The Law Office of John Pierce, Esq.

We have known this was a possibility for some time.  However, many of us in the industry had hoped that the very valid arguments raised during the comment period, coupled with the Bruen decision, would have caused the BATFE to pause in their headlong rush to redefine more and more firearms and accessories as subject to the National Firearms Act (NFA).

Apparently not.  Today, the ATF published the following on their website:

“On January 13, 2023, the Attorney General signed ATF final rule 2021R-08F, ‘Factoring Criteria for Firearms with Attached Stabilizing Braces,’ amending ATF’s regulations to clarify when a rifle is designed, made, and intended to be fired from the shoulder.”

Final Rule 2021R-08F, is a whopping 293 pages long but there are a number of key takeaways that I wanted to address (MAKE SURE TO READ TO THE END SINCE THE LAST POINT IS VITAL TO USING YOUR TRUST):

– They seemingly intend to apply the factors broadly and sweep in the majority of firearms that can host arm braces.  They have published an example document which you should take a moment and review.

– The rule is NOT yet effective since it has not yet been published in the Federal Register.  Given some of the other points I will discuss below, I anticipate that they will publish it as soon as Tuesday January 17 (Monday is a federal holiday).  NOTE:  It was not published on January 17, but I expect them to move on this quickly given their aggressive movement on announcing it on the 13th and pre-releasing the eForms update allowing free registration.

– They are offering a 120-day amnesty period following the publication of the final rule in the Federal Register during which firearms subject to the rule may be registered in the NFRTR.  This registration does NOT require the normal payment of $200 for the tax stamp.

– Please note that after this amnesty period, any firearms that meet the definition under the new rule will be deemed to be unregistered SBRs and will subject the owner to potential criminal prosecution.

– In support of my belief that they intend to publish this as soon as possible, they have already added an option on the eForms system to submit the Form 1 applications for firearms subject to the new rule which does not require the payment of the $200 tax stamp.

Please note that there are numerous reports of the eForms system crashing due to the heavy load.  I expect we will see significant disruptions in the system and in processing times during 2023 and beyond due to the glut in the system this will inevitably create.

IMPORTANT DETAILS FOR TRUST CLIENTS BELOW!

– Of particular importance to my trust clients, 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 as early as Tuesday the 17th).

From the ATF FAQ …

Therefore, make sure to use my non-NFA item assignment spreadsheet to document the assignment of any ‘host’ firearms that you may wish to SBR under this rule to your trust prior to that date!  Make sure you have the assignment spreadsheet dated as of the date you added the host to the trust and sign the assignment sheet attesting to that date.

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 if you wish to be truly cautious and have the opportunity, there would be no harm in getting the assignment sheet notarized between now and when the final rule is published in the Federal Register.

– Finally, they have published an FAQ answering many other questions about 2021R-08F which is worth reviewing.