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Factoring Criteria for Firearms With Attached "Stabilizing Braces" rule (2023)

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The Factoring Criteria for Firearms With Attached "Stabilizing Braces" rule is a significant rule issued by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) effective January 31, 2023, that amended department regulations to clarify when a rifle is intended to be fired from the shoulder, pursuant to the National Firearms Act of 1934 and the Gun Control Act of 1968. The amendment changed the definition of a rifle to include weapons equipped with a stabilizing brace or other attachment to allow the weapon to be fired from the shoulder.[1]

HIGHLIGHTS
  • Name: Factoring Criteria for Firearms With Attached "Stabilizing Braces"
  • Code of Federal Regulations: 27 CFR Parts 478 and 479
  • Agency: Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice
  • Action: Final rule
  • Type of significant rule: Economically significant rule

    • Timeline

    The following timeline details key rulemaking activity:

    • June 22, 2023: H.J.Res.44 failed in the U.S. Senate with a vote of 49-50. Click here to read more about the Congressional Review Act.[2]
    • June 13, 2023: H.J.Res.44 passed the U.S. House of Representatives with a vote of 219-210.[2]
    • March 17, 2023: Representative Andrew Clyde (R) introduced a Congressional Review Act resolution in the U.S. House of Representatives.[2]
    • March 15, 2023: Senator John Kennedy (R) introduced a Congressional Review Act resolution in the U.S. Senate.[3]
    • January 31, 2023: ATF published the final rule, effective immediately.[1]
    • September 8, 2021: ATF closed the comment period.[4]
    • June 10, 2021: ATF published the proposed rule and opened the comment period.[4]

    Background

    The National Firearms Act of 1934 (NFA) was signed into law by President Franklin D. Roosevelt (D) to impose taxes and registration requirements on certain firearms. The Gun Control Act of 1968 (GCA) was signed into law by President Lyndon B. Johnson (D) in an effort to enact "stricter licensing and regulation on the firearms industry," according to the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives. The GCA and the NFA had different definitions for the term firearms, with the NFA maintaining a more narrow definition that included specific types of weapons. The varying definitions of the term firearm under the GCA and the NFA impacted firearms regulations.[5][4]

    The director of ATF delegated authority to the Firearms Technology Criminal Branch (FTCB) and the Firearms Technology Industry Services Branch (FTISB) within the Firearms and Ammunition Technology Division (FATD) of ATF to classify firearms pursuant to the NFA and the GCA. The FATD and ATF believed that there was confusion surrounding classification determinations for firearms equipped with stabilizing braces and the different requirements under the NFA and the GCA. In response, ATF proposed a rule in an effort to amend the definition of the word rifle to include weapons equipped with stabilizing braces that are intended to be fired from the shoulder.[4][1]

    Republican legislators responded to the rule by issuing a Congressional Review Act (CRA) resolution. Senator John Kennedy (R-La.) issued a statement regarding the CRA arguing that the ATF rule would negatively impact disabled gun owners. Kennedy claimed that "countless law-abiding gun owners in Louisiana and other states will become criminals in the blink of an eye," if the rule remained in effect. The CRA passed the House of Representatives but failed in the Senate on June 22, 2023, with a vote of 49-50[6][2]

    Summary of the rule

    The following is a summary of the rule from the rule's entry in the Federal Register:

    "The Department of Justice (“Department” or “DOJ”) is amending the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) to clarify when a rifle is designed, made, and intended to be fired from the shoulder. Specifically, under the Gun Control Act of 1968 (“GCA”) and the National Firearms Act of 1934 (“NFA”) the definition of “rifle” shall include a weapon that is equipped with an accessory, component, or other rearward attachment (e.g., a “stabilizing brace”) that provides surface area that allows the weapon to be fired from the shoulder, provided other factors, as described in this preamble and in the amended regulations, indicate that the weapon is designed, made, and intended to be fired from the shoulder."[1]

    Summary of provisions

    The following is a summary of the provisions from the rule's entry in the Federal Register:[1]

    “ The rule provides an amendment to the definition of “rifle” in §§ 478.11 and 479.11. In issuing this final rule, the Department has revised the proposed regulatory text in the NPRM to account for the comments received. The rule does not adopt the Worksheet 4999 as proposed in the NPRM. The rule does, however, adopt from the NPRM and proposed Worksheet 4999 several of the objective design features that indicate a firearm is designed, made, and intended to be fired from the shoulder and incorporates those features into the definition of “rifle.” The final regulatory text for the definition of “rifle” reflects the best interpretation of the relevant statutory provisions. All previous ATF classifications involving “stabilizing brace” attachments for firearms are superseded as of May 31, 2023. As such, they are no longer valid or authoritative, and cannot be relied upon. However, firearms with such attachments may be submitted to ATF for re-classification.

    This final rule's amended definition of “rifle” clarifies that the term “designed, redesigned, made or remade, and intended to be fired from the shoulder” includes a weapon that is equipped with an accessory, component, or other rearward attachment (e.g., a “stabilizing brace”) that provides surface area that allows the weapon to be fired from the shoulder, provided that other factors, as listed in the rule, indicate that the weapon is designed, made, and intended to be fired from the shoulder. These other factors are:

    (i) whether the weapon has a weight or length consistent with the weight or length of similarly designed rifles;
    (ii) whether the weapon has a length of pull, measured from the center of the trigger to the center of the shoulder stock or other rearward accessory, component or attachment (including an adjustable or telescoping attachment with the ability to lock into various positions along a buffer tube, receiver extension, or other attachment method) that is consistent with similarly designed rifles;
    (iii) whether the weapon is equipped with sights or a scope with eye relief that require the weapon to be fired from the shoulder in order to be used as designed;
    (iv) whether the surface area that allows the weapon to be fired from the shoulder is created by a buffer tube, receiver extension, or any other accessory, component, or other rearward attachment that is necessary for the cycle of operations;
    (v) the manufacturer's direct and indirect marketing and promotional materials indicating the intended use of the weapon; and
    (vi) information demonstrating the likely use of the weapon in the general community.[7]
    		 ”

    Significant impact

    See also: Significant regulatory action

    Executive Order 12866, issued by President Bill Clinton (D) in 1993, directed the Office of Management and Budget (OMB) to determine which agency rules qualify as significant rules and thus are subject to OMB review.

    Significant rules have had or might have a large impact on the economy, environment, public health, or state or local governments. These actions may also conflict with other rules or presidential priorities. Executive Order 12866 further defined an economically significant rule as a significant rule with an associated economic impact of $100 million or more. Executive Order 14094, issued by President Joe Biden (D) on April 6, 2023, made changes to Executive Order 12866, including referring to economically significant rules as section 3(f)(1) significant rules and raising the monetary threshold for economic significance to $200 million or more.[1]


    The text of the rule states that OMB deemed this rule economically significant under E.O. 12866:

    “ OMB has reviewed this rule and determined that this 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.

    As required by OMB Circular A-4,[175]

    ATF has prepared an accounting statement showing the classification of expenditures associated with the final rule.[7]

    		”

    Text of the rule

    The full text of the rule is available below:[1]

    Responses

    The following section provides a selection of responses to the rule issued by ATF to clarify when a rifle is intended to be fired from the shoulder.

    Attorney General Merrick Garland said in a press release issued by the U.S. Department of Justice that the rule is intended to improve public safety:[8]

    “ Keeping our communities safe from gun violence is among the Department’s highest priorities ... Almost a century ago, Congress determined that short-barreled rifles must be subject to heightened requirements. Today’s rule makes clear that firearm manufacturers, dealers, and individuals cannot evade these important public safety protections simply by adding accessories to pistols that transform them into short-barreled rifles.[7] ”


    David Pucino, the deputy chief counsel at Giffords Law Center, argued that the rule aims to identify products that were being used to create short-barreled rifles with different regulations, according to Fox Nebraska:[9]

    “ I think the rule was a careful effort by the administration to distinguish between a proper item, which is something that makes it easier to fire a pistol from a hand, from an improper item, which is something that while claiming to be one thing was in fact another, was a device that allowed you to have a short-barreled riffle.[7] ”


    Senator John Kennedy (R-La.) joined Republican legislators in introducing a Congressional Review Act (CRA) resolution against the ATF rule. Kennedy stated in a press release that the rule would negatively impact disabled gun owners:[6]

    “ Millions of law-abiding Americans use pistol braces, and many of those Americans rely on braces because they are disabled. If Congress doesn’t correct the ATF’s misguided rule, countless law-abiding gun owners in Louisiana and other states will become criminals in the blink of an eye. The Biden administration’s assault on the Second Amendment isn’t going to stop unless we defend this fundamental liberty.[7] ”


    The NRA Institute for Legislative Action (ILA) published an article that argued that the rule was arbitrary and capricious:[10]

    “ [F]ederal courts have recently proven more willing to invalidate agency actions that go beyond congressionally enacted statutes. Earlier this month, one of ATF’s most recent major rules was struck down by the United States Court of Appeals for the Fifth Circuit. The agency’s stabilizing brace rule should meet the same end for the same reasons. NRA-ILA is already working on litigation to challenge this arbitrary and capricious attack on law-abiding gun owners by the Biden Administration.[7] ”

    Noteworthy events

    Congressional Review Act fails in Senate (2023)

    Senator John Kennedy (R-La.) introduced a Congressional Review Act (CRA) resolution on March 15, 2023, in the U.S. Senate. Representative Andrew Clyde (R-Ga.) also introduced a CRA resolution on March 17, 2023, in the U.S. House of Representatives. The resolution passed the House on June 13, 2023, with a vote of 219-210. The bill failed in the Senate on June 22, 2023, with a vote of 49-50.[3][2]

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 Federal Register, "Factoring Criteria for Firearms With Attached 'Stabilizing Braces'," January 31, 2023
    2. ↑ 2.0 2.1 2.2 2.3 2.4 Congress.gov, "H.J.Res.44 - Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives relating to 'Factoring Criteria for Firearms with Attached 'Stabilizing Braces," accessed September 7, 2023
    3. ↑ 3.0 3.1 Congress.gov, "S.J.Res.20 - A joint resolution providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Department of Justice and the Bureau of Alcohol, Tobacco, Firearms and Explosives relating to 'Factoring Criteria for Firearms With Attached 'Stabilizing Braces," accessed September 7, 2023
    4. ↑ 4.0 4.1 4.2 4.3 Federal Register, "Factoring Criteria for Firearms With Attached 'Stabilizing Braces'," June 10, 2021
    5. ↑ Bureau of Alcohol, Tobacco, Firearms and Explosives, "Gun Control Act," accessed September 7, 2023
    6. ↑ 6.0 6.1 John Boozman, "Boozman, Cotton, Kennedy, Marshall Introduce Resolution to Overturn ATF Pistol Brace Rule," March 16, 2023
    7. ↑ 7.0 7.1 7.2 7.3 7.4 7.5 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    8. ↑ U.S. Department of Justice, "Justice Department Announces New Rule to Address Stabilizing Braces, Accessories Used to Convert Pistols into Short-Barreled Rifles," January 13, 2023
    9. ↑ Fox Nebraska, "While many support the ATF Pistol Brace Rule, others say 'it violates people's rights'," February 5, 2023
    10. ↑ NRA-ILA, "Updates to ATF Final Rule on Stabilizing Braces," January 30, 2023
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