Another Small Catch In The Pistol Brace SBR Amnesty Program: You Can't Trust Your Pistol Brace SBR

There's a bit of an annoying limitation in the free tax stamp and amnesty for the arm-brace program. 

You cannot use the free tax stamp Form 1 program to place the arm-brace pistol into an NFA Trust, unless you have documentary evidence that the NFA Trust owned it before January 13, 2023.  An NFA Trust should not have been owning a non-NFA item so that's the fun with that.

The freebie is for individuals only.  

You can see the reasoning for the limitation, such as it is: 

Since it wasn't an NFA firearm before January 13, 2023, the NFA trust would not have owned it before, so it's not a free transfer to an NFA trust now that it has become by decree an NFA item as the NFA Trust was not the owner at the time, and the freebie is for the actual owners of the pistols.

Now, in addition, another reason is that they really don't like NFA Trusts.  

The Trusts take a lot longer for them to process, as they have to run background checks on all active trustees, and if you didn't have your trust done right, the beneficiaries too. They also have to check with their counsel if the trust is even legally sufficient.

You'd be surprised with the garbage a do-it-yourselfer who, instead of paying a attorney who knows how to do these rather specialized trusts, cobbles a trust together based on things they saw on the Internet can do.  As you would expect, the results aren't pretty.

On top of that, the trust owners keep screwing the legally proper trusts up by doing stuff with them without consulting their lawyer (such as adding trustees willy-nilly and keeping the same person as a successor trustee when they are an active trustee, and other fun and games). Many headaches ensue.

In short, I think they're tired of having to process NFA Trusts and the shenanigans involved in them and want individual Form 1s as they are easier to get processed.  

In short, if you want to put your arm-brace pistol into a NFA Trust you either have to do the freebie to yourself first and then do a $200 Form 1 transfer to your trust later.  

The other option is you should disassemble the firearm, do a standard paid-for Form 1 naming your Trust as the Maker, and then reassemble only (and probably out a real stock on it at that point because, why not?) when the approval is completed and you get your approved tax stamp.

Do Braced Pistols Form 1'd As SBRs Under The Amnesty Require Engraving/Marking?

It's a good question.

As you should know by now, if you have an Arm-Braced pistol, you have until May 31, 2023 to get them on a free Form 1 or you have to make them no longer an Arm-Braced pistol.

If you don't want the amnesty registration, you can by May 31, 2023 undo them by disassembly; placing a 16" or larger barrel on them; or otherwise bringing them into compliance. Or if you want to reach into your wallet, disassemble them now, then pay $200 and then after approval of a standard Form 1 reassemble them and make them an SBR.

Note that just taking the brace off an AR type pistol may not get you into compliance as if you can still shoulder the buffer tube, ATFE is taking the position that it is still an SBR and that will be consequential for you and not in a good way.

So, assuming you go the free tax stamp route on your braced pistol that is now Determined-To-Be-An-SBR-After-Prior-Determinations-Declared-It-Was-Not, do you need to have it engraved with your name and city/state as if you were doing a typical Form 1?

From the Form 1 Section K(7) that you will fill out under this program you would think so, as here's the stated requirement on the form: 

(7) Markings: The maker is required to mark the firearm with the Maker’s name, City and State as shown in item 3b. All markings are to be in compliance with 27 CFR §§ 478.92 and 479.102. Do not alter or modify the serial number of an existing firearm. Enter the existing serial number, or if a new firearm, one you create. The Maker may not duplicate any serial number placed by the Maker on any other firearm.

That would seem that you do have to mark the firearm doesn't it?

But wait, there's more.

There's an ATFE guidance that is contrary to this instruction on the form and is in the final regulation as well:

Once the firearm is registered, am I required to mark the firearm since I manufactured a short-barreled rifle (SBR)?

If the SBR equipped with a “stabilizing brace” is registered by May 31, 2023, the possessor is allowed to adopt the markings on the firearm.  The maker’s marking exception is only applicable to firearms that are registered pursuant to the final rule.  If the firearm is a personally made firearm, the possessor must mark in accordance with 27 CFR 478.92 & 479.102 prior to submitting the E-Form 1.

So, per this ruling, you do not need to engrave the amnesty-registered arms-braced pistols now declared to be SBRs so long as you didn't make the receiver yourself from an 80% lower or such.  Certainly another reason to utilize the program. 

I can sorta see the reasoning:  

You as the possessor of an arm-braced pistol did not actually manufacture them as an SBR, you manufactured them as a pistol that is now only later determined to be an SBR. Thus, you wouldn't need to engrave it as when you made it, it was not an SBR, so you had not manufactured an SBR.

Clear as mud, isn't it? Part of the confusion is they are using the normal Form 1 as part of this program rather than a specially made Form 1 for this amnesty and thus the contradiction between the form and the regulation for the arm brace amnesty program.

Brace Yourself For Black Friday Weekend?

One item to consider for purchase this weekend is a brace for an AR or AK pistol you may consider building.

Certainly there are some good sales for them going on at the moment from various vendors for Black Friday.

Since it appears that ATFE is about to issue their ruling in December that effectively makes AR15/AK braced pistols SBRs and it seems they may offer a free registration of such pistol braced SBRs saving $200 per pistol thus made by regulatory fiat into an SBR there is an opportunity here.

There's also some peril in this ruling, as some states allow pistol braced pistols but do not allow SBRs, and the legal interplay between state and federal law and their competing definitions can be problematic. 

The interplay can also be beneficial. In Michigan, for example, you can have a firearm that is both a Federal registered SBR and a Pistol under Michigan law at the same time, which allows for some interesting and useful things to happen if you have a concealed pistol license.

In 2019 there were some 413,167 SBRs in the NFRTR.

There are estimated at least 3-7 million braced pistols out there, which would increase the number of SBRs on the registry almost 20-fold.  Since those are rookie numbers we ought to pump those numbers up some this weekend.

Anyone else think statistical proof that 7,413,167+  SBRs are in circulation would make a convincing argument that SBRs are in common use. Hence SBRs as found to be in common use should not be banned by a State nor need to registered Federally as unusual and dangerous weapons?

Hence go forth and get a a brace and assemble yourself or buy a completed an AR pistol prior to the regulation coming out.  It's fun, it's easy, and you will likely get a free Form 1 and help make SBRs common use items. 

In short ATFE classifying braced pistols as SBRs may just have a wonderful unintended consequence of providing the fodder for a challenge to the banning of SBRs by states and requiring their registration and control federally on the basis of the common use test.

So go on out and brace up this weekend!