Proposed Rule2026-09159
Defining “Willfully” for Firearms Violations
Primary source
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Published
May 8, 2026
Issuing agencies
Justice DepartmentAlcohol, Tobacco, Firearms, and Explosives Bureau
Abstract
The Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") proposes to define the term "willfully" in Department of Justice ("Department") regulations that implement the Gun Control Act.
Full Text
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<title>Federal Register, Volume 91 Issue 89 (Friday, May 8, 2026)</title>
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[Federal Register Volume 91, Number 89 (Friday, May 8, 2026)]
[Proposed Rules]
[Pages 25201-25209]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-09159]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 478
[Docket No. ATF-2026-0265 ATF 2025R-47P]
RIN 1140-AA88
Defining ``Willfully'' for Firearms Violations
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 to define the term ``willfully'' in Department of
Justice (``Department'') regulations that implement the Gun Control
Act.
DATES: Comments must be submitted in writing, and must be submitted on
or before (or, if mailed, must be postmarked on or before) August 6,
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-AA88, by
either of the following methods--
<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-AA88.
Instructions: All submissions must include the agency name and
number (RIN 1140-AA88) 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 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#4d021f0c0d2c392b632a223b"><span class="__cf_email__" data-cfemail="dd928f9c9dbca9bbf3bab2ab">[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:
[[Page 25202]]
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 the permanent import
of defense articles and defense services and the Contraband
Cigarette Trafficking Act.
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Under 18 U.S.C. 923(e), ATF may revoke any license it has issued if
the licensee has willfully violated any provision of the GCA or any
rule or regulation prescribed by the Attorney General to implement the
GCA's provisions. ATF has implemented section 923(e) in 27 CFR
478.73(a), which provides, ``Whenever the Director has reason to
believe that a licensee has willfully violated any provision of the
[GCA] or this part [478], a notice of revocation of the license, ATF
Form 4500, may be issued.'' Neither the GCA nor the regulations define
``willfully.'' Without a statutory or regulatory definition, courts
have created their own definitions, which has resulted in different
definitions from court to court, as well as different definitions
applied in criminal and civil proceedings.
II. Proposed rule
A. Discussion
Although the Government has previously argued that unintentional
violations may be ``willful'' under the GCA's civil revocation
proceedings, ATF has decided that its previous position does not
represent the best reading of the statute. ATF has re-examined the text
and structure of the GCA. Both strongly suggest that Congress intended
the same definition of ``willfully'' to apply to the same prohibited
conduct in the same Act whether the consequences are criminal or civil.
Civil proceedings for revoking a firearms license are governed by
18 U.S.C. 923. In particular, Congress has provided that the Attorney
General may revoke a license if the license holder ``has willfully
violated any provision of this chapter.'' 18 U.S.C. 923(e). Criminal
penalties for violating the GCA are governed by 18 U.S.C. 924. That
statute provides that whoever ``willfully violates any . . . provision
of this chapter [other than certain enumerated exceptions] shall be
fined under this title, imprisoned not more than five years, or both.''
18 U.S.C. 924(a)(1)(D).
The Supreme Court has already interpreted 18 U.S.C. 924(a)(1)(D)'s
``willfully violates any other provision of this chapter'' phrase to
require that the defendant deliberately violate a known legal duty.
Bryan v. United States, 524 U.S. 184 (1998). In Bryan, the Supreme
Court distinguished the culpability required under ``willful'' and
``knowing'' violations of the GCA. It held that ``willful'' violations
of the GCA require a higher, more culpable mens rea than ``knowing''
violations. Specifically, ``to establish a `willful' violation of a
statute, the Government must prove that the defendant acted with
knowledge that his conduct was unlawful.'' Id. at 191-92. By contrast,
the culpability required of ``knowing'' violations is ``mere[] . . .
proof of knowledge of the facts that constitute the offense.'' Id. at
193.
Section 923(e)'s virtually identical phrase--``willfully violated
any provision of this chapter''--should be given the same meaning.
``The normal rule of statutory construction assumes that identical
words used in different parts of the same act are intended to have the
same meaning.'' Sorenson v. Sec'y of Treasury, 475 U.S. 851, 860
(1986). Especially so here, where both section 923(e) and 924(a)(1)(D)
refer to the same body of law--``any . . . provision'' of the GCA--and
have the same ``willfully'' mens rea requirement without any additional
qualifying language.\3\
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\3\ To be sure, the criminal provision narrows the body of law
subject to criminal punishment. But that is not the same thing as
adding additional qualifications to ``willfully'' violating ``any .
. . provision'' of the GCA. 18 U.S.C. 924(a)(1)(D).
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Giving ``willfully'' the same meaning in section 923(e) as in
section 924(a)(1)(D) is ``doubly appropriate here,'' because that word
was ``inserted into [both sections] at the same time.'' Powerex Corp.
v. Reliant Energy Servs., 551 U.S. 224, 232 (2007). Congress has
enacted and amended these provisions of the GCA in lockstep with each
other. In June 1968, Congress enacted the original GCA, providing in
section 924 that ``[w]hoever violates any provision of this chapter . .
. shall be fined not more than $5,000 or imprisoned not more than five
years, or both.'' Public Law 90-351, 82 Stat. 233 (Jun. 19, 1968). A
few short months later, Congress allowed for license revocation under
section 923(e) where the license holder ``has violated any provision of
this chapter.'' Public Law 90-618, 82 Stat. 1222 (Oct. 22, 1968). And
in May 1986, Congress passed the Firearms Owners' Protection Act
(``FOPA''), which amended both sections 923(e) and 924(a)(1)(D) to what
is substantially their form today by adding the ``willfully''
requirement. Public Law 99-308, 100 Stat. 453, 456 (May 19, 1986).
It makes little difference that section 923 refers to a civil
penalty--revocation of a license--while section 924 concerns criminal
penalties. It is true that the holding in Bryan was based, in part, on
the fact that section 924 used the term ``willfully'' in ``the criminal
context.'' Bryan, 524 U.S. at 191-92. But it is well settled that a
statute with ``both criminal and noncriminal applications'' should
still be interpreted consistently across both. See Leocal v. Ashcroft,
543 U.S. 1, 11-12 n.8 (2004); accord Clark v. Martinez, 543 U.S. 371,
380-81 (2005). The same should apply to identical statutory phrases,
enacted at the same time and in the same Act.
Examining the structure of the GCA confirms this reading. Section
923(f)(4) provides that ``[i]f criminal proceedings are instituted
against a licensee alleging any violation of this chapter or of rules
or regulations prescribed under this chapter, and the licensee is
acquitted of such charges, or such proceedings are terminated, other
than upon motion of the Government before trial upon such charges, the
Attorney General shall be absolutely barred from denying or revoking
any license granted under this chapter where such denial or revocation
is based in whole or in part on the facts which form the basis of such
criminal charges.'' Issue preclusion from a criminal acquittal to a
license proceeding would only make sense if the GCA's criminal
definition of ``willfully'' and its civil definition of ``willfully''
carried the same meaning. It would not make sense if the GCA's criminal
definition of ``willfully'' narrowly included only intentional
violations of a known legal duty while
[[Page 25203]]
its civil definition broadly included unintentional conduct that showed
a plain indifference.
Statutory purpose confirms that section 923(e)'s ``willfulness''
requirement refers to a deliberate violation of a known legal duty. See
Wooden v. United States, 595 U.S. 360, 378 (2022). In the GCA, Congress
initially created an anomalous situation: no mens rea was explicitly
adopted for license revocations but the Secretary of the Treasury was
required to issue federal firearms licenses unless the applicant had
previously willfully violated the GCA. See Rich v. United States, 383
F. Supp. 797, 800 (S.D. Ohio 1974). Congress resolved the ambiguity in
1986 when it passed FOPA. Congress added ``willfully'' ``to correct
existing firearms statutes and enforcement policies'' and protect ``the
rights of citizens to keep and bear arms under the second amendment to
the United States Constitution.'' Public Law 99-308; 100 Stat. 449.
Increasing the culpability required to establish violations of the GCA,
thus, aimed to curb abusive enforcement practices and ensure licenses
were not revoked for inadvertent errors or technical mistakes. ATF
believes that it is unlikely that Congress intended ``willfully'' to
defeat FOPA's impetus.\4\
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\4\ See S. Rep. No. 98-583 at 14 (1984).
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Even before the 1986 amendments, at least one district court agreed
that the criminal definition of ``willfulness'' applied to license
revocation proceedings. In Rich v. United States, the Southern District
of Ohio explained that applying the criminal definition of
``willfully'' would ``further the protective concern Congress
intended'' to not ``impose undue or unnecessary restrictions upon
firearms transactions.'' See Rich, 383 F. Supp. at 800-01. And if that
were true under the original GCA, the argument would hold a fortiori
given Congress's concerns in enacting FOPA.
Yet the circuit courts have incorrectly cast this interpretation
aside. At least nine circuits have held that criminal penalties
resulting from ``willfully'' violating the GCA require a more culpable
mind than license revocations resulting from ``willfully'' violating
the GCA. According to those courts, the same conduct, under the same
Act, with the same mens rea requirements, could require less
culpability when revoking a license than imposing criminal penalties.
Without anything in the GCA's text suggesting that ``willfully'' means
one thing in one section and another thing in another section, the
courts defined ``willfully'' differently based on nothing other than
the civil or criminal nature of the consequences. Six of the nine
circuits specifically have concluded that the required culpability for
license revocation is ``deliberate, knowing, or reckless.'' \5\ All
nine of the circuits have held that ``willfulness'' for license
revocation occurs ``where the licensee knew of his legal obligation and
purposefully disregarded or was plainly indifferent to the
requirements.'' \6\
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\5\ Gen. Store, Inc. v. Van Loan, 560 F.3d 920, 924 (9th Cir.
2009) (quoting Armalite Inc. v. Lambert, 544 F.3d 644, 647 (6th Cir.
2008)) (citing RSM, Inc. v. Herbert, 466 F.3d 316, 321 (4th Cir.
2006); Willingham Sports, Inc. v. ATF, 415 F.3d 1274, 1277 (11th
Cir. 2005); Stein's Inc. v. Blumenthal, 649 F.2d 463, 467 (7th Cir.
1980); Lewin v. Blumenthal, 590 F.2d 268, 269 (8th Cir. 1979)).
\6\ Simpson v. Att'y Gen., 913 F.3d 110, 114 (3d Cir. 2019)
(citing Borchardt Rifle Corp. v. Cook, 684 F.3d 1037, 1042 (10th
Cir. 2012)); Fairmont Cash Mgmt., L.L.C. v. James, 858 F.3d 356, 362
(5th Cir. 2017); Armalite, 544 F.3d at 647; RSM, 466 F.3d at 317;
Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492, 497 (7th Cir.
2006); Willingham Sports, 415 F.3d at 1277; Perri v. ATF, 637 F.2d
1332, 1336 (9th Cir. 1981); Lewin, 590 F.2d at 269.
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These circuit courts' notion that the civil or criminal
consequences flowing from a statute's violation can change the
culpability required of the same mens rea, in the same Act, that
applies to violations of the same body of law rests on one case, Safeco
Insurance Company of America v. Burr, 551 U.S. 47, 57 (2007).
Safeco, though, is not entirely apt. In Safeco, the Court
considered the ``willfulness'' standard under the Fair Credit Reporting
Act (``FCRA'') and focused on context-dependent levels of culpability
meant by ``willfulness.'' The Court concluded that to give effect to
all the other mens rea requirements in the FCRA, mere reckless
disregard of the FCRA's requirements was sufficiently ``willful.''
Never in Safeco, however, did the Court evaluate the level of
culpability required of the same mens rea, in the same Act, applied to
the same underlying conduct based solely on the civil or criminal
nature of the consequences. In fact, the Court determined the
culpability required to be ``willful,'' 15 U.S.C. 1681n(a), relative to
the level of culpability required of negligence, id. 1681o(a),
knowledge, id. 1681n(a)(1)(B), and ``knowingly and willfully,'' id.
1681q, 1681r. The Court noted that ``willful,'' in that statute, must
have a lower level of culpability than ``knowing'' because the statute
imposes additional statutory damages if a ``willful'' violation was
also done ``knowingly.'' That context shows that ``knowing violations
are sensibly understood as a more serious subcategory of willful
ones.'' Safeco, 551 U.S. at 59.
Put another way, for ``knowing'' to have any meaning, it must be
possible under the statute to willfully, but not knowingly, violate the
statute. Same thing for negligence. If ``willfully'' included the
culpability amounting to ``negligence'' then all of 15 U.S.C. 1681o(a)
would be surplusage because all negligent conduct would be subsumed
under willfully. Safeco also distinguished criminal punishment. For
criminal punishment, one must act ``knowingly and willfully''--paired
modifiers that heighten the culpability required relative to
``willfully'' used in the same Act on its own. The culmination of those
distinctions was Safeco's commonsense holding: For every mens rea in
the act to have meaning, ``willfulness'' must allow for culpability
that is less than ``knowing'' and ``knowingly and willfully,'' but more
than ``negligent.''
The GCA's text is materially different from the FCRA's. Unlike the
FCRA, the GCA uses ``willfully,'' without qualification, to describe
the culpability required for violating the same body of law that
amounts to both a criminal and civil violation. In the FCRA,
``willfully'' is reserved only for civil violations, while another mens
rea, like ``knowingly and willfully,'' is required for criminal
violations or consequences of greater severity. The GCA's text has none
of the attributes of the FCRA's text that compelled the Supreme Court
in Safeco to interpret ``willfully'' to require less culpability than
knowledge but more than negligence. The GCA does not pair ``knowingly
and willfully.'' ``Willfully'' is consistently used throughout the GCA
for both criminal punishments and license revocations, and the word is
meant to require more culpability than ``knowingly.'' Nowhere does the
GCA's text distinguish between what is willful for criminal punishment,
but not for license revocation. Moreover, the Supreme Court has already
interpreted ``willfully'' in the context of criminal punishment under
the GCA to require a heightened culpability of one ``act[ing] with
knowledge that his conduct was unlawful.'' Bryan, 524 U.S. at 191-192.
Identical words used in the same Act, especially when referring to
the same underlying conduct (``violate[] any . . . provision'' of the
GCA), must bear the same meaning.\7\ ``Willfully'' cannot
[[Page 25204]]
sometimes include ``knowingly,'' but sometimes not. ``Willfully'' must
have a consistent meaning when it is used in the same Act in reference
to the same body of law. And that meaning must be consistent with how
the Supreme Court defined the term in Bryan.
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\7\ See Valerie C. Brannon, Cong. Research Serv., R45153,
Statutory Interpretation: Theories, Tools, and Trends 55 (2023)
citing Robers v. United States, 572 U.S. 639, 643 (2014) (quoting
Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 86
(2006)) (internal quotation marks omitted); see also, e.g., Cochise
Consultancy, Inc. v. United States ex rel. Hunt, 587 U.S. 262, 268
(2019) (``In all but the most unusual situations, a single use of a
statutory phrase must have a fixed meaning.''); see also William N.
Eskridge, Jr. Phillip P. Fricky, Elizabeth Garrett, & James J.
Brudney, Cases and Materials on Legislation and Regulation: Statutes
and the Creation of Public Policy 1198 (5th ed. 2014) (``presumption
of statutory consistency''); Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 170 (2012)
(``presumption of consistent usage'').
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Apart from questions of statutory interpretation, amending the
regulatory definition of ``willfully'' is also appropriate in light of
ATF's former enforcement policy. During the prior administration, ATF
attempted to implement a ``zero tolerance'' policy for gun dealers.\8\
This zero-tolerance policy directed ATF to initiate revocation
proceedings for five categories of conduct: ``(1) transferring a
firearm to a prohibited person, (2) failing to run a background check,
(3) falsifying records, such as a firearms transaction form, (4)
failing to respond to an ATF tracing request, or (5) refusing to permit
ATF to conduct an inspection in violation of the law.'' \9\
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\8\ See Fact Sheet: Biden-Harris Administration Announces
Comprehensive Strategy to Prevent and Respond to Gun Crime and
Ensure Public Safety (Jun. 23, 2021), <a href="https://bidenwhitehouse.archives.gov/briefing-room/statements-releases/2021/06/23/fact-sheet-biden-harris-administration-announces-comprehensive-strategy-to-prevent-and-respond-to-gun-crime-and-ensure-public-safety/">https://bidenwhitehouse.archives.gov/briefing-room/statements-releases/2021/06/23/fact-sheet-biden-harris-administration-announces-comprehensive-strategy-to-prevent-and-respond-to-gun-crime-and-ensure-public-safety/</a> [<a href="https://perma.cc/5KPZ-X6AK">https://perma.cc/5KPZ-X6AK</a>].
\9\ Id.
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Although these violations could only warrant revocation if done
``willfully,'' the prior administration's policy diluted the
willfulness requirement--lowering the bar, in practice, from
intentional/reckless wrongdoing to negligence. During licensing
inspections, ATF Industry Operations Investigators (``IOIs'') provided
federal firearms licensees (``FFLs'') with a review of the GCA's
provisions and implementing regulations verbally. This practice has
often been the subject of scrutiny because ATF has argued that the
review of the acknowledgment with an IOI placed licensees on notice of
the GCA's legal requirements--requirements that are numerous and, in
some cases, difficult and technical. Because FFLs were then supposedly
on notice of the GCA's pertinent legal requirements, ATF would move to
revoke licenses when these requirements were violated, even if the
violations were unintentional and the kind of violations that could
occur through inadvertence. Specifically, FFLs were justifiably
concerned that, under the prior administration's policies, ATF would
initiate revocations for unintentional violations or repeat violations
based on a standard of plain indifference to a known legal requirement.
In practice, that culpability amounted to simple negligence. That
result is precisely what Congress tried to stop when it passed FOPA.
ATF has since rescinded the zero-tolerance policy but, given this
history, ATF has determined that revised regulatory language is
appropriate to respond to concerns about the dilution of the GCA's
mental state requirement and necessary to prevent the reimposition of
abusive enforcement practices in the future. Thus, consistent with
Bryan, ATF proposes to define ``willfully'' in 27 CFR 478.73 in a
manner that aligns with the higher standard of deliberate or
intentional action knowingly violating the statute. ATF proposes to
require that a person must intentionally and purposely engage in
conduct that the law forbids and must act with actual knowledge that
the person's conduct is unlawful. While persons need not know the
specific law they violate, they must know the conduct is unlawful.
In revising the regulatory language, ATF will also define
``willfully'' as it applies to repeated violations, willful blindness,
and supervisor-employee liability. The delineation of these concepts
will capture much of what a proper definition of ``plain indifference''
would have captured but reduce the risk of abusive enforcement
practices by clarifying that a repetitive error is not inherently
willful, particularly when it results from the kind of error that may
be committed through inadvertence.
B. Proposed Revisions
ATF proposes to add the definition of willfully to Sec. 478.73,
rather than to the general definitions section in Sec. 478.11, because
the term ``willfully'' arises in only Sec. 478.73 and has particular
meaning in this context. It is easier for readers to understand the
regulatory requirements if the particular definition is in the same
location as the term used only in that section. Therefore, ATF proposes
adding the definition in a new paragraph (c) under Sec. 478.73.
Paragraph (c) would define ``willfully'' while paragraphs (c)(1)-(3)
would provide more information on how the term applies in specific
scenarios, to clarify when an FFL's conduct rises to the level of
willful behavior. These scenarios are: cases of repeated violations
(failing to prevent a violation from recurring), willful blindness, and
actions by a person with supervisory authority.
Paragraph (c)(1) would clarify the relationship between willfulness
and repeated violations. It provides that ``[e]vidence of repeated
violations with knowledge of the law's requirements may be sufficient
to establish willfulness.'' Thus, a licensee who credibly claimed not
to know a provision of the GCA might have a legitimate defense for a
first violation. But upon a second violation, such a defense would not
be credible, and evidence of a prior violation could be used as
evidence that a person's conduct was willful.
Paragraph (c)(1) also recognizes, however, that not all repeat
violations are willful. Given the complicated nature of the GCA and its
forms and implementing regulations, some paperwork and regulatory
violations may be repeated but unintentional. For example, a person may
check the wrong box on a form or miss a line with information that is
supposed to be filled out. Simple paperwork mistakes, done without
willful intent, should not be the basis of license revocations. That is
why paragraph (c)(1) provides that ``in every case, the totality of the
circumstances must be considered to determine willfulness, including
the nature of the repeated violations and whether they resulted from
inadvertent error.''
Paragraph (c)(2) would provide that deliberately avoiding knowledge
of the law or regulation is not an excuse. A person shall be deemed to
act willfully if he or she takes deliberate actions to avoid learning
about the law or regulation. This codifies traditional standards on
willful blindness. Licensees cannot evade responsibility for willful
violations by deliberately refusing to learn the law or regulation
governing the activity.
Finally, paragraph (c)(3) would establish when a person with
supervisory authority or a responsible person may be deemed to have
willfully violated the GCA based on willful violations of his or her
employees or subordinates. Supervisory authorities or responsible
persons, who are not a principal in or accessory to violating the GCA,
act willfully if they have actual knowledge that their employee
violated the law or regulation and they ratify the employee's action by
(1) failing to cure the violation; (2) concealing the violation; or (3)
failing to take appropriate remedial or disciplinary action against the
employee who committed the violation. This paragraph would limit the
application of respondeat superior to actions ratified by the licensee,
i.e., those in which a
[[Page 25205]]
licensee has knowledge that conduct is unlawful and fails to take
action to remedy the violation, conceals the violation (thus creating a
personal stake in the misconduct), or fails to take reasonable steps to
prevent its recurrence. Respondeat superior is a common law doctrine
``whereby a master is liable for his servant's torts committed in the
course and scope of his employment.'' Horras v. Leavitt, 495 F.3d 894,
904 (8th Cir. 2007) (quoting Burger Chef Sys., Inc. v. Govro, 407 F.2d
921, 925 (8th Cir. 1969)). Courts have held that under the doctrine of
respondeat superior, a type of vicarious liability, the unlawful acts
of their employees can be imputed to FFLs, especially when such conduct
is willful.\10\
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\10\ See Fairmont Cash Mgmt., 858 F.3d at 363 (rejecting the
position that the doctrine of respondeat superior does not apply to
the FFL when its employee partakes in willfully illegal conduct).
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Even if federal law permits licensees to be vicariously liable for
the actions of their employees, this proposed rule seeks comment on
whether such strict liability is appropriate as a matter of policy.
Strict liability for employee misconduct may result in a licensee
losing its license due to a single bad subordinate actor without
considering remedial actions the employer may have taken. Large
businesses with many employees would particularly suffer because a
single rogue employee could imperil the entire business, regardless of
the due care shown by managers and owners. In practice, ATF has not
applied a full vicarious liability standard when revoking federal
firearms licenses. The proposed rule accords with current practice and
rejects full vicarious liability for employee misconduct as a matter of
policy.
The proposed standard articulated in this rule would draw a proper
balance between ensuring that FFLs take responsibility for the
employees under their supervision while not unfairly holding them
strictly liable for actions of which they were unaware. A licensee or
responsible person's behavior would only be willful under the proposed
standard if the licensee or responsible person had actual knowledge of
the employee's unlawful misconduct and ratified the action in certain
ways. The concept of a principal ``ratifying'' an agent's actions is
well known in the law of agency. See Restatement (Third) of Agency sec.
4.01-4.08. ATF believes that the particular conduct enumerated (e.g.,
failing to cure the violation or failing to take remedial or
disciplinary action against an employee) is the kind of conduct that
demonstrates that the principal assents to the conduct as if it had
been authorized, see Restatement (Third) of Agency sec. 4.01(1), (2).
That would make a violation intentional and, consequently, willful.
Paragraph (c)(3) would also reflect that the principal's assent may
be shown by omission (e.g., failing to cure a violation). Misconduct by
an employee should trigger an employer's affirmative duty to rectify
and prevent that misconduct to the extent practicable. Failing to take
reasonable steps to mitigate or prevent a recurrence of the misconduct
leads to a reasonable inference that the employer ratifies the
misconduct. Paragraph (c)(3) would provide that an employer's conduct
rises to the level of willful when it ratifies an action by ``[failing]
to take appropriate remedial or disciplinary action against the
employee who committed the violation.'' Appropriate employer action
would depend on the circumstances. ATF is not suggesting that adverse
employee action must be taken in all cases. For example, an appropriate
remedial action for an inadvertent regulatory violation by an otherwise
careful employee may be to educate the employee on the relevant
regulation. On the other hand, stronger disciplinary actions are
warranted where an employee culpably violates the GCA, and failing to
take such disciplinary actions may lead to an inference that the
employer accepts the misconduct.
Additionally, the employer provision applies only when the licensee
``was not a principal in or an accessory to committing a violation.''
In other words, this provision is aimed only at providing a reasonable
framework for respondeat superior liability. This provision would not
be applicable where licensees themselves are a principal in or an
accessory to a violation. In that case, there is no vicarious
liability; the licensees commit violations in their own right and would
be judged by ordinary principles of willfulness defined in paragraphs
(c), (c)(1), and (c)(2).
Insofar as any aspects of this rulemaking may represent an exercise
of discretionary authority by ATF (e.g., the provision governing
employee misconduct), the GCA at 18 U.S.C. 926(a) delegates such
discretion to ATF. See Loper Bright Enters. v. Raimondo, 603 U.S. 369,
394 (2024). However, ATF welcomes comments on all aspects of the
interpretive analysis and how to best implement the statutory text.
In addition, ATF is taking this opportunity to restructure Sec.
478.73(a) by breaking apart the extremely long paragraph containing
multiple bases for ATF to send notice into four subparagraphs and
streamlining the repetitive portions of the provisions, and making
minor plain writing edits to paragraphs (a) and (b) so they are easier
to read. ATF is not proposing any changes to the substantive content of
paragraphs (a) and (b).
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 codify in ATF regulations a definition of
``willfully'' to clarify when a person's conduct would rise to
willfully violating the GCA or its implementing regulations, in turn
potentially leading to a notice that ATF intends to suspend or revoke a
federal firearms license or impose a civil fine on an FFL. The proposed
definition would implement the standard defined by the Supreme Court in
Bryan, 524 U.S. at 191-92.
The Office of Management and Budget (``OMB'') has determined that
this rule would be a ``significant regulatory action'' under Executive
Order 12866. Therefore, it reviewed this rule. ATF provides the
following analysis to comply with Executive Orders 12866 and 13563.
1. Need Statement
Codifying the definition of ``willfully'' in ATF regulations would
offer greater clarity to the public and regulated licensees, and ensure
that any suspensions, revocations, or fines are in line with the higher
culpability required for ``willful'' violations of the GCA as defined
by the Supreme Court in Bryan. It would also reduce the risk that
unwarranted or unintentional violations would result in such sanctions.
2. Benefits
ATF estimates the impacts of the proposed rule to be primarily
characterized by reduced burden on its regulated industry, specifically
entailing qualitative benefits to current and future FFLs. Revising the
definition of ``willfully'' would offer greater clarity and
predictability to regulated licensees,
[[Page 25206]]
which would constitute qualitative benefits to a potential majority of
the 100,000 FFLs.
In addition, properly defining ``willfully'' would result in
quantifiable cost savings to FFLs who commit minor, technical, or
unintentional violations. Those FFLs, under an alternative definition,
could have been served notices of ATF's intent to suspend or revoke
their license or impose a civil fine for inadvertent violations of the
GCA. Those FFLs would either face administrative consequences or enter
hearings to challenge ATF's intended action.
ATF's interpretation of ``willfully,'' however, still subjects FFLs
to revocation proceedings due to willful or repeated violations of
federal firearms laws that advance public safety.\11\ In such
situations, FFLs are entitled to due process throughout the inspection
and revocation process. To revoke a license, ATF must find that the FFL
willfully committed at least one violation of the GCA or its
regulations. FFLs have the right to appeal a final license revocation
to federal court.\12\
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\11\ Qualifying willful violations include: transferring a
firearm to a prohibited person, failing to conduct a required
background check, falsifying records, failing to respond to a trace
request, and refusing to allow ATF to conduct an inspection. ATF
might also revoke an FFL for willful violations of the GCA that are
not included in the ATF list above.
\12\ Additional information about the revocation process is
available at <a href="http://www.atf.gov/firearms/revocation-firearms-licenses">www.atf.gov/firearms/revocation-firearms-licenses</a>
[<a href="https://perma.cc/566X-9RTB">https://perma.cc/566X-9RTB</a>].
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Between 2021 and 2024, ATF operated under the enhanced regulatory
enforcement policy (``EREP''), which was based on the broader
definition of ``willfully'' discussed in section II.A of this preamble.
As a result, data on the number of notices or proxy letters and the
number of hearings provides a baseline from which to estimate the
number of persons in the future who might be impacted if this proposed
rule does not go into effect. In turn, that number represents the
number of FFLs who would potentially benefit from cost savings from
this proposed rule.
ATF determined the portion of ATF administrative hearings and
revocations/other dispositions that were attributable to the
enforcement policy. Based on data over the four-year average between
2021 and 2024, out of a total of 397 inspections that resulted in
notices, 183 went to hearing while 214 did not. FFLs requested hearings
and incurred associated costs for 46 percent of the notices. ATF
therefore applied this same percentage to the number of notices sent to
FFLs for one of the qualified violations (refer to footnote 11), to
estimate the number of FFLs that would no longer incur the costs of
hearings if this rule were issued as proposed.
To estimate the number of notices, ATF combined data on both
revocations and other non-revocation dispositions (such as suspensions,
fines, or no action) over time, which resulted in the following data:
Table 1--Data on Revocations and Other Dispositions
----------------------------------------------------------------------------------------------------------------
2018 2019 2020 2021 2022 2023 2024
----------------------------------------------------------------------------------------------------------------
Revocations........................ 49 43 40 27 90 170 195
Other dispositions................. ......... ......... 15 3 62 168 182
Notices/proxy letters.............. 49 43 55 30 152 338 377
Percent change between years....... ......... -12 28 -45 407 122 12
----------------------------------------------------------------------------------------------------------------
The EREP policy, which relied on a broad reading of the definition
of ``willfully,'' resulted in an increase of 407 percent in ATF's
estimated number of notices between 2021 and 2022 when EREP was
implemented, followed by additional increases of 122 and 12 percent,
respectively, over the two years that followed. Applying the statistic
that 46 percent of cases result in a hearing to the number of notices
for each year, ATF estimated the number of hearings over the past seven
years, in Table 2.
Table 2--Data on Revocations and Other Dispositions
----------------------------------------------------------------------------------------------------------------
2018 2019 2020 2021 2022 2023 2024
----------------------------------------------------------------------------------------------------------------
Notices/proxy letters.............. 49 43 55 30 152 338 377
Estimated number of notices 23 20 25 14 70 155 173
resulting in hearings.............
----------------------------------------------------------------------------------------------------------------
Using this data to produce a baseline average of hearings per year
before and after the EREP based on the broader definition of
``willfully'' yielded a baseline average of 20 hearings per year,
compared to an EREP average of 133 hearings per year. The difference
nets an increase of 113 hearings per year under the policy, assuming it
would have remained steady over time--from which ATF projects that, if
this rule does not go into effect, 113 more FFLs per year could, in the
future, incur the costs for appeal hearings because the broader
definition applied by courts in civil cases could continue being used
even without the EREP.
Assuming a hearing takes six hours on average, and that legal
representation would total approximately $350 per hour,\13\ each
hearing would result in an estimated legal cost of $2,100 per FFL. This
benefit in the form of potential cost savings, when applied to the
annual average of 113 hearings, results in an annual potential savings
to FFLs of $237,300 from this proposed rule, which would result in cost
savings of $2.373 million over ten years.
---------------------------------------------------------------------------
\13\ See, e.g., Clio, Average Lawyer and Non-Lawyer Hourly Rates
by State, <a href="https://www.clio.com/resources/legal-trends/compare-lawyer-rates/">https://www.clio.com/resources/legal-trends/compare-lawyer-rates/</a> [<a href="https://perma.cc/8NZV-8TAB">https://perma.cc/8NZV-8TAB</a>].
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While this would be the estimated quantitative impact of reversing
an internal enforcement policy, codifying a more stringent standard
that would likely reduce regulatory enforcement actions over time would
be similar, or perhaps slightly greater, and on an enduring basis.
3. Costs
In addition to the qualitative and quantitative benefits discussed
above, ATF estimates the impacts of the proposed rule to also include
potential
[[Page 25207]]
qualitative costs in the form of greater risks to public safety.
The data above includes annual revocations under the baseline of
195 in 2024, 170 in 2023, and 90 in 2022, which results in a three-year
average of 152 revoked federal firearms licenses per year. ATF expects
to reduce this estimate considerably based on shifting enforcement
priorities and this proposed rule, which would raise the threshold for
what qualifies as a violation that could result in a suspension,
revocation, or civil fine.
Many violations are likely minor and not due to purposeful evasion.
Nonetheless, there remains the possibility that incidents of neglect,
uncorrected subordinate employee error, or other avoidable violations
could go uncorrected without the threat of consequences or incentive
for mitigating or corrective action. As a result, an unknown proportion
of these 152 violators per year might continue to violate the existing
regulations, thereby increasing the risk of harm to public safety.
While slim, there are chances that such violations might result in
unfavorable social outcomes, such as a prohibited person obtaining a
firearm without a background check, an FFL refusing to comply with a
trace request in pursuit of a violent criminal, or other similar
consequential violations.
4. Regulatory Alternatives
ATF considered three alternatives: continuing the status quo
without changing the existing regulatory definition; issuing guidance
to internal ATF enforcement divisions and personnel who enforce the
provisions; or revising the existing regulation.
Alternative 1: Continuing the Status Quo (No Action Alternative)
ATF considered this alternative of continuing the status quo, which
is to take no action; however, the existing interpretation, which is
less stringent than when applied in a criminal context, has created an
unpredictable and inconsistent compliance environment for licensees
that could result in unintentional or unwarranted consequences for
minor violations of GCA regulations. While the volume of adverse
actions is relatively low and likely to be reduced further under the
existing baseline, greater clarity benefits all current and future FFLs
and the greater leniency for unintentional violators reduces burden on
the public. ATF therefore did not elect this alternative.
Alternative 2: Issuing Guidance
ATF considered issuing guidance to internal ATF Field Industry
Operations Investigators, directing them to apply the more stringent
definition and enforcement standard of ``willfully'' proposed in this
rule. But ATF determined that the guidance alternative was insufficient
as a full replacement for a rulemaking, due to the differing court
interpretations in the absence of an established ATF implementing
definition. Courts would not rely on guidance for such an established
definition, even if it were external, and internal guidance would carry
no weight toward a more consistent definition. As a result, ATF opted
to codify the definition in the regulation instead.
Alternative 3: Rulemaking (Proposed Alternative)
ATF determined that, as noted above, the rulemaking option is
necessary to revise the existing definition of ``willfully'' because it
would offer greater clarity to the public and regulated licensees. As
discussed above, ATF believes that the current standard that prevails
in the courts of appeals is not the appropriate definition of
``willfulness'' under the GCA for license revocation proceedings. At
least preliminarily, ATF believes that the proposed definition is the
best interpretation of what the GCA meant by ``willful.'' Thus, as a
practical matter, by adopting a more stringent standard for regulatory
enforcement, the proposed rule would ensure minor, technical, or
unintentional violations would not result in suspension, revocation, of
civil fine notices for FFLs. Providing this definition of willfulness
would enable consistent application across courts and administrative
proceedings.
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 under 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. Although it is a
significant regulatory action as defined by Executive Order 12866, it
would not impose total costs greater than zero. This proposed rule
would provide qualitative benefits by offering greater clarity to the
public and regulated licensees, and would provide a clear definition
for courts to apply when assessing cases under ATF's implementing
regulations. By adopting a more stringent standard for regulatory
enforcement, the proposed rule would also ensure minor, technical, or
unintentional violations would not result in suspension, revocation, or
civil fine notices for FFLs. It is possible there could be some risk to
public safety from FFLs that do not take the necessary steps to
rehabilitate neglectful practices that may result in unfavorable social
outcomes, such as a prohibited person obtaining a firearm without a
background check, or not complying timely with a trace request in
pursuit of a violent criminal. Those risks, however, are speculative.
Therefore, as discussed above, ATF expects this rule, if finalized as
proposed, to qualify as an Executive Order 14192 deregulatory action
(defined by OMB Memorandum M-25-20 as a final action that imposes total
costs less than zero) because it relaxes the standard upon which
regulatory enforcement action may be taken against FFLs.
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 would 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
[[Page 25208]]
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 rulemaking requirements
unless the agency head certifies, including a statement of the 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 is deregulatory and would
not impose any additional costs.
F. 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 would 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.
G. 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 would not create any new
information collection requirements or impact any existing ones covered
by the PRA.
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-AA88 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 identifying 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, and 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-AA88. 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 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.
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).
[[Page 25209]]
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-AA88).
Severability
Consistent with the Administrative Procedure Act, the issues raised
in this proposed rule may be finalized, or not, independently of each
other, after consideration of comments received. ATF has determined
that this proposed rule implements and is fully consistent with
governing law. However, in the event this proposed rule is finalized,
if any provision of that final rule, an amendment or revision made by
that rule, or the application of such provision or amendment or
revision to any person or circumstance, is held to be invalid or
unenforceable by its terms, the remainder of that final rule, the
amendments or revisions made by that rule, and application of the
provisions of the rule to any person or circumstance shall not be
affected and shall be construed so as to give them the maximum effect
permitted by law.
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 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. Revise Sec. 478.73 to read as follows:
Sec. 478.73 Notice of revocation, suspension, or imposition of civil
fine.
(a) Basis for action. The Director may issue an ATF Form 4500 to
notify a licensee whenever the Director has reason to believe that:
(1) The licensee has willfully violated any provision of the Act or
this part and ATF intends to revoke the license;
(2) The licensee does not have secure gun storage or safety devices
available at any place in which firearms are sold under the license to
persons who are not licensees and ATF intends to revoke the license
(except in any case in which a secure gun storage or safety device is
temporarily unavailable because of theft, casualty loss, consumer
sales, backorders from a manufacturer, or any other similar reason
beyond the control of the licensee);
(3) The licensee has knowingly transferred a firearm to an
unlicensed person and knowingly failed to comply with the requirements
of 18 U.S.C. 922(t)(1) with respect to the transfer and, at the time
that the transferee most recently proposed the transfer, the national
instant criminal background check system was operating and information
was available to the system demonstrating that transfer to the
transferee or their receipt of a firearm would violate 18 U.S.C.
922(d), 922(g), or 922(n) (as applicable), or state, local, or tribal
law, and ATF intends to revoke or suspend the license or impose a civil
fine, pursuant to 18 U.S.C. 922(t)(5) and 18 U.S.C. 924(p); or
(4) The licensee has violated 18 U.S.C. 922(z)(1) by selling,
delivering, or transferring any handgun to any person other than a
licensee, unless the transferee was provided with a secure gun storage
or safety device for that handgun, and ATF intends to revoke or suspend
the license or impose a civil fine, pursuant to 18 U.S.C. 922(t)(5) and
18 U.S.C. 924(p).
(b) Issuing the notice. The notice must set forth the matters of
fact constituting the violations specified, dates, places, and the
sections of law and regulations violated. The Director must afford the
licensee 15 days from the date the licensee receives the notice to
request a hearing before ATF suspends or revokes the license, or
imposes a civil fine. If the licensee does not file a timely request
for a hearing, the Director will issue a final notice suspending or
revoking the license or imposing a civil fine on ATF Form 5300.13, as
provided in Sec. 478.74.
(c) Definition of willfully. For purposes of this section,
``willfully'' means that the person intends to engage in conduct that
the law forbids and acts with actual knowledge that the person's
conduct is unlawful.
(1) Failing to prevent a violation from recurring. Evidence of
repeated violations with knowledge of the law's requirements may be
sufficient to establish willfulness. However, in every case, the
totality of the circumstances must be considered to determine
willfulness, including the nature of the repeated violations and
whether they resulted from inadvertent error.
(2) Willful blindness. Persons are deemed to act willfully if they
take deliberate actions to avoid learning that they are violating a law
or regulation. Willful blindness will also satisfy the actual knowledge
requirement in paragraphs (1) and (3) of this definition.
(3) Person with supervisory authority. A licensee or responsible
person (who was not a principal in or an accessory to committing a
violation) is deemed to act willfully based on conduct by the person's
employee if, and only if, the licensee or responsible person has actual
knowledge that the employee has violated a law or regulation and
ratifies the violation by doing any of the following--
(i) Failing to take action to cure the violation, if the violation
is susceptible of being cured;
(ii) Concealing the violation; or
(iii) Failing to take appropriate remedial or disciplinary action
against the employee who committed the violation.
Robert Cekada,
Director.
[FR Doc. 2026-09159 Filed 5-7-26; 8:45 am]
BILLING CODE 4410-FY-P
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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.