Brace rule still not published in the 2023 Federal Register

[Merlin593]

I find it interesting that as of this morning, the ATF has still not published the new brace rule in the 2023 Federal Register. The 120 day "free" registration period of a braced "SBR" can't start until they do. Hopefully there is a lot of internal and external pressures on them right now not to publish at all and forget the whole thing. Any one have any insight? I also wonder how badly the ATF booth is getting rocked by unhappy manufacturers and brace owners on a daily basis at SHOW Show

 

[slsc98]

They’re waiting on the next tragedy that fits their agenda ... then they can wheel Brain-Dead out in front of the cameras … all about maximum distraction points, at this point …

Edit: I find it interesting as well.

 

[Allen65]

They’re waiting on the next tragedy that fits their agenda ... then they can wheel Brain-Dead out in front of the cameras … all about maximum distraction points, at this point …

Edit: I find it interesting as well.

Not that I feel empathy for ATF, but they're between a rock and a hard place. The SBR wording in NFA was written long before anything like an AR pistol was envisioned, so the law doesn't offer any specific guidance on how to treat something that's intended to be a pistol, but "could" be shouldered. ATF is vacillating between positions because they're charged with enforcing an obsolete law that was passed based on fears generated by 30's gangster movies and sensationalist journalism rather than rational analysis of any actual threat.

Congress needs to address the problems created by the NFA, and stop dumping the responsibility on ATF and the Judiciary to clean up the mess they made.

 

[Merlin593]

The below was copied from a post by a 2A attorney from AR15 nation on FB. He brings up some good points that should be considered:
"I'm seeing a lot of folks saying that they're going to ignore ATF's new final rule on pistol stabilizer braces (making most former pistols equipped with PSBs "short-barreled rifles" subject to NFA regulation) because "the courts will be striking it down soon." That is certainly your prerogative and I'm not telling you what to do - but I thought I'd share some perspective as a 2A attorney with nearly 40 years of experience in the legal system.

It is true that only Congress can change a statute, including the NFA. ATF cannot. But this is a little different than the bumpstock situation, where the 5th Circuit Court of Appeals held just last week that ATF's regulation banning bumpstocks is inconsistent with the words of the NFA. Here, Congress defined a rifle as (among other things) a weapon "designed or redesigned, made or remade, and intended to be fired from the shoulder." See 26 USC 5845(c). Congress defined a "short-barreled rifle" as (among other things) a rifle with a barrel less than 16". See 18 USC 921(a)(. ATF isn't changing the words of those laws like they necessarily changed the NFA's definition of "machinegun" in order to ban bumpstocks. Instead, ATF has changed the way they interpret Congress' words, "designed to be fired from shoulder," in the context of determining whether a firearm equipped with a PSB is so designed.

Part of federal agencies' legitimate role is interpreting, executing and enforcing the unambiguous words of Congress in federal statutes. For that reason, liberal federal courts are much more likely to let ATF get away with the new PSB rule. And keep in mind that THREE federal circuits have even upheld the bumpstock ban - which is much more questionable - putting the recent 5th circuit decision in the minority.

The best legal attack on the new final rule on PSBs is two-fold: First, that it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;" as prohibited by the Administrative Procedures Act, 5 USC 706(2)(A). This argument is greatly enhanced by ATF's own dramatic flip-flopping on PSBs since 2012 - which looks pretty damn arbitrary to me. The second is that Congress' words "designed to be fired from the shoulder" are ambiguous, so that only Congress can resolve that ambiguity - and a federal agency cannot interpret an ambiguous statute in a way that puts people in jail (this is called "the rule of lenity" and should directly apply here). Nonetheless, I'm confident that some liberal courts will still uphold the new PSB rule, while some other courts may likely strike it down - and the issue will remain unsettled on a national basis until/unless the Supreme Court resolves the issue.

As to when courts may take action to shut down the ATF's final rule on PSBs, you should consider the fact that the bumpstock ban was implemented OVER FOUR YEARS AGO and it has since been upheld in 3 federal circuits (that include the states of Oklahoma, Kansas, New Mexico, Colorado, Wyoming, Utah, Kentucky, Michigan, Ohio, Tennessee and the District of Columbia). And it's been struck down in just one federal circuit (that only includes Mississippi, Louisiana and Texas). Everywhere the bumpstock ban has been upheld or where the issue remains unresolved, people can still be arrested, prosecuted and imprisoned for up to 10 years for possession of an unregistered NFA firearm. The same will be true for the new final rule on PSBs. And if you're relying on the SCOTUS swooping in and striking down the new rule at its first opportunity, you should know that the court has already turned down review of two of the cases in which the bumpstock ban was upheld.

It remains to be seen how aggressively ATF will enforce the new rule on PSBs after the 120-day registration period - if at all. And if you think the courts are going to shut down the new ATF rule on a national basis, you may ultimately be 100% right. But if you think that is going to happen any time soon, you don't pay much attention to the judicial system. In the meantime, the potential downside to ignoring the new rule is ten years in the big house.

If you want to chime in with "free men don't follow unconstitutional laws" or a pithy quote from Marbury v. Madison, I agree whole-heartedly with the sentiment. But until a court with appropriate jurisdiction rules that a particular law is unconstitutional or otherwise invalid, people will still get sent to prison for violating laws that you, the internet and I all agree should be unenforceable.

Hope this helps."

 

[Saberwalk]

I find it interesting that as of this morning, the ATF has still not published the new brace rule in the 2023 Federal Register. The 120 day "free" registration period of a braced "SBR" can't start until they do. Hopefully there is a lot of internal and external pressures on them right now not to publish at all and forget the whole thing. Any one have any insight? I also wonder how badly the ATF booth is getting rocked by unhappy manufacturers and brace owners on a daily basis at SHOW Show

OMB review concluded on 1/12 according to this: https://www.reginfo.gov/public/do/eoDetails?rrid=283511. Agencies typically take a couple of weeks to proof and finalize the text and then get it signed by the appropriate authorized official. Not familiar enough with ATF to know whether they will post the signed rule on their website before it goes to the Federal Register or just send it on, but publication should follow soon after. So would expect end of January to 2nd week of February but the Federal Register has surprised me of late by publishing only a couple of days after a signed notice goes live.

 

[Fox123]

The below was copied from a post by a 2A attorney from AR15 nation on FB. He brings up some good points that should be considered:
"I'm seeing a lot of folks saying that they're going to ignore ATF's new final rule on pistol stabilizer braces (making most former pistols equipped with PSBs "short-barreled rifles" subject to NFA regulation) because "the courts will be striking it down soon." That is certainly your prerogative and I'm not telling you what to do - but I thought I'd share some perspective as a 2A attorney with nearly 40 years of experience in the legal system.

It is true that only Congress can change a statute, including the NFA. ATF cannot. But this is a little different than the bumpstock situation, where the 5th Circuit Court of Appeals held just last week that ATF's regulation banning bumpstocks is inconsistent with the words of the NFA. Here, Congress defined a rifle as (among other things) a weapon "designed or redesigned, made or remade, and intended to be fired from the shoulder." See 26 USC 5845(c). Congress defined a "short-barreled rifle" as (among other things) a rifle with a barrel less than 16". See 18 USC 921(a)(. ATF isn't changing the words of those laws like they necessarily changed the NFA's definition of "machinegun" in order to ban bumpstocks. Instead, ATF has changed the way they interpret Congress' words, "designed to be fired from shoulder," in the context of determining whether a firearm equipped with a PSB is so designed.

Part of federal agencies' legitimate role is interpreting, executing and enforcing the unambiguous words of Congress in federal statutes. For that reason, liberal federal courts are much more likely to let ATF get away with the new PSB rule. And keep in mind that THREE federal circuits have even upheld the bumpstock ban - which is much more questionable - putting the recent 5th circuit decision in the minority.

The best legal attack on the new final rule on PSBs is two-fold: First, that it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;" as prohibited by the Administrative Procedures Act, 5 USC 706(2)(A). This argument is greatly enhanced by ATF's own dramatic flip-flopping on PSBs since 2012 - which looks pretty damn arbitrary to me. The second is that Congress' words "designed to be fired from the shoulder" are ambiguous, so that only Congress can resolve that ambiguity - and a federal agency cannot interpret an ambiguous statute in a way that puts people in jail (this is called "the rule of lenity" and should directly apply here). Nonetheless, I'm confident that some liberal courts will still uphold the new PSB rule, while some other courts may likely strike it down - and the issue will remain unsettled on a national basis until/unless the Supreme Court resolves the issue.

As to when courts may take action to shut down the ATF's final rule on PSBs, you should consider the fact that the bumpstock ban was implemented OVER FOUR YEARS AGO and it has since been upheld in 3 federal circuits (that include the states of Oklahoma, Kansas, New Mexico, Colorado, Wyoming, Utah, Kentucky, Michigan, Ohio, Tennessee and the District of Columbia). And it's been struck down in just one federal circuit (that only includes Mississippi, Louisiana and Texas). Everywhere the bumpstock ban has been upheld or where the issue remains unresolved, people can still be arrested, prosecuted and imprisoned for up to 10 years for possession of an unregistered NFA firearm. The same will be true for the new final rule on PSBs. And if you're relying on the SCOTUS swooping in and striking down the new rule at its first opportunity, you should know that the court has already turned down review of two of the cases in which the bumpstock ban was upheld.

It remains to be seen how aggressively ATF will enforce the new rule on PSBs after the 120-day registration period - if at all. And if you think the courts are going to shut down the new ATF rule on a national basis, you may ultimately be 100% right. But if you think that is going to happen any time soon, you don't pay much attention to the judicial system. In the meantime, the potential downside to ignoring the new rule is ten years in the big house.

If you want to chime in with "free men don't follow unconstitutional laws" or a pithy quote from Marbury v. Madison, I agree whole-heartedly with the sentiment. But until a court with appropriate jurisdiction rules that a particular law is unconstitutional or otherwise invalid, people will still get sent to prison for violating laws that you, the internet and I all agree should be unenforceable.

Hope this helps."

On the flip side, unlike making a true form 1 sbr, where the process is that you fill out the form and you do not build it until AFTER the form has been approved and you have your stamp in hand. In this case you are sending them proof that you are currently in possession of what they are calling and NFA item and you do not have a stamp in hand. You are trusting that they will in fact use their discretion and not find a reason to charge you.

 

[slsc98]

Not that I feel empathy for ATF, but they're between a rock and a hard place. The SBR wording in NFA was written long before anything like an AR pistol was envisioned, so the law doesn't offer any specific guidance on how to treat something that's intended to be a pistol, but "could" be shouldered. ATF is vacillating between positions because they're charged with enforcing an obsolete law that was passed based on fears generated by 30's gangster movies and sensationalist journalism rather than rational analysis of any actual threat.

Congress needs to address the problems created by the NFA, and stop dumping the responsibility on ATF and the Judiciary to clean up the mess they made.

Valid points and I should clarify; by “they” I refer to BrandonSchiff & ilk.


(Congress svcks! Prove the whole world watching, wrong …)

 

[bcr229]

The four Webex training sessions for FFL's on the new rule are being held Jan 31 and Feb 1, so they may be waiting to publish until after the training.

 

[Apd09]

The four Webex training sessions for FFL's on the new rule are being held Jan 31 and Feb 1, so they may be waiting to publish until after the training.

Oh man, I can only imagine the amount of attorneys for FFLs that will be asked to join the training and observe to be sure that everything is on the level. Then they’ll record the training and it’ll end up as evidence in the cases eventually brought.


Sent from my iPhone using Tapatalk

 

[bcr229]

Attending the WebEx now... the only question brought up by an attendee that ATF hasn't considered is how manufacturers and importers handle their counts for the annual AFMER if they register their braced pistols in inventory as SBR's.

 

[Worsley]

Oh man, I can only imagine the amount of attorneys for FFLs that will be asked to join the training and observe to be sure that everything is on the level. Then they’ll record the training and it’ll end up as evidence in the cases eventually brought.


Sent from my iPhone using Tapatalk

Exactly!!!