pistol brace overturned?

Mr. Tom:

Thanks for the update and advice. Which i’ll heed.

One more question:

Assume the final rule does survive and the injunction is lifted.
A. Will simply removing and discarding the brace, OR
B. Installing a 16” barrel and discarding the short barrel,

bring a pistol into Final Rule compliance? No other changes required?

Again, thanks.
Gbw
Yes to A and B. The brace will be no different than a stick at that point.

FYI: The ATF rule also added other ambiguous rules, one of which says installing some optics, scopes, magnifiers, etc with eye relief certain eye relief can magically morf a braceless/stockless pistol to an illegal SBR.
 
First there is no stamp with the amnesty form 1 as there's no tax collection.
Second the amnesty form 1 is an approval with conditions. What that means if overturned is up to them, they can leave the ones already approved alone or cancel them.
Third you need to understand that a SBR is only a SBR when it's actually in SBR configuration, so if the brace rule is overturned and they let you keep your form 1 then you can do what you want leave it a SBR or not.

I wouldn't get rid of the brace until the ATF says what they're gonna do with the approved forms.
The approved forms will more than likely remain approved. The "conditions" are just for record purposes at the time moment in time the approval is being decided on. Because those "conditions" no longer exist because of the national injunction, the ATF immediately stop approving all brace applications that were still pending approval; however, the application that were decided on when the rule was in place are a done deal. That said, I don't believe the Attorney General had the power to waive the tax in the first place according to the plain text of the NFA; however, I am not a lawyer. There maybe case law that supports the waiver. I doubt any progun group will challenge the waiver either way.

I still had several pending Form 1's that will likely never be approved because I highly doubt the rule will be put back in place, and even if it was temporarily, I expect the ATF to slow walk approvals until they lose ones and for all.
 
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Mr. Tom:

Thanks for the update and advice. Which i’ll heed.

One more question:

Assume the final rule does survive and the injunction is lifted.
A. Will simply removing and discarding the brace, OR
B. Installing a 16” barrel and discarding the short barrel,

bring a pistol into Final Rule compliance? No other changes required?

Again, thanks.
Gbw
If the injunction is lifted or a court ruling allows Rule 2021R-08F to remain, this still applies: https://www.atf.gov/rules-and-regulations/factoring-criteria-firearms-attached-stabilizing-braces
 
Yes to A and B. The brace will be no different than a stick at that point.

FYI: The ATF rule also added other ambiguous rules, one of which says installing some optics, scopes, magnifiers, etc with eye relief certain eye relief can magically morf a braceless/stockless pistol to an illegal SBR.
Thats not what the rule says at all.
Rule 2021R-08F addresses only pistols WITH an arm brace. A "braceless/stockless pistol" remains a pistol and has nothing to do with this rule.

Factoring Criteria for Firearms With Attached ‘‘Stabilizing Braces’’
From page 6480:
"....Accordingly, the Department amends
the definition of ‘‘rifle’’ under 27 CFR
478.11 and 479.11 to expressly state that
the term ‘‘designed or 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 other factors, as
listed in the amended regulations and
described in this preamble, indicate that
the weapon is designed, made, and
intended to be fired from the shoulder.
The other factors are:
(1) Whether the weapon has a weight
or length consistent with the weight or
length of similarly designed rifles;
(2) 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;
(3) 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;
(4) 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;
(5) The manufacturer’s direct and
indirect marketing and promotional
materials indicating the intended use of
the weapon; and
(6) Information demonstrating the
likely use of the weapon in the general
community.
 
..... I don't believe the Attorney General had the power to waive the tax in the first place according to the plain text of the NFA; however....
He does. Not only does he have the authority he can waive taxes as often as he wants as long as its not for more than a 90 day period.
In the original legislation, it referred to "the Secretary", at the time the Secretary of the Treasury. Subsequent legislation moved that responsibility to "the Secretary" over ATF....the Attorney General.

This isn't the first time "the Secretary" has waived registration, transfer or "making" taxes. The most memorable is the Amnesty of 1968. Further the NFA of 1934 allowed a the free registration of NFA firearms. More recently the free registration of certain shotguns deemed destructive devices.
A good read: Voluntary and Amnesty Registrations Under the National Firearms Act: Current Prospects and Some History From 1934 to 1968
 
He does. Not only does he have the authority he can waive taxes as often as he wants as long as its not for more than a 90 day period.
In the original legislation, it referred to "the Secretary", at the time the Secretary of the Treasury. Subsequent legislation moved that responsibility to "the Secretary" over ATF....the Attorney General.

This isn't the first time "the Secretary" has waived registration, transfer or "making" taxes. The most memorable is the Amnesty of 1968. Further the NFA of 1934 allowed a the free registration of NFA firearms. More recently the free registration of certain shotguns deemed destructive devices.
A good read: Voluntary and Amnesty Registrations Under the National Firearms Act: Current Prospects and Some History From 1934 to 1968
Quote the text of the NFA that gives the Secretary the power to waive the tax in the context of how and why it was waived for braces.
 
Here is a pdf that shows the full document:
See page 1233 Sec. 5852 (f)
https://www.govinfo.gov/content/pkg/STATUTE-82/pdf/STATUTE-82-Pg1213-2.pdf#page=1

Part II - Exemptions. 1233 Sec. 5852 said:
§ 5852 General transfer and making tax exemption.

(a) Transfer. Any firearm may be transferred to the United States or any department, independent
establishment, or agency thereof, without payment of the transfer tax imposed by section 5811.

(b) Making by a person other than a qualified manufacturer. Any firearm may be made by, or on
behalf of, the United States, or any department, independent establishment, or agency thereof, without payment of the making tax imposed by section 5821.

(c) Making by a qualified manufacturer. A manufacturer qualified under this chapter to engage in such business may make the type of firearm which he is qualified to manufacture without payment of the making tax imposed by section 5821.

(d) Transfers between special (occupational) taxpayers. A firearm registered to a person qualified
under this chapter to engage in business as an importer, manufacturer, or dealer may be transferred by that person without payment of the transfer tax imposed by section 5811 to any other person qualified under this chapter to manufacture, import, or deal in that type of firearm.

(e) Unserviceable firearm. An unserviceable firearm may be transferred as a curio or ornament
without payment of the transfer tax imposed by section 5811, under such requirements as the l Secretary may by regulations prescribe.

(f) Right to exemption. No firearm may be transferred or made exempt from tax under the provisions of this section unless the transfer or making is performed pursuant to an application in such form and manner as the Secretary may by regulations prescribe.
Yes, this is what I was basing my orginal comments on. I do not read that as the Secretary aka Attorney General has the blanketed power to exempt the "transfer" (giving possession of NFA items to someone else) OR the tax as Secretary sees fit for any reason(s) that lone Secretary pulls out of thin air via a simple regulatory change.

I read it as a firearm that is being transferred or given a tax exemption must adhere to one of the clauses in 1233 Sec. 5852, and the transfer or maker of the NFA firearm must apply. The Secretary has power over what "form" and "manner" aka what the application process looks like.

No one given brace amesty qualifies for it under the Exemption clauses in 1233 Sec. 5852 (a) - (e) as I read it, thus Attorney General Merrick Garland did not have the authority to wave the tax in the first place unless there is case law or some other statue that I don't know about that gives him that power.
 
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One of those factors are eye relief of an optic even if the pistol does NOT have a brace installed. An AR15 pistol with only a buffer tube and some scopes could be seen as an illegal SBR under the new rule.
You'd still need to be able to shoulder it.
 
I read it as a firearm that is being transferred or given a tax exemption must adhere to one of the clauses in 1233 Sec. 5852, and the transfer or maker of the NFA firearm must apply. The Secretary has power over what "form" and "manner" aka what the application process looks like.
You confuse paragraphs (a) through (f) as "the provisions of this section".....they are not. Page 1229 "Subchapter B Part I General Provisions" are Sec. 5841-5849. Part II is "Exemptions".

No one given brace amesty qualifies for it under the Exemption clauses in 1233 Sec. 5852 (a) - (e) as I read it, thus Attorney General Merrick Garland did not have the authority to wave the tax in the first place unless there is case law or some other statue that I don't know about that gives him that power.
Paragraph (f) is its own separate exemption and is the reason a Form 1 under Rule 2021R-08F is possible.
There is no case law that has challenged this authority and to my knowledge you are the first to disagree. :)

(f) Right to exemption. No firearm may be transferred or made exempt from tax under the provisions of this section unless the transfer or making is performed pursuant to an application in such form and manner as the Secretary may by regulations prescribe.
To me, para (f) clearly gives "the Secretary" wide latitude in declaring an amnesty and tax exemption in any form and manner he so desires, as long as there is an NFA registration involved. As Rule 2021R-08F requires registration, "the Secretary" can make such registration exempt from the tax.
 
Using a rifle buffer tube an AR pistol can be shouldered - I remember seeing guys wrap bare buffer tubes in things that looked like pool noodles as padding. I never tried it, so I have no direct experience with how well it works.
 
Just an aside in case the rule or a phoenix of same reappears.

I would NOT purchase a commercially marketed , braced lower or completed pistol, during this injunction period. Those had very few option under the now defunct (thank goodness) rule.

If your flavor of go-bang is a braced lower, buy a separated brace and configure the firearm as a pistol, at your home.
 
Using a rifle buffer tube an AR pistol can be shouldered - I remember seeing guys wrap bare buffer tubes in things that looked like pool noodles as padding. I never tried it, so I have no direct experience with how well it works.
In the "Braced pistol factoring rules" yet to be "finalized" the length of the buffer tube is actually indicated. Short pistol buffer tubes with no stock provision are required in the almost impossible to comply with factoring .
 
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