Ah... but there is the catch! The way I understand the language, if a person proceeds to file an eForm 1, and take door number 2 for the exemption and tax exempt stamp - they are stating that they currently possess a SBR as defined by the NFA.
Not a pistol with a brace. Not a weapon that you innocently believe is a non-NFA item. They are specifically stating that they knowingly are in possession of a regulated firearm that is not registered. Here's the language again:
"... 1) equipped with a stabilizing brace; 2) meet the definition of "rifle" under federal law; and 3) have a barrel or barrels less than sixteen (16) inches in length. By proceeding with this application, you are certifying that you and the firearm you intend to register meet the tax-exempt parameters set forth in ATF Final Rule 2021R-08F." ATF's eForms website (my bold emphasis)
I believe that "certifying" is a legal term that is, in effect, the same as an affidavit. They are officially stating that they believe they possess a rifle with a barrel less than 16" - not a pistol with a brace. This clarifies that it is intended to be fired from the shoulder.
If we presume bad intent by the ATF: This is a perfect set-up to avoid any defense related to STAPLES v. UNITED STATES. In that case, the defendant believed the weapon was a normal rifle (common definition), not the NFA machinegun the ATF determined it to be. He believed that possessing it was innocent. SCOTUS agreed.
Here however, a person must certify that they understand the item to be a SBR by definition. I haven't gone trough all of them, but I don't think any of the ATF's prior letters, opinions, or statements, lets a person off the hook if they believe the weapon is a rifle (intended to fire from the shoulder) with a short barrel. If I'm wrong, I really, really, really would like to know.
Again, this only really matters if you presume that this is the 'trap' that many are screaming it is. Maybe the ATF just wants to do the right thing. If so, they could ease a lot of concerns by simply changing the language to efile to something like "1.) possess a pistol with a brace attached; 2.) which may be classified as a SBR by this rule; and 3.) you wish to avoid any innocent violation in the future" then you get to proceed with the exempt Form 1. The fact that they agonized over this for a long time, and the language is what it is, does not put me at ease.
It's a big gamble. I'm just trying to understand it before I throw the dice or walk away.
