BREAKING: Federal Register Publishes Schedule For ATF’s Firearm, Silencer, and Pistol Brace Final Regulations

Set to publish tomorrow, but for some reason already public on govinfo (or download the PDF HERE), the January 31, 2022 Federal Register details ATF’s plans to finalize its rulemaking and regulations related to the definitions of firearm, firearm frame/receiver, complete weapon, complete silencer, and more, plus will publish its final factors for determining whether a specific pistol equipped with a pistol stabilizing brace is, in fact, a pistol or if it’s a short barreled rifle.

From the summary in the Federal Register:

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) ATF issues regulations to enforce the Federal laws relating to the manufacture, importation, sale, and other commerce in firearms and explosives. ATF’s mission and regulations are designed to, among other objectives: (1) Curb illegal traffic in, and criminal use of, firearms and explosives; and (2) assist State, local, and other Federal law enforcement agencies in reducing violent crime. ATF will continue, as a priority during fiscal year 2021, to seek modifications to its regulations governing commerce in firearms and explosives in furtherance of these important goals. ATF plans to finalize regulations regarding definitions of firearm, firearm frame or receiver, gunsmith, complete weapon, complete muffler or silencer device, privately made firearm, and readily, and finalize regulations on marking and recordkeeping that are necessary to implement these new or amended definitions (RIN 1140–AA54). The intent of this rulemaking is to consider technological developments and modern terminology in the firearms industry, and to enhance public safety by helping to stem the proliferation of unmarked, privately made firearms that have increasingly been recovered at crime scenes. Further, ATF plans to finalize regulations to implement certain provisions of Public Law 105– 277, Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (RIN 1140– AA10), and to set forth factors considered when evaluating firearms with an attached stabilizing brace to determine whether they are considered firearms under the National Firearms Act and/or the Gun Control Act (RIN 1140–AA55). This second rule would make clear that all weapons that fall under the National Firearms Act, however they are made, are subject to its heightened regulations—including registration and background check requirements. ATF also has begun a rulemaking process that amends 27 CFR part 447 to update the terminology in ATF’s import control regulations based on similar terminology amendments made by the Department of State on the U.S. Munitions List in the International Traffic in Arms Regulations, and the Department of Commerce on the Commerce Control List in the Export Administration Regulations (RIN 1140– AA49).

Here is the section on firearms, receivers, and silencers:

DOJ—BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES (ATF)
Final Rule
Stage 104. Definition of ‘‘Frame or Receiver’’ and Identification of Firearms
Priority: Other Significant.
Legal Authority: 18 U.S.C. 921 to 931; 22 U.S.C. 2778; 26 U.S.C. 5812; 26 U.S.C. 5822; 26 U.S.C. 7801 and 7805 CFR Citation: 27 CFR 447; 27 CFR 478; 27 CFR 479.
Legal Deadline: None.
Abstract: The Department of Justice proposes amending Bureau of Alcohol, Tobacco, Firearms, and Explosives regulations to provide new regulatory definitions of firearm frame or receiver and frame or receiver because they are outdated. The Department also proposes amending ATF’s definitions of firearm and gunsmith to clarify the meaning of those terms, and to add new regulatory terms such as complete weapon, complete muffler or silencer device, privately made firearm, and readily for purposes of clarity given advancements in firearms technology. Further, the Department proposes amendments to ATF’s regulations on marking and recordkeeping that are necessary to implement these new or amended definitions.
Statement of Need: This rule is intended to clarify the definition of firearm and to provide a more comprehensive definition of frame or receiver so that those definitions more accurately reflect firearm configurations not explicitly captured under the existing definitions in 27 CFR 478.11 and 479.11. Further, this NPRM proposes new terms and definitions to take into account technological developments and modern terminology in the firearms industry, as well as amendments to the marking and recordkeeping requirements that would be necessary to implement these definitions.
Summary of Legal Basis: The Attorney General has express authority pursuant to 18 U.S.C. 926 to prescribe rules and regulations necessary to carry out the provisions of chapter 44, title 18, United States Code. The detailed legal analysis supporting the amendments in this rule are expressed in the abstract for the rule itself.
Alternatives: There are no feasible alternatives to the proposed rule that would allow ATF to maximize benefits.
Anticipated Cost and Benefits: The rule will not be economically significant; however, it is a significant regulatory action under section 3(f)(4) of Executive Order 12866 because this rule raises novel legal or policy issues arising out of legal mandates. ATF estimates that the costs for this proposed rule is minimal. The total 10- year undiscounted cost of this proposed rule is estimated to be $1.3 million. The total 10-year discounted cost of the rule is $1.0 million and $1.2 million at 7 percent and 3 percent respectively. The annualized cost of this proposed rule would be $147,048 and $135,750, also at 7 percent and 3 percent, respectively. This rule provides for updated definitions to account for technological advances, ensures traceability regardless of age of firearm, and makes consistent marking requirements
Risks: Without this rule, public safety will continue to be threatened by the lack of traceability of firearms.
Timetable: 
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: None.
Agency Contact: Vivian Chu, Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Avenue NE, Washington, DC 20226, Phone: 202 648– 7070. RIN: 1140–AA54

Here is the section on firearms with a stabilizing brace attached:

DOJ—ATF
105. Factoring Criteria for Firearms With an Attached Stabilizing Brace
Priority: Other Significant.
Legal Authority: 18 U.S.C 921 to 931; 26 U.S.C 5812; 26 U.S.C 5822; 26 U.S.C. 7801; 26 U.S.C. 7805 CFR Citation: 27 CFR 478; 27 CFR 479.
Legal Deadline: None.
Abstract: The Department of Justice is planning to propose to amend the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives to set forth factors considered when evaluating firearms with an attached stabilizing brace to determine whether they are considered firearms under the National Firearms Act and/or the Gun Control Act.
Statement of Need: This rule is intended 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. It amends 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 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.
Summary of Legal Basis: The Attorney General has express authority pursuant to 18 U.S.C. 926 to prescribe rules and regulations necessary to carry out the provisions of chapter 44, title 18, United States Code. The detailed legal analysis supporting the amendments in this rule are expressed in the abstract for the rule itself.
Alternatives: There are no feasible alternatives to the proposed rule that would allow ATF to maximize benefits.
Anticipated Cost and Benefits: The 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. The annualized cost of this proposed rule would be $114.7 million and $125.7 million, at 3 percent and 7 percent, respectively. This proposed rule would affect attempts by manufacturers and individuals to circumvent the requirements of the NFA and would affect the criminal use of VerDate Sep<11>2014 17:50 Jan 28, 2022 Jkt 256001 PO 00000 Frm 00111 Fmt 4701 Sfmt 4702 E:\FR\FM\31JAP2.SGM 31JAP2 khammond on DSKJM1Z7X2PROD with PROPOSALS2 5112 Federal Register / Vol. 87, No. 20 / Monday, January 31, 2022 / Regulatory Plan weapons with a purported stabilizing brace.
Risks: Without this rule, public safety will continue to be threatened by the criminal use of such firearms, which are easily concealable from the public and first responders.
Timetable: 
Regulatory Flexibility Analysis Required: No.
Small Entities Affected: Businesses.
Government Levels Affected: None.
International Impacts: This regulatory action will be likely to have international trade and investment effects, or otherwise be of international interest.
Agency Contact: Denise Brown, Regulations Writer, Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Avenue NE, Washington, DC 20226, Phone: 202 648–7070. RIN: 1140–AA55

So sometime in June, ATF’s new definitions and regulations will go into effect for the receivers, silencers, and other categories, and sometime in August the rules will go into effect for pistol stabilizing brace-equipped firearms.

On that note I’d like to make something clear, because there is a lot of confusion out there: these new rules will not make pistol braces illegal. It will not ban them. In fact, it doesn’t apply to the braces, themselves, at all.

As ATF cannot directly regulate this accessory, because for them its legality exists in how it is or isn’t used. As a stand-alone item, it’s completely legal to make, sell, and buy, then. These new regulations apply to the configuration of the complete firearm on which a brace is used. ATF can’t rule on the brace, but they can rule on a complete firearm.

What will be restricted here is how you can accessorize a pistol that’s equipped with a brace. That whole ridiculous point system related to optics, bipods, weight, length, caliber, and other factors. ATF will look at the gun as a complete, as-configured unit and through these guidelines and through that points system, will determine if it’s a pistol or if the manufacturer or end user configured it in such a way that it’s allegedly intended to be a rifle (and, therefore, a short barreled rifle or SBR and subject to the regulations of the National Firearm Act or NFA).

For this same reason, the ATF stopped providing technical rulings on braces and similar accessories. A complete firearm must be submitted to the Technical Branch if a user or manufacturer wants ATF’s opinion on whether or not it’s a pistol or a rifle. And, because it’s the specific configuration that matters, if a manufacturer were to design a new pistol stabilizing brace and submit that brace to ATF on firearm X with optic Y and accessory D, ATF’s technical ruling would apply solely and specifically to firearm X with optic Y and accessory D and literally no other firearm in the world nor that same firearm with any change in its configuration whatsoever.

Effectively, it’s the points-based worksheet or the highway.

If you’re curious about each of those configuration categories, I detailed (and refuted) them extensively on TTAG HERE. We discussed and shared the points based worksheet HERE. And we joked about it HERE.

Of course, alternatives are already hitting the market. For instance, at SHOT Show this year Black Collar Arms announced its APS, or Adjustable Pistol Support. They say:

Not a shoulder stock, not a pistol brace, the brand new Black Collar Arms APS — Adjustable Pistol Support — is a height adjustable rest designed to support a precision pistol on a bench, ground, or other surface. It’s a brand new category of rear accessory for firearms and is ideally suited to large, accurate pistols.

The APS is not a pistol brace, as it isn’t designed to contact or brace on the user’s body at all. ATF’s brace-related restrictions are all specific to using the brace for its stated purpose: to support a pistol held one-handed and at arm’s length, which is why weight, caliber, eye relief of the optic, etc. are targeted.

The Black Collar Arms APS, however, is designed to provide a height-adjustable rear support for a large format pistol when used rested on a shooting bench, the ground, or any other stable surface. Benchrest pistol shooting and competition has been a highly popular recreational firearm sport many decades, and pistol hunting has become increasingly popular with more large format, accurate, capable pistols hitting the market and some states adopting lengthened or additional hunting seasons for handgun hunting. Now there’s a solid, lightweight rear support for these large pistols that easily travels with the pistol (no more sandbags or giant benchrest sled structures) and provides easy point-of-aim elevation adjustment without getting caught up in these pistol brace shenanigans.