As of today the arm brace rule (2021R-08F) is in the Public Inspection Issue with a proposed date of publication in the Federal Register of tomorrow, January 31, 2023.
Therefore, if you intend to register an item you own that has an arm brace once the rule becomes effective it is not too late to get an NFA Trust to hold your resulting SBR.
Please note that the item MUST be placed in the trust prior to the date the final rule is published in the Federal Register in order for you to take advantage of the ‘free’ tax stamp in the name of the trust.
See my post here for more details about putting the currently non-NFA item into your trust now.
As of today the arm brace rule (2021R-08F) has NOT been published in the Federal Register.
In addition, it is not currently (as of the time I am writing this) in the Public Inspection Issue. It should be published there at least one day prior to being published in the Federal Register and becoming effective.
Therefore, if you intend to register an item you own that has an arm brace once the rule becomes effective it is not too late to get an NFA Trust to hold your resulting SBR.
Please note that the item MUST be placed in the trust prior to the date the final rule is published in the Federal Register in order for you to take advantage of the ‘free’ tax stamp. See my post here for more details about putting the currently non-NFA item into your trust now.
There has been quite a bit of discussion online as to whether the amnesty registration offered as part of the arm brace rule (2021R-08F) is a ‘trap’ in the legal sense.
In other words, can the information you provide on your Form 1 application be used against you in a criminal proceeding?
Perhaps there might be an issue if your application is denied due to a failure of the background check being completed in a timely manner.
Or maybe the issue is that the arm brace equipped pistol you are attempting to register has a 922(r) compliance issue now that it is being considered to be a rifle (more about this in a future article).
But back to the question at hand. Many people have been citing 26 U.S.C. § 5848 for the proposition that the information on the application, or submitted with the application, cannot be used against you. And those people are ‘mostly’ correct … for a given definition of ‘used against you.‘
Let’s look at that statute (emphasis added)…
26 U.S. Code § 5848 – Restrictive use of information
(a)General rule
No information or evidence obtained from an application, registration, or records required to be submitted or retained by a natural person in order to comply with any provision of this chapter or regulations issued thereunder, shall, except as provided in subsection (b) of this section [furnishing false information], be used, directly or indirectly, as evidence against that person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence.
(b)Furnishing false information
Subsection (a) of this section shall not preclude the use of any such information or evidence in a prosecution or other action under any applicable provision of law with respect to the furnishing of false information.
(Added Pub. L. 90–618, title II, § 201, Oct. 22, 1968, 82 Stat. 1232.)
Sounds pretty watertight right? Not exactly. The courts have ruled on this matter several times in the intervening years. In U.S. v. Hunter,843 F. Supp. 235, 249-253 (E.D.Mich. 1994), the court ruled that, as long as the information was not used “as evidence,” but merely for purposes of initiating an investigation, there was no violation of the statute.
So, what exactly does that mean in the current context? It means that the information provided as part of your application, including any attached schedules admitting possession of a given item, may not be introduced against you as evidence in a criminal proceeding.
However, it could form the basis for starting an investigation if there was something revealed that caused them to believe you were committing a crime other than merely possessing an otherwise legal item equipped with an arm brace during the amnesty period. If that investigation yielded independent evidence then thatevidence could be used against you.
But that is a scholarly analysis of how the courts have ruled on the protections offered by the statute, not a prediction of how the ATF will handle the arm brace amnesty issue.
While no one can predict how the ATF will act in a given situation, I do not believe that there is any intentional trap or intent to prosecute those who legitimately attempt to comply with this rule once it is published. However, with a rule of this complexity, there is always the possibility of unintended consequences.
It will be incumbent upon those of us in the legal community to closely monitor the implementation of this rule once it is published and keep our fellow gun owners informed.
In that time, I have been inundated with calls from clients seeking to make informed decisions about whether to register their arm brace equipped pistols and how to use their NFA trusts to do so.
During these calls, there are a number of questions that I am repeatedly asked … and there are some persistent rumors spreading with answers that do not coincide with the ATF’s published position.
I have listed a few of them below as well as the answer from the ATF FAQ. While they are known to be a mercurial agency, I believe their own publication is the best source for determining how they are looking at the new rule.
Question 1: Are they really letting us register brace-equipped firearms as SBRs or are they creating a new category called ‘braced pistols’?
The rule states that many firearm models equipped with arm braces meet the definition of an SBR with the arm brace attached and therefore need to be registered as such. While an agency such as the ATF can promulgate rules that ‘clarify’ definitions from enabling statutes (in this case the NFA), they cannot add provisions to the law without congressional action.
In just the first page of the ATF FAQ (see screenshot below) they make it clear that what we are talking about is adding brace-equipped firearms to the definition of SBR.
Question 2: If I take advantage of the free tax stamp, will I be able to remove the brace and add a normal stock once it is approved?
Yes. Despite the internet rumors to the contrary, the ATF FAQ (see screenshot below) clearly states that once it is registered as an SBR, you may feel free to remove the brace and add a stock.
Question 3: If I remove and destroy the brace, will the firearm itself still be considered an SBR?
If you remove and destroy the brace then the firearm no longer meets the expanded definition of an SBR.
In addition, they specifically address this question in their compliance section.
Question 4: If I have submitted my Form 1 for my free tax stamp but haven’t received it within the 120-day amnesty period, may I still keep the brace on my firearm while waiting for my tax stamp?
Yes … provided that you have submitted your application (and have proof of your submission) during the 120-day period.
I will do future posts as I continue to work with my clients to address their concerns about this rule.
The ATF has taken the position that, in order to register an SBR under the free tax stamp provision of this rule, the ‘host’ (e.g. pistol, lower, etc.) must already be assigned to, or owned by, the trust prior to the date of publication of the rule (expected any day now).
Regardless of which version you use, make sure you 1) put the name of the trust in the header where there is a blank line; 2) enter the date in the line at the bottom right, and sign it on the line titled “Signed By: Settlor and Trustee”
NOTE: I should add that I have been told that the date in the instructions on the eForms site says that the ‘host’ firearms should have been assigned to the trust prior to January 13, 2023. However, since the rule is not properly promulgated, and therefore has no force and effect pursuant to the Administrative Procedures Act, until it is registered in the Federal Register, I believe that this is merely a ‘placeholder’ date on the site and will be updated once the rule is actually published. If not, I believe that any denials based upon this date would be challengeable on those grounds.
There has been a fierce debate online regarding what ‘evidence’ the ATF will require with many people rushing out to have their assignment sheets notarized. I certainly cannot guarantee how the ATF will handle this issue. However, I can say that assignment sheets are NOT required by law to be notarized and any submission of documentation to the ATF is done under penalty of perjury.
Therefore, I personally believe that a signed and dated assignment sheet, showing that you added the host firearm prior to the publication of the final rule in the Federal Register would be sufficient. However, I cannot guarantee how they will implement this requirement, so I highly recommend that you get the assignment sheet notarized between now and when the final rule is published in the Federal Register.
As for when you should plan on submitting your eForm (after your arm brace equipped items have been added to the trust), I suggest waiting at least a few weeks after the rule is published in the Federal Register.
This accomplishes three things: 1) It allows us to get any additional information from the ATF regarding their interpretation of certain provisions of the rule; 2) It gives any legal challenges time to work their way through the system in case there are going to be preliminary injunctions granted; and 3) Hopefully the eForms system will no longer be crashing constantly due to being overloaded with simultaneous applications.
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As of today the arm brace rule (2021R-08F) is in the Public Inspection Issue with a proposed date of publication in the Federal Register of tomorrow, January 31, 2023.
UPDATE: 
Since the 
The ATF has taken the position that, in order to register an SBR under the free tax stamp provision of this rule, the ‘host’ (e.g. pistol, lower, etc.) must already be assigned to, or owned by, the trust prior to the date of publication of the rule (expected any day now).
