Proposed Rule2026-08918
Clarifying Exceptions to the Brady Act Background Check Requirement
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 6, 2026
Issuing agencies
Justice DepartmentAlcohol, Tobacco, Firearms, and Explosives Bureau
Abstract
The Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") proposes amending Department of Justice ("Department") regulations to clarify when a state's firearms-related permit meets the requirements under the Gun Control Act of 1968, as amended, as an alternative to the National Instant Criminal Background Check System check and includes minor changes to ensure that the regulatory language adheres closely to the language used in the statute.
Full Text
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<title>Federal Register, Volume 91 Issue 87 (Wednesday, May 6, 2026)</title>
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[Federal Register Volume 91, Number 87 (Wednesday, May 6, 2026)]
[Proposed Rules]
[Pages 24436-24441]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-08918]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 478
[Docket No. ATF-2026-0008; ATF No. 2025R-25P]
RIN 1140-AA85
Clarifying Exceptions to the Brady Act Background Check
Requirement
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Bureau of Alcohol, Tobacco, Firearms, and Explosives
(``ATF'') proposes amending Department of Justice (``Department'')
regulations to clarify when a state's firearms-related permit meets the
requirements under the Gun Control Act of 1968, as amended, as an
alternative to the National Instant Criminal Background Check System
check and includes minor changes to ensure that the regulatory language
adheres closely to the language used in the statute.
DATES: Comments must be submitted in writing, and must be submitted on
or before (or, if mailed, must be postmarked on or before) August 4,
2026. Commenters should be aware that the federal e-rulemaking portal
comment system will not accept comments after midnight Eastern Time on
the last day of the comment period.
ADDRESSES: You may submit comments, identified by RIN 1140-AA85, by
either of the following methods--
[[Page 24437]]
<bullet> Federal e-rulemaking portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Mail: ATF Rulemaking Comments; Mail Stop 6N-518, Office of
Regulatory Affairs; Enforcement Programs and Services; Bureau of
Alcohol, Tobacco, Firearms, and Explosives; 99 New York Ave. NE;
Washington, DC 20226; ATTN: RIN 1140-AA85.
Instructions: All submissions must include the agency name and
number (RIN 1140-AA85) for this notice of proposed rulemaking (``NPRM''
or ``proposed rule''). ATF may post all properly completed comments it
receives from either of the methods described above, without change, to
the federal e-rulemaking portal, <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
includes any personally identifying information (``PII'') or business
proprietary information (``PROPIN'') submitted in the body of the
comment or as part of a related attachment they want posted. Commenters
who submit through the federal e-rulemaking portal and do not want any
of their PII posted on the internet should omit it from the body of
their comment and in any uploaded attachments that they want posted. If
online commenters wish to submit PII with their comment, they should
place it in a separate attachment and mark it at the top with the
marking ``CUI//PRVCY.'' Commenters who submit through mail should
likewise omit their PII or PROPIN from the body of the comment and
provide any such information on the cover sheet only, marking it at the
top as ``CUI//PRVCY'' for PII, or as ``CUI//PROPIN'' for PROPIN. For
detailed instructions on submitting comments and additional information
on the rulemaking process, see the ``Public Participation'' heading of
the SUPPLEMENTARY INFORMATION section of this document. In accordance
with 5 U.S.C. 553(b)(4), a summary of this rule may be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Commenters must submit comments by using one of
the methods described above, not by emailing the address set forth in
the following paragraph.
FOR FURTHER INFORMATION CONTACT: Office of Regulatory Affairs, by email
at <a href="/cdn-cgi/l/email-protection#307f6271705144561e575f46"><span class="__cf_email__" data-cfemail="377865767756435119505841">[email protected]</span></a>, by mail at Office of Regulatory Affairs; Enforcement
Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and
Explosives; 99 New York Ave. NE; Washington, DC 20226, or by telephone
at 202-648-7070 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Background
The Attorney General is responsible for enforcing the Gun Control
Act of 1968 (``GCA''), as amended. This responsibility includes the
authority to promulgate regulations necessary to enforce the provisions
of the GCA.\1\ See 18 U.S.C. 926(a). Congress and the Attorney General
have delegated the responsibility for administering and enforcing the
GCA to the Director of ATF (``Director''), subject to the direction of
the Attorney General and the Deputy Attorney General. See 28 U.S.C.
599A(b)(1), (c)(1); 28 CFR 0.130(a)(1)-(2); Treas. Order No. 221(2)(a),
(d), 37 FR 11696-97 (June 10, 1972).\2\ Accordingly, the Department and
ATF have promulgated regulations to implement the GCA in 27 CFR part
478.
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\1\ Some GCA provisions still refer to the ``Secretary of the
Treasury.'' However, the Homeland Security Act of 2002, Public Law
107-296, 116 Stat. 2135, transferred the functions of ATF from the
Department of the Treasury to the Department of Justice, under the
general authority of the Attorney General. 26 U.S.C. 7801(a)(2); 28
U.S.C. 599A(c)(1). Thus, for ease of reference, this proposed rule
refers to the Attorney General where relevant.
\2\ In Attorney General Order Number 6353-2025, the Attorney
General delegated authority to the Director to issue regulations
pertaining to matters within ATF's jurisdiction, including under the
National Firearms Act, GCA, and Title XI of the Organized Crime
Control Act. ATF's jurisdiction also includes those portions of sec.
38 of the Arms Export Control Act pertaining to permanently
importing defense articles and services and the Contraband Cigarette
Trafficking Act.
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The Brady Handgun Violence Prevention Act (``Brady Act''), which
amended the GCA, generally requires federal firearms licensees
(``FFLs'') to initiate a National Instant Criminal Background Check
System (``NICS'') background check before transferring a firearm to a
person who is not an FFL, i.e., a non-licensee. 18 U.S.C. 922(t). The
Department delegated oversight of NICS to the Federal Bureau of
Investigation (``FBI''). See 28 CFR part 25. However, the Brady Act
contains exceptions, codified at 18 U.S.C. 922(t)(3), to the NICS check
requirement, including an exception for persons who have certain state
permits that authorize them to possess or acquire firearms.
Specifically, the exceptions provide that the NICS check is not
required if the non-licensee transferee presents a license or permit
that: (1) allows that person to possess or acquire a firearm; (2) was
issued not more than five years earlier by the state in which the
transfer is to take place; and (3) the law of the state provides that
such a permit is to be issued only after an authorized government
official has verified that the information available to such official
does not indicate that possession of a firearm by such other person
would be in violation of law. ATF implemented this provision of the
statute in 27 CFR 478.102(d) in 1998.\3\
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\3\ Implementation of Public Law 103-159, Relating to the
Permanent Provisions of the Brady Handgun Violence Prevention Act,
63 FR 58279 (Oct. 29, 1998).
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In May 2025, after conducting a review of the laws and regulations
of all U.S. states and territories, ATF issued an open letter to all
FFLs on the NICS alternate permit exception (``Open Letter'') providing
updated guidance regarding which state firearms permits meet the
conditions to qualify under the exception to the NICS background
check.\4\ As part of this review, ATF examined whether the laws of each
state require the issuing authority to (1) check available information,
including conducting a NICS background check, and (2) not issue a
permit when the available information indicates that the applicant is
prohibited from possessing firearms under federal, state, or local law.
ATF also published on its website an accompanying chart showing its
assessment of qualifying and non-qualifying NICS alternate permits.\5\
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\4\ ATF, Open Letter to All Federal Firearms Licensees (May 23,
2025), <a href="https://www.atf.gov/file/201946/download">https://www.atf.gov/file/201946/download</a> [<a href="https://perma.cc/K2JE-2FGZ">https://perma.cc/K2JE-2FGZ</a>].
\5\ ATF, Brady Permit Chart (last reviewed Sep. 26, 2025),
<a href="https://www.atf.gov/rules-and-regulations/laws-alcohol-tobacco-firearms-and-explosives/gun-control-act/brady-law/brady-permit-chart">https://www.atf.gov/rules-and-regulations/laws-alcohol-tobacco-firearms-and-explosives/gun-control-act/brady-law/brady-permit-chart</a>
[<a href="https://perma.cc/B3J7-F594">https://perma.cc/B3J7-F594</a>].
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The Open Letter addressed the process FFLs should follow if a non-
licensee presents a qualifying NICS alternate permit. This process
includes verifying that the permit was issued or renewed not more than
five years earlier by the state in which the transfer is to occur and
that the permit has not expired under state law. The Open Letter
reminded FFLs that while certain permits, including ``lifetime''
permits, may be valid under state law for more than five years, these
only qualify as NICS alternatives for five years from the date they
were issued. FFLs are responsible for verifying the date the permit was
issued or its renewal date before treating the transaction as NICS-
exempt.
The Open Letter cautions FFLs that they should conduct a NICS check
whenever they are unable to confirm the validity of the permit or the
date a permit that is valid for more than five years was issued. See
Open Letter at 2. Federal law does not require an FFL to accept a
firearm permit as an alternate even if they are able to confirm the
permit's validity and that the permit is less than five years old.
[[Page 24438]]
II. Proposed Rule
This proposed rulemaking would amend the language of 27 CFR
478.102(d) regarding when a state's firearms-related permit meets the
requirements of 18 U.S.C. 922(t)(3) such that a NICS check does not
need to be conducted. This rule proposes to add the word ``unexpired''
in Sec. 478.102(d)(1) as a condition of a qualifying permit because,
under certain state law or in certain circumstances, some permits are
considered valid even after they have expired. However, expired permits
cannot be used as an alternative to conducting a NICS check under
federal firearms law. To address potential confusion, this rule
proposes to add the word ``unexpired'' after ``valid'' to clarify that
such permits must be both valid and unexpired.
This proposed rule would also clarify the information ATF considers
for a permit to qualify as an alternative to a NICS check. First, the
proposal would clarify when ATF considers a permit to be issued within
the previous five years. Specifically, ``lifetime'' permits and permits
nominally issued for more than five years may qualify as alternate
permits if the state's law requires a state official to verify or
reverify via NICS that the permit-holder is not prohibited from
possessing a firearm, or otherwise confirm that the permit-holder is
not prohibited by federal law from possessing a firearm, within the
previous five years and the government official complies with that
requirement. When those conditions are met, the license is effectively
reissued, in the same way as if the permit-holder had reapplied. For
example, Alabama issues a concealed carry lifetime permit and the
state's law requires that, ``[A]t least once every five years from the
date of issuance, each sheriff shall conduct a background check on each
individual with a lifetime carry permit issued within his or her county
. . . .'' Ala. Code 13A-11-75(h). These permits qualify because Alabama
law requires the state official to conduct a background check on a
five-year recurring basis.
Second, the proposed rule would define the phrase ``only after an
authorized government official has verified that the information
available to such official'' to mean that the state statute(s) provides
that an authorized government official verifies information available
to such official, to include a background check through NICS or
otherwise confirms that the permit-holder is not prohibited by federal
law from possessing a firearm, in order to determine whether the
applicant is prohibited from possessing firearms under federal, state,
or local law. In a near majority of instances, states issue qualifying
NICS alternate permits through a state criminal justice agency
(``CJA''). However, if a state issues permits through a non-CJA, there
may be difficulty directly accessing NICS because of FBI regulations,
which limit NICS access to ``criminal justice agencies in connection
with the issuance of a firearm-related . . . permit or license.'' 28
CFR 25.6(j)(1). Nevertheless, a non-CJA may still access relevant
criminal history information to conduct a qualifying background check
equivalent to a NICS check before issuing any such permits. For
instance, Florida's Department of Agriculture and Consumer Services
issues concealed weapons licenses for the state. Although the Florida
concealed weapons permit does not qualify as a NICS alternative permit
for other reasons,\6\ nevertheless a NICS background check is completed
because the Florida Department of Law Enforcement runs a NICS check on
behalf of Florida's Department of Agriculture and Consumer Services.
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\6\ Florida law provides for issuing a Concealed Weapon or
Firearm License to certain individuals without conducting a NICS
background check. See Fla. Stat. 790.06(5)(b), 790.06(6)(e), 790.061
(exempting law enforcement officers, correctional officers, or
correctional probation officers for one year after retirement, and
consular security officials of a qualifying foreign government, and
Florida judges and justices from the NICS background check process
prior to obtaining the license). Furthermore, NICS background checks
are not conducted prior to issuing a renewal license. See Fla. Stat.
790.06(11)(a).
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However, in the event that a non-CJA does not have the ability to
access NICS or their state's point of contact for NICS, this rule
proposes to provide an exception that the authorized government
official need only search and review all information otherwise
available to such official to determine if possession, acquisition, or
carrying of the firearm would be lawful. Additionally, the proposed
rule would provide that information otherwise available to the
government official does not need to include information that requires
extraordinary effort, expense, or means to obtain (e.g., sending an
investigator to go to a courthouse to research records). A misdemeanor
assault conviction, for example, could be disqualifying depending on
whether it was a crime of domestic violence. See 18 U.S.C. 922(g)(9).
But many criminal justice records specific to misdemeanor assault
convictions are often not complete enough to determine if there is a
qualifying relationship under federal law that would make the applicant
a prohibited possessor. Often additional research is required to
include supporting court documents that are not available in NICS or a
state's criminal history records. Therefore, this section would clarify
that government officials are not required to use or undertake
extraordinary effort, expense, or means when further research is
required when a NICS check (or its equivalent) is not available to
conduct a background check. They need only base their permitting
decisions on the information that is readily accessible to them--for
example, information readily accessible through NICS, state agencies or
databases, or state or local courts.
Third, the proposed rule would inform the public that the relevant
inquiry in determining whether a state permit is acceptable as an
alternative to a NICS check when acquiring a firearm is whether the
language of the state statute(s) conforms with the requirements under
18 U.S.C. 922(t)(3)(A)(ii). Specifically, the proposed amendments would
provide that when verifying whether an alternate permit qualifies under
18 U.S.C. 922(t), ATF considers the law of the state, state regulation,
any precedential judicial opinions, and any opinions of the executive
branch that are binding and have the force and effect of law. The
proposal clarifies that a permit that is erroneously granted does not,
by itself, establish the law of the state.
This provision is necessary to redress confusion about certain
permit audits. In the past, the federal government has audited states
to see whether they issued permits to prohibited persons. In response
to some audits (e.g., involving Alabama and Michigan), ATF withdrew
recognition of the states' permits as a valid NICS alternative because,
in part, licensing officials in those states had issued permits to
prohibited persons. But not recognizing permits as NICS alternatives on
this basis was not consistent with the Brady Act because the Act only
requires that ``the law of the State provides that such a permit is to
be issued only after an authorized government official has verified
that the information available to such official does not indicate that
possession of a firearm by such other person would be in violation of
law.'' 18 U.S.C. 922(t)(3)(A)(ii). The mere fact that permits may have
been erroneously granted by an authorized state official does not, by
itself, establish that ``the law of the state'' authorized permits to
be issued to prohibited persons. Nor does the Brady Act contemplate
that state officials will be perfect in issuing licenses. The NICS
system is itself imperfect; even after an exhaustive
[[Page 24439]]
search of records, NICS is unable to resolve about 3 to 5 percent of
background checks each year. State and local licensing officials will
occasionally have to issue licenses on less than perfect information,
despite running a comprehensive background check.
Fourth, the proposed rule would address circumstances in which
states offer multiple applying and issuing procedures to obtain firearm
permits (or licenses). In some jurisdictions, the same type of firearm
permit may be alternatively issued pursuant to a procedure that would
(or would not) qualify under 18 U.S.C. 922(t) as a NICS alternative
permit. For example, a state might exempt a law enforcement officer or
judge from the background check requirement when obtaining a concealed
weapons license. See, e.g., Fla. Stat. 790.06(5)(b); Del. Code Ann.
tit. 11 sec. 1448D (c)(1), (h); Md. Pub. Safety Code sec. 5-305(g)
(exempting employees of armored car companies). While the state-issued
permit for that law enforcement officer or judge would be valid under
state law for its dedicated purposes, it would not qualify as a NICS
alternate permit because the state law does not require the licensing
official to verify that the permit holder may lawfully possess a
firearm.
In these cases, the proposed amendments to the regulation make
clear that ATF will only recognize the subset of permits that meet the
requirements under Sec. 478.102(d), provided that those permits are
distinguishable from other permits that do not qualify. This formalizes
ATF's prior practice. In Alaska, for example, a person who wants his
concealed handgun permit to exempt him from the NICS background check
requirement must fill out a supplemental application form. Alaska will
mark that subset of concealed handgun permits as ``NICS Exempt.''
Although ATF does not recognize all Alaska concealed handgun permits as
Brady alternatives, ATF has recognized the subset labeled ``NICS
Exempt.'' See Alaska Stat. 18.65.700; ATF Open Letter to All Alaska
Federal Firearms Licensees (Oct. 17, 2005) (Rescinded).\7\ States that
do not conduct background checks on certain categories of individuals
could also separately label those permits (e.g., ``Not NICS Exempt'' or
``Judicial/Peace Officer Concealed Weapon License'').
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\7\ ATF, Open Letter to All Alaska Federal Firearms Licensees
(Oct., 17, 2005) (rescinded), <a href="https://www.atf.gov/file/84456/download">https://www.atf.gov/file/84456/download</a> [<a href="https://perma.cc/SQ4F-MBH4">https://perma.cc/SQ4F-MBH4</a>].
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The proposed rule would also amend the section heading of 27 CFR
478.102 to remove ``on or after November 30, 1998'' because that was
more than 25 years ago and the date trigger is no longer needed.
Finally, the proposed rule would add a paragraph heading to Sec.
478.102(e) to make it consistent with the other paragraphs and to be in
accord with CFR drafting requirements.
III. Statutory and Executive Order Review
A. Executive Orders 12866 and 13563
Executive Order 12866 (Regulatory Planning and Review) directs
agencies to assess the costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits.
Executive Order 13563 (Improving Regulation and Regulatory Review)
emphasizes the importance of agencies quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting public
flexibility.
This rule proposes to amend 27 CFR 478.102(d) to clarify what
information ATF considers in assessing whether a state's firearms
permit qualifies as an alternative to the NICS background check
requirement and what information an authorized government official is
to consider when verifying that a given transferee possessing a firearm
does not violate law. These clarifications will reduce confusion that
has occurred in recent years due to different state processes, and they
do not impose any costs or quantitative benefits.
The Office of Management and Budget (``OMB'') has determined that
this proposed rule would not be a ``significant regulatory action''
under Executive Order 12866. Therefore, it did not review this rule.
B. Executive Order 14192
Executive Order 14192 (Unleashing Prosperity Through Deregulation)
requires an agency, unless prohibited by law, to identify at least ten
existing regulations to be repealed or revised when the agency publicly
proposes for notice and comment or otherwise promulgates a new
regulation that qualifies as an Executive Order 14192 regulatory action
(defined in OMB Memorandum M-25-20 as a final significant regulatory
action as defined in section 3(f) of Executive Order 12866 that imposes
total costs greater than zero). In furtherance of this requirement,
section 3(c) of Executive Order 14192 requires that any new incremental
costs associated with such new regulations must, to the extent
permitted by law, also be offset by eliminating existing costs
associated with at least ten prior regulations. However, this proposed
rule would not be an Executive Order 14192 regulatory action because it
is not a significant regulatory action as defined by Executive Order
12866 and it would not impose total costs greater than zero. This rule
would clarify what information ATF considers in assessing whether a
state's firearms permit qualifies as an alternative to the NICS
background check requirement and what information an authorized
government official is to consider when verifying that a given
transferee possessing a firearm does not violate law. In addition, ATF
expects this rule, if finalized as proposed, to qualify as an Executive
Order 14192 deregulatory action (defined OMB Memorandum M-25-20 as a
final action that imposes total costs less than zero).
C. Executive Order 14294
Executive Order 14294 (Fighting Overcriminalization in Federal
Regulations) requires agencies promulgating regulations with criminal
regulatory offenses potentially subject to criminal enforcement to
explicitly describe the conduct subject to criminal enforcement, the
authorizing statutes, and the mens rea standard applicable to each
element of those offenses. This proposed rule would not create a
criminal regulatory offense and is thus exempt from Executive Order
14294 requirements.
D. Executive Order 13132
This proposed rule will not have substantial direct effects on the
states, the relationship between the federal government and the states,
or the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132 (Federalism), the Director has determined that
this proposed rule would not impose substantial direct compliance costs
on state and local governments, preempt state law, or meaningfully
implicate federalism. It thus does not warrant preparing a federalism
summary impact statement.
E. Executive Order 12988
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice
Reform).
F. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601-612,
agencies are required to conduct a regulatory flexibility analysis of
any proposed rule subject to notice-and-comment
[[Page 24440]]
rulemaking requirements unless the agency head certifies, including a
statement of factual basis, that the proposed rule would not have a
significant economic impact on a substantial number of small entities.
Small entities include certain small businesses, small not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations of less than 50,000.
The Director certifies, after consideration, that this proposed
rule would not have a significant economic impact on a substantial
number of small entities. This proposed rule merely clarifies
information so as to reduce confusion that has occurred in recent years
due to different state processes. This rule is deregulatory and would
not impose any additional costs.
G. Unfunded Mandates Reform Act of 1995
This proposed rule does not include a federal mandate that might
result in the expenditure by state, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
one year, and it will not significantly or uniquely affect small
governments. Therefore, the ATF has determined that no actions are
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
H. Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (``PRA''), 44 U.S.C.
3501-3521, agencies are required to submit to OMB, for review and
approval, any information collection requirements a rule creates or any
impacts it has on existing information collections. An information
collection includes any reporting, record-keeping, monitoring, posting,
labeling, or other similar actions an agency requires of the public.
See 5 CFR 1320.3(c). This proposed rule involves one existing
information collection under the PRA. The information collection
associated with this proposed rule is OMB control number 1140-0020:
Firearms Transaction Record, which includes ATF Form 5300.9 (``Form
4473''). Form 4473 is completed when an FFL transfers a firearm to a
non-licensee. Although this rule is associated with the existing
information collection, the proposed changes would not add or change
the burden or requirements imposed on the respondent beyond existing,
OMB-approved requirements.
I. Congressional Review Act
This proposed rule would not be a major rule as defined by the
Congressional Review Act, 5 U.S.C. 804.
IV. Public Participation
A. Comments Sought
ATF requests comments on the proposed rule from all interested
persons. ATF specifically requests comments on the clarity of this
proposed rule and how it may be made easier to understand. In addition,
ATF requests comments on the costs or benefits of the proposed rule and
on the appropriate methodology and data for calculating those costs and
benefits.
All comments must reference this document's RIN 1140-AA85 and, if
handwritten, must be legible. If submitting by mail, you must also
include your complete first and last name and contact information. If
submitting a comment through the federal e-rulemaking portal, as
described in section IV.C of this preamble, you should carefully review
and follow the website's instructions on submitting comments. Whether
you submit comments online or by mail, ATF will post them online. If
submitting online as an individual, any information you provide in the
online fields for city, state, zip code, and phone will not be publicly
viewable when ATF publishes the comment on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
However, if you include such personally identifiable information
(``PII'') in the body of your online comment, it may be posted and
viewable online. Similarly, if you submit a written comment with PII in
the body of the comment, it may be posted and viewable online.
Therefore, all commenters should review section IV.B of this preamble,
``Confidentiality,'' regarding how to submit PII if you do not want it
published online. ATF may not consider, or respond to, comments that do
not meet these requirements or comments containing excessive profanity.
ATF will retain comments containing excessive profanity as part of this
rulemaking's administrative record but will not publish such documents
on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. ATF will treat all comments as
originals and will not acknowledge receipt of comments. In addition, if
ATF cannot read your comment due to handwriting or technical
difficulties and cannot contact you for clarification, ATF may not be
able to consider your comment.
ATF will carefully consider all comments, as appropriate, received
on or before the closing date.
B. Confidentiality
ATF will make all comments meeting the requirements of this
section, whether submitted electronically or on paper, except as
provided below, available for public viewing on the internet through
the federal e-rulemaking portal, and subject to the Freedom of
Information Act (5 U.S.C. 552). Commenters who submit by mail and who
do not want their name or other PII posted on the internet should
submit their comments with a separate cover sheet containing their PII.
The separate cover sheet should be marked with ``CUI//PRVCY'' at the
top to identify it as protected PII under the Privacy Act. Both the
cover sheet and comment must reference this RIN 1140-AA85. For comments
submitted by mail, information contained on the cover sheet will not
appear when posted on the internet, but any PII that appears within the
body of a comment will not be redacted by ATF and may appear on the
internet. Similarly, commenters who submit through the federal e-
rulemaking portal and who do not want any of their PII posted on the
internet should omit such PII from the body of their comment and in any
uploaded attachments. However, PII entered into the online fields
designated for name, email, and other contact information will not be
posted or viewable online.
A commenter may submit to ATF information identified as proprietary
or confidential business information by mail. To request that ATF
handle this information as controlled unclassified information
(``CUI''), the commenter must place any portion of a comment that is
proprietary or confidential business information under law or
regulation on pages separate from the balance of the comment, with each
page prominently marked ``CUI/PROPIN'' at the top of the page.
ATF will not make proprietary or confidential business information
submitted in compliance with these instructions available when
disclosing the comments that it receives but will disclose that the
commenter provided proprietary or confidential business information
that ATF is holding in a separate file to which the public does not
have access. If ATF receives a request to examine or copy this
information, it will treat it as any other request under the Freedom of
Information Act (5 U.S.C. 552). In addition, ATF will disclose such
proprietary or confidential business information to the extent required
by other legal process.
[[Page 24441]]
C. Submitting Comments
Submit comments using either of the two methods described below
(but do not submit the same comment multiple times or by more than one
method). Hand-delivered comments will not be accepted.
<bullet> Federal e-rulemaking portal: ATF recommends that you
submit your comments to ATF via the federal e-rulemaking portal at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> and follow the instructions. Comments will
be posted within a few days of being submitted. However, if large
volumes of comments are being processed simultaneously, your comment
may not be viewable for up to several weeks. Please keep the comment
tracking number that is provided after you have successfully uploaded
your comment.
<bullet> Mail: Send written comments to the address listed in the
ADDRESSES section of this document. Written comments must appear in
minimum 12-point font size, include the commenter's first and last name
and full mailing address, and may be of any length. See also section
IV.B of this preamble, ``Confidentiality.''
D. Request for Hearing
Any interested person who desires an opportunity to comment orally
at a public hearing should submit his or her request, in writing, to
the Director within the 90-day comment period. The Director, however,
reserves the right to determine, in light of all circumstances, whether
a public hearing is necessary.
Disclosure
Copies of this proposed rule and the comments received in response
to it are available through the federal e-rulemaking portal, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (search for RIN 1140-AA85).
List of Subjects in 27 CFR Part 478
Administrative practice and procedure, Arms and munitions, Exports,
Freight, Imports, Intergovernmental relations, Law enforcement
officers, Military personnel, Penalties, Reporting and recordkeeping
requirements, Research, Seizures and forfeitures, Transportation.
For the reasons discussed in the preamble, ATF proposes to amend 27
CFR part 478 as follows:
PART 478--COMMERCE IN FIREARMS AND AMMUNITION
0
1. The authority citation for 27 CFR part 478 continues to read as
follows:
Authority: 5 U.S.C. 552(a); 18 U.S.C. 847, 921-931; 44 U.S.C.
3504(h).
0
2. Amend Sec. 478.102 by:
0
a. Revising the section heading and paragraph (d); and
0
b. Adding a new paragraph heading to paragraph (e) and a new paragraph
(f).
The revisions and additions read as follows:
Sec. 478.102 Firearms sales or deliveries.
* * * * *
(d) Exceptions to NICS check. The provisions of paragraph (a) of
this section do not apply if--
(1) The transferee has presented to the licensee a valid and
unexpired permit (or license) that--
(i) Allows the transferee to possess, acquire, or carry a firearm;
(ii) Was issued not more than five years earlier by the state in
which the transfer is to take place; and
(iii) The law of the state provides that such a permit is to be
issued only after an authorized government official has verified that
the information available to such official does not indicate that the
transferee possessing the firearm would be in violation of any
applicable law.
(2) The firearm is subject to the provisions of the National
Firearms Act and has been approved for transfer under 27 CFR part 479;
or
(3) The licensee has applied for certification, in accordance with
the provisions of Sec. 478.150, and the Director has certified that
compliance with paragraph (a)(1) of this section is impracticable.
(e) Documenting an exception to NICS check. * * *
(f) Clarifications on exceptions to NICS check. For purposes of
paragraph (d) of this section:
(1) A permit (including a nominally ``lifetime'' permit or a permit
nominally issued for more than five years) is deemed issued within the
previous five years if:
(i) The law of the state requires that an authorized government
official verify or reverify the information described in paragraph
(d)(1)(iii) within the previous five years;
(ii) The authorized government official issuing the permit has
complied with that legal requirement; and
(iii) The person possessing the qualifying permit presents
documentation to a licensee prior to a firearm transfer that is from
the authorized issuing government authority and establishes the
permit's verification or reverification date.
(2) The phrase in paragraph (d)(1)(iii) of this section, ``only
after an authorized government official has verified that the
information available to such official,'' means that the state law
provides that an official reviews information they received as a part
of a National Instant Criminal Background Check System (NICS) check, or
equivalent check, and determines, based on the information received and
any other information readily accessible to that official, that the
transferee possessing firearms would not be a violation of law, except
that--
(i) If the Federal Bureau of Investigation does not make NICS
available to the authorized government official who issues the license,
the official verifies all the information that is otherwise available
to the official; and
(ii) ``Information available to such official'' does not include
information that can be obtained only through extraordinary effort,
expense, or means.
(3) In assessing whether a state firearms permit qualifies under
the exception codified at 18 U.S.C. 922(t)(3), ATF considers the law of
the state, which includes state statutes and common law, state
regulations having the force and effect of law, precedential judicial
opinions, and any opinions of the executive branch that are binding and
have the force and effect of law. The mere fact that permits may have
been erroneously granted does not, by itself, establish the law of the
state.
(4) Where a state has multiple procedures to issue a permit, only
some of which qualify under 18 U.S.C. 922(t), a person may use a permit
issued pursuant to a procedure qualifying under 18 U.S.C. 922(t),
provided the qualifying permit has marks or labeling sufficient to
distinguish it from other permits issued pursuant to non-qualifying
procedures.
Robert Cekada,
Director.
[FR Doc. 2026-08918 Filed 5-5-26; 8:45 am]
BILLING CODE 4410-FY-P
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</html>Indexed from Federal Register on May 6, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.