[Page 30844]]

to, eForm submission acknowledgement, proof of payment, or copy of Form 
1 submission with postmark documentation.

B. Federal Firearms Licensees Not Having Paid Special (Occupational) 
Tax (``SOT'') as a Class 2 Manufacturer Under the NFA

    In order to comply with the provisions of the NFA, Federal firearm 
licensees not having paid SOT as a Class 2 manufacturer under the NFA 
currently in possession of a firearm equipped with a ``stabilizing 
brace'' and a barrel length of less than 16 inches that would qualify 
as a ``short-barreled rifle'' under the ATF Worksheet 4999 contained in 
this proposed rule would be required to take one of the following 
actions before the effective date of a final rule.
    (1) Options 1-4 listed above.
    (2) Complete and submit an ATF 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. Documentation 
establishing submission of Form 1 includes, but is not limited to, 
eForm submission acknowledgement, proof of payment, or copy of Form 1 
submission with postmark documentation. An importer, manufacturer, or 
dealer licensed under the GCA, but not the NFA, may not engage in the 
business of dealing in NFA firearms prior to compliance with the 
payment of the SOT.

C. Manufacturers Licensed Under GCA and Qualified Under NFA

    In order to comply with the provisions of the NFA, manufacturers 
licensed under the GCA and having paid SOT as a Class 2 manufacturer 
under the NFA currently in possession of a firearm equipped with a 
``stabilizing brace'' and a barrel length of less than 16 inches that 
would qualify as a ``short-barreled rifle'' as indicated on the ATF 
Worksheet 4999 contained in this proposed rule would be required to 
take one of the following actions before the effective date of a final 
rule.
    (1) Options 1-4 listed above.
    (2) Complete and submit an ATF Form 2, Notice of Firearms 
Manufactured or Imported.

VI. Statutory and Executive Order Review

A. Executive Orders 12866 and 13563

    Executive Order 12866 (Regulatory Planning and Review) directs 
agencies to assess the costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic 
benefits, environmental benefits, public health and safety effects, 
distributive impacts, and equity). Executive Order 13563 (Improving 
Regulation and Regulatory Review) emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility.
    The Office of Management and Budget (``OMB'') has determined that 
this proposed rule is a ``significant regulatory action'' that is 
economically significant under section 3(f) of Executive Order 12866, 
because the rule will have an annual effect on the economy of $100 
million or more. Accordingly, the rule has been reviewed by OMB. As 
required by OMB Circular A-4 (available at http://www.whitehouse.gov), 
ATF has prepared an accounting statement showing the classification of 
expenditures associated with the NPRM.

                                        Table 1--OMB Accounting Statement
----------------------------------------------------------------------------------------------------------------
                                                                                   Units
                                                                     ---------------------------------
              Category                Primary    Minimum    Maximum                           Period     Notes
                                      estimate   estimate   estimate    Dollar    Disc (%)   covered
                                                                         year                (years)
----------------------------------------------------------------------------------------------------------------
                                                    Benefits
----------------------------------------------------------------------------------------------------------------
Annualized monetized benefits ($           N/A        N/A        N/A       2020          7         10
 Millions/year)....................        N/A        N/A        N/A       2020          3         10
----------------------------------------------------------------------------------------------------------------
Annualized quantified..............        N/A        N/A        N/A       2020          7         10
                                           N/A        N/A        N/A       2020          3         10
----------------------------------------------------------------------------------------------------------------
Qualitative........................  --Prevents manufacturers and individuals from circumventing the
                                     requirements of the NFA.
                                     --Enhances public safety by reducing the criminal use of such
                                     firearms, which are easily concealable from the public and first
                                     responders.
----------------------------------------------------------------------------------------------------------------
                                                      Costs
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs ($           $125.7     $125.7     $303.5       2020          7         10
 Millions/year)....................      114.7      114.7      278.2       2020          3         10
----------------------------------------------------------------------------------------------------------------
Annualized quantified..............        N/A        N/A        N/A       2020          7         10
                                           N/A        N/A        N/A       2020          3         10
----------------------------------------------------------------------------------------------------------------
Qualitative (unquantified).........  N/A
----------------------------------------------------------------------------------------------------------------
                                                    Transfers
----------------------------------------------------------------------------------------------------------------
Federal Annualized Monetized ($          $20.1      $20.1      $46.7       2020          7         10
 Millions/year)....................       17.2       17.2       40.0       2020          3         10
----------------------------------------------------------------------------------------------------------------

[[Page 30845]]

 
From/To............................  From: Individuals and FFLs
                                     To: Federal Government
----------------------------------------------------------------------------------------------------------------
Other Annualized monetized                 N/A        N/A        N/A       2020          7         10
 transfers ($ Million/year)........        N/A        N/A        N/A       2020          3         10
----------------------------------------------------------------------------------------------------------------
From/To............................  From: N/A
                                     To: N/A
----------------------------------------------------------------------------------------------------------------
                                                     Effects
----------------------------------------------------------------------------------------------------------------
State, local, and/or tribal
 governments.......................  The rule would not have a significant intergovernmental mandate,
                                     significant or unique effect on small governments, or have
                                     Federalism or Tribal implications.
----------------------------------------------------------------------------------------------------------------
Small businesses...................  Approximately 3 manufactures of ``stabilizing braces'' would be
                                     significantly affected by more than 10% of their revenue. May
                                     affect 13,210 Type 1 FFLs and 3,881 Type 7 FFLs. Most Type 1
                                     FFLs are small businesses, but likely would need to make less
                                     than $2,357 in revenue to have an impact of 10 percent or more.
----------------------------------------------------------------------------------------------------------------
Wages..............................  N/A
----------------------------------------------------------------------------------------------------------------
Growth.............................  N/A
----------------------------------------------------------------------------------------------------------------

    Table 2 summarizes the affects that this proposed rule would have 
on the industry and public.

      Table 2--Summary of Affected Population, Costs, and Benefits
------------------------------------------------------------------------
                                      Affected populations, costs, and
             Category                             benefits
------------------------------------------------------------------------
Affected Population...............   8 Manufacturers of affected
                                     ``stabilizing braces.''
                                     3,881 Manufacturers of
                                     ``short-barreled rifles'' that have
                                     a ``stabilizing brace'' attachment.
                                     13,210 Dealers of ``short-
                                     barreled rifles'' that have a
                                     ``stabilizing brace'' attachment.
                                     1.4 million firearm owners
                                     who have purchased pistols with
                                     ``stabilizing braces'' attached and
                                     those who intend to purchase them
                                     in the future.
Costs (annualized)................   $125.7 million at 7%.
                                     $114.7 million at 3%.
Total Quantified from Industry, to   $20.1 million at 7%
 the Government (annualized).        $17.2 million at 3%.
Unquantified Benefits.............   Prevents manufacturers and
                                     individuals from circumventing the
                                     requirements of the NFA.
                                     Enhances public safety by
                                     reducing the criminal use of such
                                     firearms, which are easily
                                     concealable from the public and
                                     first responders.
------------------------------------------------------------------------

Need for Federal Regulatory Action
    One of the reasons ATF is considering this proposed regulation is 
the failure of the market to compensate for negative externalities 
caused by commercial activity. A negative externality can be the by-
product of a transaction between two parties that is not accounted for 
in the transaction. A negative externality addressed by this proposed 
rule is that individuals and manufacturers may try to use purported 
``stabilizing braces'' and affix them to firearms to circumvent the 
requirements of the NFA, which requires registration and taxes to be 
paid on the making and transfer of NFA weapons. Further, Congress chose 
to regulate these items more stringently, finding them to be especially 
dangerous to the community if not regulated since they are used for 
violence and criminal activity. See United States v. Gonzalez, No. 
2:10-cr-00967 CW, 2011 WL 5288727, at *5 (D. Utah Nov. 2, 2011) 
(``Congress specifically found that `short-barreled rifles are 
primarily weapons of war and have no appropriate sporting use or use 
for personal protection.'' (quoting S. Rep. No. 90-1501, at 28 
(1968))). Therefore, if persons can circumvent the NFA by effectively 
making unregistered ``short-barreled rifles'' by using an accessory 
such as a ``stabilizing brace,'' these weapons can continue to 
proliferate and could pose an increased public safety problem given 
that they are easily concealable.
Population
    Based on subject matter experts (``SMEs''), ATF estimates that 
there are at least eight manufacturers of ``stabilizing braces.'' 
Anecdotal evidence from the manufacturers of the affected ``stabilizing 
braces'' indicates that the manufacturers have sold between 3 million 
and 7 million ``stabilizing braces'' between the years 2013 to 2020 or 
over the course of eight

[[Page 30846]]

years. For the purposes of this analysis, ATF uses 3 million as the low 
estimate and primary estimate of affected ``stabilizing braces.'' This 
proposed rule may affect upwards of 1.4 million individuals, 13,210 
Type 1 Federal Firearms Licensees (``FFLs''), and 3,881 Type 7 FFLs. 
For more details, please refer to Chapter 2 and each of the specific 
cost chapters of the standalone Regulatory Impact Analysis (``RIA'') 
for this proposed rule.
Scenario 1: Turn in Firearm to ATF
    One option for current owners of firearms with ``stabilizing 
braces'' to comply with the proposed rule would be to turn in the 
firearm with the attached stabilizing brace to ATF for disposal. As the 
individual possessing the firearm would be permitted to simply remove 
the ``stabilizing brace'' and dispose of it, while retaining the 
firearm, ATF believes it would be unlikely that individuals would turn 
in their entire firearm into ATF to be destroyed. As ATF does not 
anticipate anyone choosing to turn in a firearm with an attached 
stabilizing brace into ATF for disposal, so no cost was attributed to 
this scenario. Because braces themselves, as firearm accessories or 
components, are generally not regulated items, ATF requests comments 
regarding the population, methodology, and scope of this scenario.
Scenario 2: Convert Firearm Into a Long-Barreled Rifle
    Another scenario is for individuals and FFLs to retain the 
``stabilizing brace'' but convert the firearm into a firearm under the 
GCA rather than under the NFA. More specifically, they may convert the 
firearm into a long-barreled rife. ATF anticipates the minimum need is 
to purchase a long barrel and handrails. The average cost of a long 
barrel is $198.\21\ The average cost for handrails is $212,\22\ making 
the cost per firearm $410.\23\ ATF estimates that the average affected 
individual may own approximately two firearms with an attached 
``stabilizing brace'' while affected FFLs own an average of 3 firearms 
with an attached ``stabilizing brace.'' The total cost for this 
scenario is $125.1 million. For more details, please refer to Chapter 4 
of the standalone RIA. Because braces themselves are generally not 
regulated items, ATF requests comments regarding the population, 
methodology, and scope of this scenario.
---------------------------------------------------------------------------

    \21\ https://www.brownells.com/rifle-parts/barrel-parts/rifle-barrels/ar-15-6mm-arc-barrels-heavy-profile-prod135844.aspx 
(accessed May 10, 2021); https://www.hinterlandoutfitters.com/mossberg-92062-rifled-barrel-wsights-gauge-slug-p-13798.html 
(accessed May 10, 2021); https://www.hinterlandoutfitters.com/mossberg-90831-ulti-barrel-wparkerized-finish-accu-chokes-gauge-ulti-slug-p-13809.html (accessed May 10, 2021); https://www.gunpartscorp.com/category/barrels/rifle-barrels/sig-sauer/516-sig (accessed May 10, 2021); https://www.gunpartscorp.com/category/barrels/rifle-barrels/sig-sauer/516-sig (accessed May 10, 2021); 
https://www.gunpartscorp.com/category/barrels/rifle-barrels/colt/lightning-cf-rifle (accessed May 10, 2021); https://www.midwayusa.com/product/1017600744 (accessed May 10, 2021); 
https://www.midwayusa.com/product/1017600744 (accessed May 10, 
2021); https://www.midwayusa.com/product/1017600744 (accessed May 
10, 2021); https://www.midwayusa.com/product/1023207522 (accessed 
May 10, 2021).
    \22\ https://www.aeroprecisionusa.com/ar15-atlas-r-one-m-lok-handguard (accessed Apr. 14, 2021); https://slrrifleworks.com/hand-guards/5-56-handguards/ion-series/ion-ultra-lite/ (accessed Apr. 14, 
2021); https://www.odinworks.com/O2_Lite_M_LOK_Forend_p/f-12-ml-o2.htm (accessed Apr. 14, 2021);. https://seekinsprecision.com/noxs-mlok-rail-1-1.html (accessed Apr. 14, 2021).
    \23\ $410 = $198 + $212.
---------------------------------------------------------------------------

Scenario 3: Apply To Register Under the NFA
    Individuals and FFLs could keep their firearms with attached 
``stabilizing brace'' and apply to register under the NFA. Under this 
scenario, individuals and Type 1 FFL dealers would need to complete a 
Form 1 for each and every firearm affected by this proposed rule. Type 
7 FFL manufacturers would complete a Form 2 for all their affected 
firearms in inventory. FFLs would then be able to sell these firearms 
with attached ``stabilizing braces'' as NFA weapons to individuals who 
wish to purchase them. The estimated cost for an individual to apply 
for two firearms with attached ``stabilizing braces'' would be 
$132.\24\ The cost per Type 1 FFL to fill out 3 Form 1s is $985.\25\ 
The cost per Type 7 FFL to fill out one Form 2 is $47.\26\ The total 
industry cost to this scenario is a one-time cost of $51.3 million. 
While individuals and Type 1 FFLs would need to pay a $200 makings tax 
per firearm under the NFA, because this cost is a transfer payment from 
industry to the Federal Government, the transfer payment of these taxes 
is described under section 7.2 of the standalone RIA. For more details, 
please refer to Chapter 5 of the standalone RIA. Because braces 
themselves are generally not regulated items, ATF requests comments 
regarding the population, methodology, and scope of this scenario.
---------------------------------------------------------------------------

    \24\ $132 = (($16.52 leisure hourly wage * 4 hours)) * 2 
applications.
    \25\ $985 = (($82.08 average loaded hourly wage * 4 hours)) * 3 
applications.
    \26\ $47 = $62.93 average loaded hourly wage * 0.75 hours.
---------------------------------------------------------------------------

Scenario 4: Permanently Remove or Alter Affected ``Stabilizing Braces'' 
Currently in Circulation and Foregone Future Sales
    Under this scenario, all parties affected could simply permanently 
remove or alter their ``stabilizing braces'' as they see fit. However, 
ATF has determined this would be a loss of property. There are various 
types of ``stabilizing braces'' that would be affected by this proposed 
rule. We assume that the lost value to owners of a ``stabilizing 
brace'' would be at least as much as the cost of a new ``stabilizing 
brace.'' The average cost for a ``stabilizing brace'' is $236.\27\ At 
1.9 million ``stabilizing braces'' affected under this scenario, ATF 
estimates that the cost for disposing of currently existing 
``stabilizing braces'' would be $443.9 million.\28\
---------------------------------------------------------------------------

    \27\ https://www.sb-tactical.com/product/sba3/(accessed Apr. 22, 
2021); https://www.sb-tactical.com/product/sbm47/(accessed Apr. 22, 
2021); https://www.sb-tactical.com/product/hkpdw/(accessed Apr. 22, 
2021); https://www.sb-tactical.com/product/tac13-sba3/(accessed Apr. 
22, 2021); https://www.sb-tactical.com/product/czpdw/(accessed Apr. 
22, 2021); https://www.sb-tactical.com/product/fs1913/(accessed Apr. 
22, 2021); https://www.pewpewtactical.com/best-ar-15-pistols/
(accessed Apr. 22, 2021).
    \28\ $443.9 million = ((905,523 individuals * 2 ``stabilizing 
braces'') + (10,642 Type 1 FFLs * 3 ``stabilizing braces'') + (1,263 
Type 7 FFLs * 32 ``stabilizing braces'')) * $236 cost of brace.
---------------------------------------------------------------------------

    While these ``stabilizing braces'' have been purchased over the 
course of eight years, ATF uses that information to estimate the future 
sales of these affected ``stabilizing braces'' forgone. However, in 
lieu of promulgating a proposed regulation, ATF has been and will 
continue to use enforcement actions, to include criminal actions, 
against existing FFLs that manufacture firearms that do not comply with 
the intent of the law. ATF estimates that in the absence of this 
proposed rule, these individual enforcement actions against existing 
FFLs would change the market perception of these ``stabilizing braces'' 
and may affect the overall demand for these items regardless of the 
implementation of the proposed rule. Therefore, ATF estimates that the 
overall future demand for ``stabilizing braces'' would decrease by the 
estimated amount attributed to Type 1 and Type 7 FFLs, making the 
primary estimate of future ``stabilizing braces'' 211,178 per year.\29\ 
Thus, ATF estimates that this scenario would mean a loss of $49.7 
million in sales per year.
---------------------------------------------------------------------------

    \29\ 211,178 future ``stabilizing braces'' = 375,000 annual 
``stabilizing braces''-(13,210 Type 1 FFL * 3 stabilizing braces)-
(3,881 Type 7 FFL * 32 stabilizing braces).
---------------------------------------------------------------------------

    For more details, please refer to Chapter 6 of the standalone RIA.

[[Page 30847]]

Because braces themselves are not regulated items, ATF requests 
comments regarding the population, methodology, and scope of this 
scenario.
Total Cost of the Proposed Rule
    This section summarizes the total costs of this proposed rule as 
described throughout this RIA. As noted in Chapter 5 of the standalone 
RIA, $151.0 million was not accounted for in Chapter 5 due to the NFA 
tax. Because it would be considered a transfer payment from the public 
to the Federal Government, it was not included in the societal cost of 
the rule. The annualized cost of this proposed rule would be $114.7 
million and $125.7 million, at 3 percent and 7 percent, respectively. 
At this time, the government cost of this proposed rule was not 
included in this cost assessment.
Benefits
    This proposed rule would affect attempts by manufacturers and 
individuals to circumvent the requirements of the NFA and would affect 
the criminal use of weapons with a purported ``stabilizing brace,'' 
such as the shooting incident at the King Soopers in Boulder, Colorado. 
The purpose of this proposed rule is to amend ATF regulations to 
clarify when a rifle is ``intended to be fired from the shoulder'' and 
to set forth factors that ATF considers when evaluating firearms with 
an attached purported ``stabilizing brace'' to determine whether these 
are ``rifles'' under the GCA or NFA, and therefore whether they are 
``firearms'' subject to the NFA. Congress placed stricter requirements 
on the making and possession of ``short-barreled rifles'' because it 
found them to pose a significant crime problem. Providing clarity to 
the public and industry on how ATF enforces the provisions of the NFA 
through this proposed rule significantly enhances public safety and 
could reduce the criminal use of such firearms, which are easily 
concealable from the public and first responders.
Alternatives
    This section outlines the various alternatives considered when 
creating this proposed rule. For a more detailed analysis, please refer 
to Chapters 1 and 10 of the RIA.
    Proposed Alternative--Factoring Criteria for Firearms with Attached 
Stabilizing Braces. This proposed alternative would amend the 
definitions of rifle in 27 CFR 478.11 and 27 CFR 479.11 to indicate 
that a rifle includes any weapon with a rifled barrel equipped with an 
accessory or component purported to assist the shooter to stabilize the 
weapon while shooting with one hand, commonly referred to as a 
``stabilizing brace,'' that has objective design features and 
characteristics that facilitate shoulder fire as described in ATF 
Worksheet 4999.
    Alternative 1--No change alternative. This alternative has no costs 
or benefits because it is maintaining the existing status quo. This 
alternative was considered and not implemented because the NFA requires 
regulation of certain types of firearms above what is required under 
the GCA.
    Alternative 2--Simple Criteria. This alternative would provide very 
short and simple parameters in terms of how a ``stabilizing brace'' or 
stock would be defined, such as length only. This alternative would be 
easy for the public to read and understand. Where this was feasible, 
ATF has incorporated these simple and easy to follow parameters.
    Alternative 3--Grandfather all existing firearms with an attached 
``stabilizing brace.'' In order to enforce the regulation, a complete 
grandfathering of existing firearms with an attached ``stabilizing 
brace'' is problematic in that manufacturers could continue to produce 
these items that are actually ``rifles'' under the statutory definition 
and subject to the NFA and market them as grandfathered firearms with 
an attached ``stabilizing brace'' not subject to the same regulation. 
This could potentially pose an enforcement issue that may not be 
resolved for years if not decades.
    Alternative 4--Guidance documents. This alternative would publish a 
guidance document instead of a rulemaking. While this alternative 
minimizes cost because compliance in this scenario would be voluntary, 
it does not meet the objectives outlined in this proposed rule as 
guidance documents do not have the same force and effect as a 
regulation. Guidance documents do not in and of themselves impose 
binding legal obligations. This would pose an enforcement issue. 
Moreover, issuing a proposed rule invites comments from the public, 
creating greater transparency and notice.
    Alternative 5--Forgiveness of the NFA Tax. This alternative would 
allow individuals and entities that currently have firearms with 
attached ``stabilizing braces'' to apply and register firearms under 
the NFA without paying the $200 making tax. In this scenario, the 
societal costs would be the same except there would be no transfer 
payment. Similar to the proposed rule, the bulk of this cost would be 
the foregone future revenue and the loss in property for individuals 
not applying under the NFA.\30\ This scenario was rejected because 
``stabilizing braces'' are not serialized and an individual or entity 
could merely register all firearms possessed with the intent of later 
obtaining a ``stabilizing brace.'' Further, although the ``brace'' is 
used on a particular weapon, an individual might register all pistols 
as SBRs and then attempt to utilize other stocks on these firearms.
---------------------------------------------------------------------------

    \30\ However, the real cost to the individual or FFL would be 
minimal since filling out the form would not necessarily incur an 
out-of-pocket cost and the tax would not be incurred either.
---------------------------------------------------------------------------

B. Executive Order 13132

    This proposed rule will not have substantial direct effects on the 
States, the relationship between the Federal Government and the States, 
or the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132 (Federalism), the Attorney General has determined 
that this proposed rule does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

C. Executive Order 12988

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice 
Reform).

D. Regulatory Flexibility Act (RFA)

    In accordance with the Regulatory Flexibility Act (``RFA''), ATF 
prepared an Initial Regulatory Flexibility Analysis (``IRFA'') that 
examines the impacts of the proposed rule on small entities (5 U.S.C. 
601 et seq.). The term ``small entities'' comprises small businesses, 
not-for-profit organizations that are independently owned and operated 
and are not dominant in their fields, and governmental jurisdictions 
with populations of fewer than 50,000 people.
Summary of Findings
    ATF performed an IRFA of the impacts on small businesses and other 
entities from the Factoring Criteria for Firearms with Attached 
``Stabilizing Braces'' proposed rule [2021R-08] . We performed this 
assessment using the cost information discussed in chapters 2 through 7 
of the RIA.
    Based on the information from this analysis, we found:
     ATF estimates that this proposed rule would potentially 
affect at least 8 manufactures of ``stabilizing braces.'' Based on SME 
commentary, it is

[[Page 30848]]

anticipated 3 of them would go out of business;
     ATF also anticipates that this proposed rule would affect 
17,091 FFLs, many of whom would be considered small businesses;
     However, the highest anticipated cost to would be if a 
Type 1 FFL had 24 ``stabilizing braces'' (the high estimate that a Type 
1 FFL may have) and opted to file under the NFA. Should they own 24 arm 
braces and opt to apply under the NFA, ATF anticipates these FFLs would 
need to make $111,855 in revenue or less in order to incur an impact of 
10 percent or more.
     There are no relevant government entities.
Preliminary Initial Regulatory Flexibility Analysis
    The RFA establishes that agencies must try to fit regulatory and 
informational requirements to the scale of the businesses, 
organizations, and governmental jurisdictions subject to regulation. To 
achieve this goal, agencies must solicit and consider flexible 
regulatory proposals and explain the rationale for their actions to 
assure that such proposals are given serious consideration.\31\
---------------------------------------------------------------------------

    \31\ Regulatory Flexibility Act, Public Law 96-354, sec. 2(b), 
94 Stat. 1164 (1980).
---------------------------------------------------------------------------

    Under the RFA, we are required to consider what, if any, impact 
this rule would have on small entities. Agencies must perform a review 
to determine whether a rule will have such an impact. Because the 
agency has determined that it will have a significant impact on a 
substantial number of small entities, the agency has prepared an 
initial regulatory flexibility analysis as described in the RFA.
    Under section 603(b) of the RFA, the regulatory flexibility 
analysis must provide or address:
     A description of the reasons why action by the agency is 
being considered;
     A succinct statement of the objectives of, and legal basis 
for, the proposed rule;
     A description of and, where feasible, an estimate of the 
number of small entities to which the proposed rule will apply;
     A description of the projected reporting, recordkeeping, 
and other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities which will be subject to the 
requirement and the type of professional skills necessary for 
preparation of the report or record;
     An identification, to the extent practicable, of all 
relevant Federal rules that may duplicate, overlap, or conflict with 
the proposed rule; and
     Descriptions of any significant alternatives to the 
proposed rule that accomplish the stated objectives of applicable 
statutes and that minimize any significant economic impact of the 
proposed rule on small entities.
A Description of the Reasons Why Action by the Agency Is Being 
Considered
    One of the reasons ATF is considering this proposed rule is the 
failure of the market to compensate for negative externalities caused 
by commercial activity. A negative externality can be the by-product of 
a transaction between two parties that is not accounted for in the 
transaction. A negative externality addressed by this proposed rule is 
that individuals and manufacturers may try to use purported 
``stabilizing braces'' and affix them to firearms to circumvent the 
requirements of the NFA, which requires registration and taxes to be 
paid on the making and transfer of NFA weapons. If persons can 
circumvent the NFA by effectively making unregistered ``short-barreled 
rifles'' by using an accessory such as a ``stabilizing brace,'' these 
weapons can continue to proliferate and could pose an increased public 
safety problem given that they are easily concealable.
A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    The Attorney General is responsible for enforcing the GCA, as 
amended, and the NFA, as amended. This responsibility includes the 
authority to promulgate regulations necessary to enforce the provisions 
of the GCA and NFA. See 18 U.S.C. 926(a); 26 U.S.C. 7801(a)(2)(A), 
7805(a). The Attorney General has delegated the responsibility for 
administering and enforcing the GCA and NFA to the Director of ATF, 
subject to the direction of the Attorney General and the Deputy 
Attorney General. See 28 U.S.C. 599A(b)(1); 28 CFR 0.130(a)(1)-(2). 
Accordingly, the Department and ATF have promulgated regulations 
implementing both the GCA and the NFA. See 27 CFR parts 478, 479.
    This proposed rule would prevent persons from circumventing the NFA 
by using arm braces as stocks on ``short-barreled rifles''. If persons 
can circumvent the NFA by effectively making unregistered ``short-
barreled rifles'' by using an accessory such as a ``stabilizing 
brace,'' these weapons can continue to proliferate and could pose an 
increased public safety problem given that they are easily concealable.
A Description of and, Where Feasible, an Estimate of the Number of 
Small Entities To Which the Proposed Rule Will Apply
    This rule would affect primarily three manufacturers of certain 
``stabilizing braces'' that have been primarily used as an alternative 
to a stock on a firearm. It is anticipated they would lose their 
business of manufacturing ``stabilizing braces.''
    This proposed rule would also affect FFLs that sell these affected 
arm braces, and other small retailers of firearm accessories that have 
invested in the arm brace industry. ATF anticipates that this proposed 
rule would affect 17,091 FFLs, many of whom would be considered small 
businesses.
    Based on data gleaned from persons who turned in bump stocks, an 
FFL could have as many as 24 ``stabilizing braces'' affected by this 
proposed rule. The majority are likely to own only one. The cost for an 
FFL could range from $236 to dispose of one ``stabilizing brace'' to 
$11,185 to submit 24 applications under the NFA. ATF anticipates the 
majority of FFLs to experience a one-time cost of $236 for the disposal 
of one ``stabilizing brace.'' However, the highest anticipated cost 
would occur if an FFL had 24 ``stabilizing braces'' and opted to file 
under the NFA. Should they own 24 arm braces and opt to apply under the 
NFA, ATF anticipates that these FFLs would need to make $111,855 in 
revenue or less in order to incur an impact of 10 percent or more.
    Assuming that the average Type 1 FFL has an average of 3 
``stabilizing braces'' in inventory and opts to dispose of them, the 
FFL would lose $707 per entity. This would mean that the FFL would need 
to make $7,071 or less to incur a significant impact.
An Identification, to the Extent Practicable, of all Relevant Federal 
Rules Which May Duplicate, Overlap or Conflict With the Proposed Rule
    This proposed rule does not duplicate or conflict with other 
Federal rules.
Descriptions of Any Significant Alternatives to the Proposed Rule That 
Accomplish the Stated Objectives of Applicable Statutes and That 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities
    Please see Chapter 9 of the RIA on the discussion of alternatives. 
ATF did not create any alternatives specific to small businesses but 
notes that the majority of the affected businesses would be considered 
small.

[[Page 30849]]

E. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is likely to be considered major as it is economically 
significant and is projected to have an effect of over $100 million on 
the economy in at least the first year of the rule. See 5 U.S.C. 804.

F. Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, of $100 million or 
more in any one year, and it will not significantly or uniquely affect 
small governments. Therefore, no actions were deemed necessary under 
the provisions of the Unfunded Mandates Reform Act of 1995 (``UMRA''), 
Public Law 104-4, 109 Stat. 48, based on the proposed rule's impact on 
State, local, or Tribal governments. However, based on the analysis 
presented in the RIA, the Department concludes that the proposed rule 
would impose a Federal mandate on the private sector in excess of $100 
million in expenditures in any one year. The RIA constitutes the 
written statement containing a qualitative and quantitative assessment 
of the anticipated costs, benefits, and alternatives required under 
section 202(a) of the UMRA (2 U.S.C. 1532).

G. Paperwork Reduction Act of 1995

    This proposed rule would call for collections of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-20). As defined in 
5 CFR 1320.3(c), ``collection of information'' comprises reporting, 
recordkeeping, monitoring, posting, labeling, and other similar 
actions. The title and description of the information collection, a 
description of those who must collect the information, and an estimate 
of the total annual burden follow. The estimate covers the time for 
reviewing instructions, searching existing sources of data, gathering 
and maintaining the data needed, and completing and reviewing the 
collection.
    Under the provisions of this proposed rule, there would be a one-
time increase in paperwork burdens of NFA applications. This 
requirement would be added to an existing approved collection covered 
by OMB control number 1140-0011 and 1140-0012.

    Title: Application to Make and Register a Firearm.
    OMB Control Number: OMB 1140-0011.
    Proposed Use of Information: The ATF Form 1 (5320.1) is required to 
register an NFA firearm by any person, other than a qualified 
manufacturer, who wishes to make and register an NFA firearm. The 
implementing regulations are in 27 CFR 479.61-479.71. Under the 
provisions of 26 U.S.C. 5822, no person can make an NFA firearm until 
he or she has applied for and received approval from the Attorney 
General (delegated to ATF). Subject to certain exceptions, the making 
of an NFA firearm is subject to a tax of $200 (26 U.S.C. 5821). The 
proposed use of this information is to ensure that applicants are in 
compliance with relevant laws.
    Description and Number of Respondents: Currently, there is a total 
of 25,716 respondents to this information collection. Of these 25,716 
respondents, 477 of them are FFLs, 21,879 of them are trusts and legal 
entities, and 3,360 of them are individuals. For the purposes of this 
proposed rule, ATF estimates 1,679 FFLs and 375,000 individuals would 
submit a response due to this proposed rule. For the purposes of this 
proposed rule, the number of trusts and legal entities were not 
calculated.
    Frequency of Response: One time.
    Burden of Response: Currently, one time. For this proposed rule, 2 
to 3 times, depending on the number of firearms.
    Estimate of Total Annual Burden: The existing hourly burden is 
102,808 hours, with an additional 3,020,148 hours due to this proposed 
rule.

    Title: Notice of Firearms Manufactured or Imported.
    OMB Control Number: OMB 1140-0012.
    Proposed Use of Information: The Notice of Firearms Manufactured or 
Imported, ATF Form 2 (5320.2), is required of (1) a person who is 
qualified to manufacture NFA firearms, or (2) a person who is qualified 
to import NFA firearms to register manufactured or imported NFA 
firearm(s). In general, under the provisions of 26 U.S.C. 5822, no 
person can make an NFA firearm until he or she has applied for and 
received approval from the Attorney General of the United States 
(delegated to ATF). Subject to certain exceptions, the making of an NFA 
firearm is subject to a tax of $200. Section 5841(b) provides that each 
manufacturer and importer shall register each firearm manufactured or 
imported. Section 5841(c) provides that each manufacturer shall notify 
the Attorney General about the manufacture of a firearm, as provided by 
the regulations. These regulations further stipulate that each importer 
must obtain authorization as required by regulations, prior to 
importing a firearm. Section 5852(c) exempts a qualified manufacturer 
from payment of the making tax for manufactured firearms. The proposed 
use of this information is to ensure that applicants are in compliance 
with relevant laws.
    Description and Number of Respondents: Currently, there are 14,384 
FFLs with SOT.
    Frequency of Response: One time.
    Burden of Response: Currently, respondents will respond one time. 
This proposed rule may require a second response to incorporate a 
change in inventory.
    Estimate of Total Annual Burden: Currently, the burden hours is 
7,192. This rule would add an additional burden of 1,323 hours.
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), we have submitted a copy of this proposed rule to the OMB for 
its review of the collections of information.
    We ask for public comment on the proposed collection of information 
to help us determine how useful the information is; whether it can help 
us perform our functions better; whether it is readily available 
elsewhere; how accurate our estimate of the burden of collection is; 
how valid our methods for determining burden are; how we can improve 
the quality, usefulness, and clarity of the information; and how we can 
minimize the burden of collection.
    You need not respond to a collection of information unless it 
displays a currently valid control number from OMB. Before the 
requirements for this collection of information become effective, we 
will publish a notice in the Federal Register of OMB's decision to 
approve, modify, or disapprove the proposed collection.

VII. Public Participation

A. Comments Sought

    ATF requests comments on the proposed rule from all interested 
persons. ATF specifically requests comments on the clarity of this 
proposed rule and how it may be made easier to understand. ATF also 
requests comments on the costs or benefits of the proposed rule and on 
the appropriate methodology and data for calculating those costs and 
benefits. Additionally, ATF requests comments on providing a tax 
forgiveness for the registration of ``short-barreled rifles'' pursuant 
to this proposed rule.
    ATF recognizes that individuals may have submitted comments 
previously in response to a notice ATF published on December 18, 2020, 
titled ``Objective

[[Page 30850]]

Factors for Classifying Weapons with `Stabilizing Braces.' '' 85 FR 
82516. However, the notice was withdrawn on December 31, 2020, prior to 
the comment period ending. 85 FR 86948. Moreover, this proposed rule 
incorporates different provisions than the December 2020 notice did, 
including a series of objective factors that are weighted in order to 
reflect objective decisions based on the design elements of each 
``stabilizing brace.'' Comments received pursuant to that notice have 
not been, and will not be, considered as part of this proposed rule. 
Commenters will need to submit new comments in connection with this 
proposed rule.
    All comments should reference this document's docket number ATF 
2021R-08, be legible, and include the commenter's complete first and 
last name and full mailing address. ATF may not consider, or respond 
to, comments that do not meet these requirements or comments containing 
excessive profanity. ATF will retain all comments as part of this 
rulemaking's administrative record. ATF will treat all comments as 
originals and will not acknowledge receipt of comments. In addition, if 
ATF cannot read your comment due to technical difficulties and cannot 
contact you for clarification, ATF may not be able to consider your 
comment.
    ATF will carefully consider all comments, as appropriate, received 
on or before the closing date, and will give comments after that date 
the same consideration if practical to do so, but assurance of 
consideration cannot be given except as to comments received on or 
before the closing date.
    In addition to the broader requests for comment outlined above, ATF 
is interested in specific comments from the public that may help 
address the following questions:
    1. How do current owners of stabilizing braces anticipate that they 
will choose to comply with this rulemaking if it is finalized? Are 
owners more likely to permanently remove or alter their braces, turn in 
their firearms with a brace to ATF, or register them with ATF as NFA 
firearms and pay the associated tax? Would owners be more likely to 
register their firearms instead of choosing one of the other options if 
the tax on the registration is forgiven?
    2. How do manufacturers anticipate they will comply with this 
rulemaking, if finalized? Will manufacturers stop making stabilizing 
braces, alter their stabilizing braces in some manner so they don't 
meet the criteria in this rulemaking, or market their braces 
differently?
    3. Has ATF selected the most appropriate criteria for determining 
whether a stabilizing brace has made a firearm subject to the NFA? Do 
commenters have additional criteria that should be considered?

B. Confidentiality

    ATF will make all comments meeting the requirements of this 
section, whether submitted electronically or on paper, available for 
public viewing at ATF and on the internet through the Federal 
eRulemaking Portal, and subject to the Freedom of Information Act (5 
U.S.C. 552). Commenters who do not want their name or other personal 
identifying information posted on the internet should submit comments 
by mail or facsimile, along with a separate cover sheet containing 
their personal identifying information. Both the cover sheet and 
comment should reference this docket number (2021R-08). For comments 
submitted by mail or facsimile, information contained on the cover 
sheet will not appear when posted on the internet but any personal 
identifying information that appears within a comment will not be 
redacted by ATF and will appear on the internet.
    A commenter may submit to ATF information identified as proprietary 
or confidential business information. The commenter shall place any 
portion of a comment that is proprietary or confidential business 
information under law on pages separate from the balance of the comment 
with each page prominently marked ``PROPRIETARY OR CONFIDENTIAL 
BUSINESS INFORMATION'' at the top of the page.
    ATF will not make proprietary or confidential business information 
submitted in compliance with these instructions available when 
disclosing the comments that it received but will disclose that the 
commenter provided proprietary or confidential business information 
that ATF is holding in a separate file to which the public does not 
have access. If ATF receives a request to examine or copy this 
information, it will treat it as any other request under the Freedom of 
Information Act (5 U.S.C. 552). In addition, ATF will disclose such 
proprietary or confidential business information to the extent required 
by other legal process.

C. Submitting Comments

    Submit comments in any of three ways (but do not submit the same 
comment multiple times or by more than one method). Hand-delivered 
comments will not be accepted. Comments not satisfying these 
requirements may not be considered by ATF.
     Federal eRulemaking Portal: ATF recommends that you submit 
your comments to ATF via the Federal eRulemaking portal at 
www.regulations.gov and follow the instructions. Comments will be 
posted within a few days of being submitted. However, if large volumes 
of comments are being processed simultaneously, your comment may not be 
viewable for up to several weeks. Please keep the comment tracking 
number that is provided after you have successfully uploaded your 
comment.
     Mail: Send written comments to the address listed in the 
ADDRESSES section of this document. Written comments should appear in 
minimum 12-point font size (.17 inches), include the commenter's first 
and last name and full mailing address, be signed, and may be of any 
length. Mailed comments will be treated as timely if they are 
postmarked on or before the last day of the comment period.
     Facsimile: Submit comments by facsimile transmission to 
(202) 648-9741. Faxed comments must:
    1. Be legible and appear in minimum 12-point font size (.17 
inches);
    2. Be on 8\1/2\'' x 11'' paper;
    3. Be signed and contain the commenter's complete first and last 
name and full mailing address; and
    4. Be no more than five pages long.

D. Request for Hearing

    Any interested person who desires an opportunity to comment orally 
at a public hearing should submit his or her request, in writing, to 
the Director of ATF within the 90-day comment period. The Director, 
however, reserves the right to determine, in light of all 
circumstances, whether a public hearing is necessary.
Disclosure
    Copies of this proposed rule and the comments received in response 
to it will be available through the Federal eRulemaking portal, at 
www.regulations.gov (search for RIN 1140-AA55), and for public 
inspection by appointment during normal business hours at: ATF Reading 
Room, Room 1E-063, 99 New York Ave. NE, Washington, DC 20226; 
telephone: (202) 648-8740.

List of Subjects

27 CFR Part 478

    Administrative practice and procedure, Arms and munitions, Exports, 
Freight, Imports, Intergovernmental relations, Law enforcement 
officers, Military

[[Page 30851]]

personnel, Penalties, Reporting and recordkeeping requirements, 
Research, Seizures and forfeitures, Transportation.

27 CFR Part 479

    Administrative practice and procedure, Arms and munitions, Excise 
taxes, Exports, Imports, Military personnel, Penalties, Reporting and 
recordkeeping requirements, Seizures and forfeitures, Transportation.

Authority and Issuance

    For the reasons discussed in the preamble, 27 CFR parts 478 and 479 
are proposed to be amended as follows:

PART 478--COMMERCE IN FIREARMS AND AMMUNITION

0
1. The authority citation for 27 CFR part 478 continues to read as 
follows:

    Authority: 5 U.S.C. 552(a); 18 U.S.C. 921-931; 44 U.S.C. 
3504(h).

0
2. In Sec.  478.11, add a sentence to the end of the definition of 
``rifle,'' to read as follows:


Sec.  478.11  Meaning of terms.

* * * * *
    Rifle. * * * The term shall include any weapon with a rifled barrel 
equipped with an accessory or component purported to assist the shooter 
stabilize the weapon while shooting with one hand, commonly referred to 
as a ``stabilizing brace,'' that has objective design features and 
characteristics that facilitate shoulder fire, as indicated on 
Factoring Criteria for Rifled Barrel Weapons with Accessories commonly 
referred to as ``Stabilizing Braces,'' ATF Worksheet 4999, published on 
[EFFECTIVE DATE OF THE FINAL RULE].
* * * * *

PART 479--MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN OTHER 
FIREARMS

0
3. The authority citation for 27 CFR part 479 continues to read as 
follows:

    Authority: 26 U.S.C. 5812; 26 U.S.C. 5822; 26 U.S.C. 7801; 26 
U.S.C. 7805.

0
4. In Sec.  479.11, add a sentence to the end of the definition of 
``rifle'', to read as follows:


Sec.  479.11  Meaning of terms.

* * * * *
    Rifle. * * * The term shall include any weapon with a rifled barrel 
equipped with an accessory or component purported to assist the shooter 
stabilize the weapon while shooting with one hand, commonly referred to 
as a ``stabilizing brace,'' that has objective design features and 
characteristics that facilitate shoulder fire, as indicated on 
Factoring Criteria for Rifled Barrel Weapons with Accessories commonly 
referred to as ``Stabilizing Braces,'' ATF Worksheet 4999, published on 
[EFFECTIVE DATE OF THE FINAL RULE].
* * * * *

    Dated: June 7, 2021.
Merrick B. Garland,
Attorney General.
[FR Doc. 2021-12176 Filed 6-9-21; 8:45 am]
BILLING CODE 4410-FY-P