Rule2026-08931
Conforming Change for Approving a Making Application
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
Effective
May 6, 2026
Issuing agencies
Justice DepartmentAlcohol, Tobacco, Firearms, and Explosives Bureau
Abstract
The Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") is amending Department of Justice ("Department") regulations to require that a National Instant Criminal Background Check System background check be performed as part of the approval process to make a National Firearms Act ("NFA") firearm. ATF already conducts such background checks as part of its processing and this amendment to the regulation simply ensures that the regulations addressing NFA processes are consistent with the statutory requirements.
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)]
[Rules and Regulations]
[Pages 24362-24364]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-08931]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 479
[ATF No. 2025R-21F]
RIN 1140-AA79
Conforming Change for Approving a Making Application
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Department of Justice.
ACTION: Final rule.
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SUMMARY: The Bureau of Alcohol, Tobacco, Firearms, and Explosives
(``ATF'') is amending Department of Justice (``Department'')
regulations to require that a National Instant Criminal Background
Check System background check be performed as part of the approval
process to make a National Firearms Act (``NFA'') firearm. ATF already
conducts such background checks as part of its processing and this
amendment to the regulation simply ensures that the regulations
addressing NFA processes are consistent with the statutory
requirements.
DATES: This rule is effective May 6, 2026.
FOR FURTHER INFORMATION CONTACT: Office of Regulatory Affairs, by email
at <a href="/cdn-cgi/l/email-protection#501f0211103124367e373f26"><span class="__cf_email__" data-cfemail="5d120f1c1d3c293b733a322b">[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 National
Firearms Act (``NFA''), as amended, 26 U.S.C. chapter 53.\1\ Congress
and the Attorney General have delegated the responsibility for
administering and enforcing the NFA 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 NFA in 27 CFR part 479.
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\1\ Some NFA 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 final 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
NFA, Gun Control Act, 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 regulations in 27 CFR part 479 contain procedural and
substantive requirements for importing, making, exporting,
transferring, taxing, identifying, registering, and dealing in machine
guns, destructive devices, and certain other firearms. The NFA applies
to machine guns, shotguns having a barrel or barrels of less than 18
inches in length, rifles having a barrel or barrels of less than 16
inches in length, weapons made from a rifle with an overall length of
less than 26 inches or a barrel or barrels of less than 16 inches in
length, weapons made from a shotgun with an overall length of less than
26 inches or a barrel or barrels of less than 18 inches in length,
silencers, destructive devices, and any other weapon as defined by the
NFA (``NFA firearm''). 26 U.S.C. 5845(a).
Pursuant to 26 U.S.C. 5822(e), no person can make an NFA firearm
unless they have obtained the Attorney General's approval to make and
register the firearm and the application form shows such approval.
Applications must be denied if making or possessing the firearm would
place the person making the firearm in violation of law.
The regulations that implement 26 U.S.C. 5822(e) are found at 27
CFR 479.64 (``Procedure for approval of application'') and 479.65
(``Denial of application''). Section 479.64 sets forth the process for
ATF's approval of the application and makes clear that the maker cannot
make the firearm until the application has been approved and returned
to the applicant with the approved stamp. The regulation at 27 CFR
479.65 includes the requirement that an application must be denied if
making or possessing the firearm would place the maker in violation of
law. However, these provisions contain no explicit guidance on how
applications to make an NFA firearm (i.e., ATF Form 5320.1, Application
to Make and Register a Firearm (``Form 1'')) are to be evaluated to
ensure that, pursuant to the statute, making or possessing the firearm
would not place the person making the firearm in violation of law.
Another NFA regulation in 27 CFR part 479 that implements
application processing procedures contains explicit guidance that is
absent from 27 CFR 479.64. The statute at 26 U.S.C. 5812, which
pertains to transferring an NFA firearm, states that an application to
transfer an NFA firearm ``shall be denied if the transfer, receipt, or
possession of the firearm would place the transferee in violation of
law.'' The implementing regulation for 26 U.S.C. 5812 states, ``[i]n
addition to any other records checks that may be conducted to determine
whether the transfer, receipt, or possession of a firearm would place
the transferee in violation of law, the Director shall contact the
National Instant Criminal Background Check System.'' 27 CFR 479.86.
While both statutory provisions (26 U.S.C. 5812 and 5822) require
that the respective applications to either make or transfer an NFA
firearm be denied if making or transferring the firearm would place the
individual in violation of law, currently it is only 27 CFR 479.86 that
explicitly states that a National Instant Criminal Background Check
System (``NICS'') background check must be performed as part of the
application process, whereas 27 CFR 479.64 contains no such explicit
requirement. Nevertheless, for both making and transfer applications,
ATF currently contacts NICS to ensure individuals are not prohibited
under the law from possessing a firearm.
II. Final Rule
To reflect current practice and track relevant language in Sec.
479.86, this rule amends Sec. 479.64 to require that a NICS background
check be conducted by ATF as part of processing Form 1 applications to
make an NFA firearm. This change is necessary to ensure that the Form 1
approval process meets the statutory requirement at 26 U.S.C. 5822 and
is consistent across ATF regulations.
Section 479.86 currently provides: ``An application, Form 4
(Firearms), to transfer a firearm shall be denied if the transfer,
receipt, or possession of a firearm would place the transferee in
violation of law. In addition to any other records checks that may be
conducted to
[[Page 24363]]
determine whether the transfer, receipt, or possession of a firearm
would place the transferee in violation of law, the Director shall
contact the [NICS].'' Accordingly, ATF is simply adding to 27 CFR
479.64 language that parallels the language in Sec. 479.86 used for
transfer applications. The added language makes clear that an
application to make a firearm, Form 1, must be denied if making or
possessing the firearm would place the maker in violation of law, and
that to make this determination ATF must contact NICS.
This final rule also makes a technical edit to correct the
authority citation line for 27 CFR part 479 to read as: 26 U.S.C. 5801-
5812; 26 U.S.C. 7801; 26 U.S.C. 7805, and makes minor technical edits
to Sec. 479.64 for plain writing purposes--primarily, breaking the
long paragraph into smaller ones, updating form references, and
removing passive voice.
III. Statutory and Executive Order Review
A. Administrative Procedure Act
This final rule relates to a matter of agency management or
personnel and is a rule of agency organization, procedure, or practice.
This rule does not alter any obligations on the public and simply adds
to ATF's regulations ATF's longstanding practice of running a NICS
background check to determine whether an applicant's making or
possession of an NFA firearm would place the maker in violation of the
law. Accordingly, this rule is exempt from the usual requirements of
prior notice-and-comment and a 30-day delay in effective date. See 5
U.S.C. 553(a)(2), (b)(A), (d).
B. 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 final rule is amending 27 CFR 479.64 to require that ATF
conduct a NICS background check as part of processing Form 1, the
application to make an NFA firearm, to simply make the agency's
regulations consistent with the current process. The Office of
Management and Budget (``OMB'') has determined that this rule is not a
``significant regulatory action'' under Executive Order 12866.
Therefore, it did not review this rule. There are no changes in ATF
standards or compliance requirements; therefore, ATF anticipates no
costs or benefits accruing from this rule.
C. 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 under section 3(f) of Executive Order 12866 that imposes 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 rule is not an Executive
Order 14192 regulatory action because it is not a significant
regulatory action as defined by Executive Order 12866 and it does not
impose total costs greater than zero.
D. 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 final rule does not create a criminal
regulatory offense and is thus exempt from Executive Order 14294
requirements.
E. Executive Order 13132
This final 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 final rule does 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.
F. Executive Order 12988
This final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice
Reform).
G. 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 rule subject to notice-and-comment rulemaking requirements unless
the agency head certifies, including a statement of the factual basis,
that the rule will 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.
A regulatory flexibility analysis is not necessary because this
rule is not required to undergo notice-and-comment rulemaking as
described in section III.A of this preamble. Nevertheless, the Director
certifies, after consideration, that this rule will not have a
significant economic impact on a substantial number of small entities
because it is only including in the regulations the existing practice
of running a NICS background check on applicants who submit a Form 1 to
make an NFA firearm.
H. Unfunded Mandates Reform Act of 1995
This final 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, ATF has determined that no actions are
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
I. 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 final rule involves one existing information
collection under the PRA, which is
[[Page 24364]]
OMB control number 1140-0011: Application to Make and Register NFA
Firearm, which includes ATF Form 5320.1 (``Form 1''). However, because
this rule changes only a requirement for the agency, it will not have
an impact on this existing information collection.
J. Congressional Review Act
This rule is not a major rule as defined by the Congressional
Review Act, 5 U.S.C. 804.
List of Subjects in 27 CFR Part 479
Administrative practice and procedure, Arms and munitions, Exports,
Imports, Military personnel, Penalties, Reporting and recordkeeping
requirements, Seizures and forfeitures, Taxes, Transportation
For the reasons discussed in the preamble, ATF amends 27 CFR part
479 as follows:
PART 479--MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN OTHER
FIREARMS
0
1. Revise the authority citation for 27 CFR part 479 to read as
follows:
Authority: 26 U.S.C. 5801-5812; 26 U.S.C. 7801; 26 U.S.C.
7805.Inserting required closing tag for E.
0
2. Revise Sec. 479.64 to read as follows:
Sec. 479.64 Action on making application.
(a) A person who intends to make a firearm must submit the
application to make a firearm, Form 1, directly, in duplicate, to the
Director in accordance with the instructions on the form. The Director
will consider the application for approval or disapproval. If the
application is approved, the Director will return the original to the
applicant and retain the duplicate.
(b) In addition to any other records checks the Director may
conduct to determine whether the applicant would be violating the law
by making or possessing a firearm, the Director must contact the
National Instant Criminal Background Check System.
(c) Upon receiving the approved application, the maker may make the
described firearm. The maker must not, under any circumstances, make
the firearm until the Director has approved and returned the
application with the National Firearms Act stamp affixed.
(d) If the Director disapproves the application, the Director will
return to the applicant the original Form 1 and the remittance
submitted by the applicant and will include on the form the reason for
disapproving the application.
Robert Cekada,
Director.
[FR Doc. 2026-08931 Filed 5-5-26; 8:45 am]
BILLING CODE 4410-FY-P
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