My thoughts are that this comment opportunity isn't the forum to try to argue the point that BATF can't restrict braces that meet their definition of stocks--the law certainly gives them the power to regulate handguns with stocks whether we like it or not.
Rather, this is the place to provide input regarding the definition that will officially be used to differentiate between braces and stocks until Congress passes legislation to differentiate the two (assuming they ever do).
To that end, I have written the following draft comment. I post it in its entirety here, but it is so long that I may cut out all of the line-by-line analysis and just submit the first six and last three paragraphs, or a variation thereof.
***************************************
This commenter will focus on the proposed ATF Worksheet 4999, “FACTORING CRITERIA FOR RIFLED BARREL WEAPONS WITH ACCESSORIES commonly referred to as ‘STABILIZING BRACES’”
It is obvious that this worksheet is intended to mimic the worksheet used by the ATF titled FACTORING CRITERIA FOR WEAPONS, ATF Form 4590, which assesses a handgun submitted to the ATF for potential importation into the United States by examining the firearm and awarding “points” for certain features, or lack of features. Only if the proposed handgun meets or exceeds a stated “qualifying score” is the handgun then considered eligible for importation.
In a similar manner, the proposed ATF Worksheet 4999 examines a firearm with attached stabilizing brace and assigns various penalty points to selected features and attributes of the weapon. If the accumulated points exceed a given score, then it will be determined that the firearm being examined is a not a pistol, but rather a Short-Barreled Rifle (SBR) under the definition of the National Firearms Act (NFA.)
If the intent of this proposed form were for use in determining if a sample firearm submitted by a manufacturer or importer would be lawful to sell or import into the United States as a pistol with stabilizing brace, this commenter would have no objections to the ATF’s proposed Worksheet 4999. In that context, the ATF would either approve or disapprove of the submitted weapon, and if not approved the manufacturer or importer could then either object to the scoring and negotiate with the ATF, or else make modifications to the design to bring the firearm into compliance with the ATF scoring criteria. In either case, the manufacturer or importer would at no time be under criminal penalty for achieving a failing score on the Worksheet. They would simply be unable to sell or import the failing firearm design.
However, this is not the use ATF has proposed for Worksheet 4999. Instead, the ATF is proposing to use this Worksheet to attempt to ascertain the intent of an individual end user of a pistol with stabilizing brace and determine whether the user is in violation of the National Firearms Act against possessing a short-barreled rifle without the requisite mandatory Tax Stamp, which is a Federal felony offense.
It is the opinion of this commenter that such a convoluted and subjectively scored “worksheet” is not the proper way to attempt to ascertain intent on the part of an individual user and subject the person to possible felonious legal jeopardy. Instead, an individual user needs to be apprised of a very clear set of criteria that would be presumptive violations of the NFA SBR laws, in an easy-to-understand, item-by-item “GO/NO GO” manner.
This commenter will examine each section of the proposed ATF Worksheet 4999 individually, and comment on its suitability towards the goal of a simplified GO/NO GO criteria in determining the intent of the user.
SECTION I – PREREQUISITES
The ATF proposes a minimum weight of 64 ounces and a minimum length of 12 inches for a pistol to “qualify” as a candidate for a Pistol Stabilizing Brace. There is no statutory definition of a pistol that states a minimum weight or length of a pistol, other than for importation purposes, therefore there is no authority granted to the ATF to make this determination. Further, setting a minimum weight or length for a pistol to “qualify” as a candidate for a pistol stabilizing brace does not take into account any physical disabilities or limitations of any individual shooter. Therefore, this commenter OBJECTS TO MINIMUM WEIGHT OR LENGTH REQUIREMENTS FOR ELIGIBLITY OF A PISTOL TO HAVE A STABILIZING BRACE ATTACHED.
The ATF also proposes that a pistol cannot exceed 26 inches in length in order to remain an eligible candidate for a stabilizing brace. There is no statutory definition of a pistol that states a maximum length that a pistol cannot exceed, therefore there is no authority granted to the ATF to set such a maximum allowable length. This commenter OBJECTS TO MAXIMUM LENGTH REQUIREMENTS FOR ELIGIBLITY OF A PISTOL TO HAVE A STABILIZING BRACE ATTACHED.
SECTION II – Accessory Characteristics
ACCESSORY DESIGN: The ATF proposes that the cosmetic design of the stabilizing brace somehow affects the utility of the brace for its intended use to stabilize the firearm during one handed firing. There is no evidence that the inclusion of sling attachment points, adjustment levers, or “hardened surfaces” detract from a stabilizing brace’s ability to function as intended. Indeed, adjustability makes it easier for the brace to be custom fit to each individual user, and should be considered an asset, not a detraction, from the utility of the stabilizing brace. Further, the ATF does not define what specific criteria constitutes a stabilizing brace to be considered “based on a known shoulder stock design.” Is the outline alone enough to be considered “based on a known shoulder stock design?” It is unclear. Therefore this commenter OBJECTS TO USING ANY ACCESSORY DESIGN CRITERIA AS A FACTOR IN DETERMINING THE INTENT OF THE USER.
REAR SURFACE AREA: The ATF attempts to score a stabilizing brace based on the amount of rear surface area the brace possesses, with a sliding point scale that increases with the amount of area at the rear of the brace, yet does not provide an objective measurement in square inches how much surface area would garner how many points. Without an objective figure for surface area, and a stated means of how to measure surface area, this commenter OBJECTS TO USING REAR SURFACE AREA AS A FACTOR IN DETERMINING THE INTENT OF THE USER.
ADJUSTABILITY: The ATF attempts to score a stabilizing brace’s ability to be adjusted as a factor against it in its utility as a stabilizing brace. As previously stated, adjustability can increase a stabilizing brace’s utility, in as much as it allows the brace to be properly fitted to different shooters. Further, the ATF had already included “adjustment levers” as a scoring criteria in the previous section “ACCESSORY DESIGN,” so scoring adjustability a second time is a form of “double jeopardy.” Therefore, this commenter OBJECTS TO USING ADJUSTABILITY AS A FACTOR IN DETERMINING THE INTENT OF THE USER.
STABILIZING SUPPORT: The ATF proposes to score a stabilizing brace based on its design style, with three different styles listed.
The Counterbalance Design would be penalized if the “tailhook” folded upwards when not in use. The folding of the stabilizing tailhook is a requirement to make the pistol transportable and storable in a case. Therefore, the Counterbalance design should not be penalized for having a folding tailhook, and indeed all current designs on the market include this feature. Therefore, folding tailhooks should not be held against a particular design.
The Fin-type would be penalized if it did not have an attached strap. However, the ATF never stipulated in their previous Determination Letters that such stabilizing brace designs had to include an arm strap. The fin-type brace uses the shooter’s horizontal ‘torque’ on the pistol’s handgrip to drive the fin into the shooter’s forearm in order to provide the necessary stabilization. Therefore, the lack of an arm strap should not be held against this design.
The “Cuff-type” of stabilizing brace is perhaps the most popular style, and curiously also the one most scrutinized by the ATF. The ATF is very inconsistent in their logic in assigning “points” against designs in cuff-type braces that it rewards in other styles of braces. For example, if a cuff-type brace has flexible material that only wraps partially around a forearm, yet still has a strap that fully encircles the shooter’s forearm, it is penalized. However, if a fin-style stabilizing brace that also fails to fully encircle the shooter’s forearm has a strap to perform that function, it is “rewarded” with zero points. The absence or presence of a strap could be used as a judging criteria, however the amount of “wrap” around the forearm should not. Therefore, this commenter OBJECTS TO USING STABILIZING SUPPORT BEYOND THE PRESENSE OR ABSENSE OF AN ATTACHING STRAP AS A FACTOR IN DETERMINING THE INTENT OF THE USER.
SECTION III – Configuration of Weapon
LENGTH OF PULL – w/Accessory in Rear most “Locked Position”: The ATF proposes that penalty points be awarded based on a sliding scale of the “length of pull” of the pistol from the rear of the stabilizing brace to the trigger. It is the ATF’s view that any length of pull beyond 13 1/2” is de facto proof of an NFA short-barreled rifle. This arbitrary length of 13 1/2” fails to take into account the distance from a bent index finger to the bicep of an adult male, which can be 15” or more. The ATF also fails to explain why lengths of pull less than this arbitrary 13 1/2” should be penalized on a sliding scale. This measurement should be more realistic, such as 15”, and should also be used as a strict “go/no go” criteria, not a criteria judged on a sliding points scale. Therefore, this commenter OBJECTS TO USING LENGTH OF PULL GREATER THAN 13 1/2” AS A FACTOR IN DETERMINING THE INTENT OF THE USER. However, if it is determined that 13 1/2" is indeed going to be the maximum standard, this commenter OBJECTS TO PENALIZING ANY LENGTHS OF PULL LESS THAN THE DESIGNATED MAXIMUM AS A FACTOR IN DETERMINING THE INTENT OF THE USER.
ATTACHMENT METHOD: The ATF proposes to score a stabilizing brace by its attachment method, including assigning penalty points for spacers or folding adapters that increase the length of pull of the pistol with stabilizing brace. However, the ATF had already addressed length of pull in the previous section “LENGTH OF PULL,” therefore there is no reason why a stabilizing brace should be penalized for having spacers or folding adapters after the overall length of pull was already measured and scored. How the brace achieved its length of pull is not relevant to the question. Therefore, this commenter OBJECTS TO USING ATTACHMENT METHOD AS A FACTOR IN DETERMING THE INTENT OF THE USER.
“STABILIZING BRACE” MODIFICATIONS/CONFIGURATION: Here the ATF is attempting to score a stabilizing brace based on the presence or absence of an attaching strap, the length of the strap, and the materials the strap is fabricated from. The ATF had already scored the “Fin-type” stabilizing brace in the previous section titled “STABILIZING SUPPORT – “Fin-type” design WITHOUT Arm Strap.” Why the ATF felt the need to score the inclusion of an arm strap a second time is unclear. Also, it is unclear why the ATF feels that a nylon strap with an adjustment buckle is somehow more utilitarian on a stabilizing brace than a strap made from elastic material that does not need to be readjusted before each use. It is understandable that if a stabilizing brace requires a strap in order function as a brace, and that strap has been removed by the end user, or shortened to the point that it no longer can be used to secure the brace to the shooter’s forearm, that can be an indication of the user’s intent, but it is unclear why a sliding point scale is necessary. It should instead be a simple “go/no go” criteria if a “Cuff-type” brace has had its strap removed or permanently shortened by the user. Therefore, this commenter OBJECTS TO USING STABILIZING BRACE MODIFICATIONS/CONFIGURATION BEYOND THE PRESENCE/ABSENSE OF A STRAP ON A CUFF-TYPE BRACE OR MODIFICATIONS TO BRACE FOR SHOULDERING AS A FACTOR IN DETERMING THE INTENT OF THE USER.
PERIPHERAL ACCESSORIES: The ATF attempts to present a myriad of firearm accessories that may be installed on a pistol with stabilizing brace by the end user or the manufacturer and assign arbitrary penalty points to each accessory. Each accessory should be examined separately, and either determined to be acceptable on a pistol with stabilizing brace, or be prohibited on a pistol with stabilizing brace. For example, the presence of a hand stop has always been considered acceptable on a pistol, but a vertical foregrip has not. Each of the listed peripheral accessories should be a simple “go/no go” determination. This commenter has no objection to classifying a secondary (vertical) grip or the presence of a scope/sights with eye relief incompatible with one-handed fire as de facto evidence of intent to use the pistol with stabilizing brace as a short-barreled rifle, but objects to assigning arbitrary lesser scores to other useful accessories such as flip-up backup sights, hand stops, and bipods. Also, as previously stated, there is no statutory definition of the maximum allowable weight of a pistol, and there is no authority given to the ATF to set such a maximum. Therefore, this commenter OBJECTS TO USING PERIPHERAL ACCESSORIES OTHER THAN VERTICAL FOREGRIPS AND SHORT EYE-RELIEF SIGHTS AS A FACTOR IN DETERMINGING THE INTENT OF THE USER.
IN SUMMARY, this commenter objects to the proposed ATF Worksheet 4999 as applied to an individual user of a pistol with attached stabilizing brace, and instead recommends that the following criteria be used as presumptive intent by the end user to circumvent the NFA SBR laws:
A weapon with stabilizing brace will be considered a short-barreled rifle under the National Firearms Act if it has one or more of the following criteria:
* A length of pull greater than 15”
* A vertical foregrip.
* A scope or sight with eye relief incompatible with one-handed fire.
* A brace with attaching strap removed or too short to function properly.
* A brace modified for shouldering.