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] See18 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. See28 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 CFR part 478.

Section 922(e) of the GCA makes it “unlawful for any person knowingly to deliver or cause to be delivered to any common or contract carrier for transportation or shipment in interstate or foreign commerce, to persons other than licensed importers, licensed manufacturers, licensed dealers, or licensed collectors, any package or other container in which there is any firearm or ammunition” without providing written notice to the carrier that such firearm or ammunition is being transported or shipped. There is an exception to this requirement: any passenger who owns or legally possesses a firearm or ammunition being transported aboard any common or contract carrier for movement with the passenger in interstate or foreign commerce may deliver the firearm or ammunition into the custody of the pilot, captain, conductor, or operator of the common or contract carrier for the duration of the trip without violating any of the provisions of that chapter of the GCA. 18 U.S.C. 922(e).

Congress did not provide a definition as to what circumstances do or do not qualify as having “delivered” or “caused to be delivered” any firearm or ammunition to any common or contract carrier for purposes of the first clause of section 922(e). Thus, ATF proposes this rule to clarify what circumstances do not qualify as having “delivered” or “caused to be delivered” any firearm or ammunition to any common or contract carrier for purposes of section 922(e). Specifically, this rule would clarify that if an individual possesses a firearm that is being transported aboard any common or contract carrier for movement with the passenger in interstate or foreign commerce, and that individual maintains direct control and possession of the firearm or ammunition, such actual possession does not result in a “delivery” to the common or contract carrier under section 922(e), and would therefore not amount to a violation of that provision.

II. Proposed Rule

ATF proposes to amend 27 CFR 478.31 by adding a new paragraph (e) to explain that persons who travel aboard a common or contract carrier and who possess a firearm or ammunition on their person or in baggage under their immediate control are not to be considered to have “delivered” or “caused to be delivered” a “package” or “other container” containing a firearm or ammunition when the person maintains direct control over the firearm or ammunition for the duration of the person's trip and does not relinquish possession or custody to the common carrier. The new paragraph also explains that common or contract carriers do not include public or private for-hire vehicles ( e.g., taxis, limousines, rideshares etc.), or municipal or regional mass transit vehicles, including those that cross state lines, for which passengers do not deliver the firearm or ammunition into the custody of the operator of the common or contract carrier.

As explained above, this proposed change provides greater clarification as to circumstances that do not come within the ambit of 18 U.S.C. 922(e). The term “delivery” is defined in Black's Law Dictionary (12th ed. 2024) as follows: “[t]he formal act of voluntarily transferring something.” ATF proposes that to constitute a delivery to a common or contract carrier for purposes of violations of 18 U.S.C. 922(e), the possessor of the firearm or ammunition must have voluntarily transferred said firearm or ammunition to the common or contract carrier. Thus, if the individual maintains direct control of the firearm or ammunition ( e.g., by keeping it on his person), a transfer of the firearm or ammunition to the common or contract carrier does not occur.

This interpretation of the word “deliver” is consistent with the plain meaning of that term. Most individuals would not, when boarding a bus while carrying a firearm, believe they had “delivered” that firearm to the carrier operating the bus. Therefore, it is unlikely that most people, having read section 922(e), would understand it to mean that they must notify the carrier of the firearm on their hip or in their backpack to avoid violating this provision of law. The proposed regulation ensures the statute will be interpreted using the plain, ordinary meaning of the statutory text, thereby reducing the chances that an unwitting individual with no intent to violate the law will be accused of doing so. SeeE.O. 14294, 90 FR 20363 (May 14, 2025) (denouncing “abuse and weaponization by providing Government official tools to target unwitting individuals”).

Indeed, when federal courts of appeals have affirmed convictions under 18 U.S.C. 922(e), it has been almost exclusively in circumstances where the defendants have given up direct control of the firearms or ammunition in question to the carrier without notifying them. For example, in United States v. Udofot, 711 F.2d 831 (8th Cir. 1983), the court affirmed the conviction of a passenger under 18 U.S.C. 922(e) where the evidence showed that the passenger checked luggage with an airline, relinquishing control of the luggage and its contents, and that the luggage contained firearms. In United States v. Burton, 351 F. Supp. 1372 (W.D. Mo. 1972), aff'd, 475 F.2d 469 (8th Cir. 1973), the court held that a passenger violated 18 U.S.C. 922(e) when the evidence showed that the passenger delivered a suitcase to an airline in Kansas City, which was to be ( printed page 24397) returned to him upon arrival in Minneapolis and that the suitcase was found, “without any break in the chain of custody,” to contain a firearm. In United States v. Dunn, 813 F.2d 1124 (11th Cir. 1987) (per curiam), the court affirmed a conviction under 18 U.S.C. 922(e) when the defendant checked luggage containing firearms onto an airline without notifying the airline orally or in writing that the luggage contained the firearms.

ATF proposes amending its regulation at 27 CFR 478.31 so that it more closely conforms to the agency's earlier interpretation of the GCA. Until 1981, ATF's position was that a passenger aboard a common or contract carrier who possesses a firearm or ammunition on his or her person would not fall within the proscriptions of 18 U.S.C. 922(e), as there would be no “delivery” to the common or contract carrier.^[3] In support of this interpretation, ATF also noted that the legislative history of section 922(e) indicates that it was designed to make more effective the succeeding subsection (18 U.S.C. 922(f)), which prohibits a carrier from transporting or delivering a firearm or ammunition in violation of 18 U.S.C. chapter 44.^[4] The possession of a firearm or ammunition by a passenger would not affect that subsection.

In 1981, the agency changed its interpretation based on United States v. Williams, 485 F.2d 1383 (4th Cir. 1973). In that case, the defendant boarded a commercial airliner and handed his luggage to the pilot who placed it in the nose cone of the airplane where it remained throughout the duration of the flight. The defendant did not, however, inform the pilot orally or in writing that a firearm was contained in the luggage. Even though the defendant relinquished control of the firearm, the court held that the exception within section 922(e) only applies where the firearms or ammunition are delivered into the carrier's custody in such a manner as to make the carrier aware of that fact. But even Williams did not involve a firearm carried upon the person throughout the duration of the trip.

The Fourth Circuit took the holding of Williams one step further in United States v. Hartzog, 983 F.2d 604 (4th Cir. 1993), which affirmed a defendant's conviction under 18 U.S.C. 922(e) when the defendant, having firearms in bags slung across his back, placed at least one foot on the steps of a train. The court rejected the defendant's argument that control of the firearms must be relinquished to the carrier for him to be in violation of 922(e), reasoning that the language of the statue contemplates, by negative inference, that retention of control of a firearm while aboard a common carrier would constitute a “delivery” and that to hold otherwise would be to permit arms traffickers to escape the ambit of the statute merely by retaining possession of the firearms while on board a carrier, which, the court said, could not have been the intent of Congress.

The Fourth Circuit's decision in Hartzog appears to conflict with the statutory text. A person who carries a firearm directly on his person does not “deliver . . . any package or other container” within the meaning of the statute. 18 U.S.C. 922(e). He delivers nothing to the carrier. And in many cases ( e.g., a firearm carried on the person), he does not deliver a “package” or “other container.” He simply has possession of the firearm.

ATF maintains that this textual interpretation does not create any regulatory loophole. Section 922(e) requires individuals to alert common carriers before they take custody or control of packages containing firearms. Section 922(f) then imposes requirements on how those common or contract carriers transport the firearms. Section 922(e) was never intended to act as a restriction against individuals carrying accessible weapons on their person.^[5] Unlike the common carrier or contract transportation of inaccessible firearms contained in packages or baggage, the carriage of accessible weapons is heavily regulated by state and local law, which usually regulates firearms carried “on” or “about” the person. See, e.g., 11 Del. Code 1441; N.C. Code 14-269; Va. Code 18.2-308. Federal law also governs the carrying of accessible weapons aboard certain modes of transportation, such as aircraft separately from section 922(e). See, e.g.,49 U.S.C. 46505. Therefore, ATF does not presume that section 922(e) also regulates carrying accessible weapons without further specificity. Moreover, common or contract carriers are generally free to prohibit or regulate the possession or carrying of firearms on their property and on board their vehicle. Section 922(e) is most reasonably read to govern situations in which individuals relinquished firearms or ammunition to a common or contract carrier, not when individuals maintain direct, accessible control over the firearm.

It does not appear that any other federal courts of appeal have interpreted the meaning of “delivery” for purposes of 18 U.S.C. 922(e) as broadly and expansively as the Fourth Circuit did in Hartzog. Indeed, ATF has not identified any cases other than Hartzog in which a court determined that a person carrying a firearm or ammunition on a common or contract carrier violated section 922(e). The far more common scenario involves a passenger checking in luggage that contains firearms or ammunition. See, e.g., United States v. Udofot, 711 F.2d 831 (8th Cir. 1983); United States v. Burton, 351 F. Supp. 1372 (W.D. Mo. 1972), aff'd, 475 F.2d 469 (8th Cir. 1973); United States v. Dunn, 813 F.2d 1124 (11th Cir. 1987) (per curiam); United States v. Fortenberry, 914 F.2d 671 (5th Cir. 1990) (affirming conviction under 18 U.S.C. 922(e) when defendant checked in luggage containing firearm); United States v. Flores, 753 F.2d 1499 (9th Cir. 1985) (en banc) (affirming conviction under 18 U.S.C. 922(e) when defendant checked two steamer trunks containing 22 revolvers as baggage for travel on an airline without giving the notice required by that section); United States v. Keuylian, 602 F.2d 1033 (2d Cir. 1979) (affirming conviction under 18 U.S.C. 922(e) where defendant packed firearms in his luggage and gave the luggage to an airline passenger service representative to be checked in).

In short, this proposed rule seeks to return to the earlier (and most logical) interpretation of 18 U.S.C. 922(e), given that the case law, with the exception of few cases from a singular circuit, supports the agency's position that the phrase “delivered to a contract carrier” does not encompass continuous possession of a firearm by an individual on a contract carrier. This proposed rule is also supported by Executive Order 14206 (Protecting Second Amendment Rights). 90 FR 9503 (Feb. 7, 2025). In that Executive Order, the President set forth that the “Second Amendment is an indispensable safeguard of security and liberty” and “[b]ecause it is foundational to maintaining all other rights held by Americans, the right to keep and bear arms must not be infringed.”

Further, section 922(e) clearly evidences an intent by Congress to only include those common or contract carriers to which “written notice to the carrier” may be provided prior to shipment or transportation or which provide their customers the ability to “deliver” the firearm or ammunition into the custody of the pilot, captain, ( printed page 24398) conductor or operator of such common or contract carrier. Accordingly, ATF proposes to clarify that “common or contract carrier” for purposes of the GCA does not include municipal and regional mass transit vehicles, including those that cross state lines, for which a passenger cannot deliver the firearm or ammunition to the operator of the common or contract carrier nor provide effective written notice prior to the transport or shipment. Examples would include a metro train or metro bus. The statutory text of section 922(e), which presumes the ability to place items in the custody of the carrier or its employees, does not support its application to such forms of transportation where there is an inability to provide written notice or “delivery” of the firearm and ammunition prior to the transportation and where there is no checked baggage service. Similarly, ATF does not believe that section 922(e) was intended to apply to public or private for-hire vehicles ( e.g., taxis, limousines, rideshares etc.) in which customers do not customarily check baggage or provide written notice about the contents of their baggage.

Finally, it must also be noted that liability under section 922(e) is separate from any liability that may attach by reason of statutes or regulations administered by other federal agencies or by state or local government restricting possession of firearms on common or contract carriers. It may be possible for an individual to be in violation of statutes or regulations not enforced by ATF while being in compliance with section 922(e). Thus, for example, federal law will continue to restrict the carrying of accessible weapons aboard commercial aircraft. 49 U.S.C. 46505(b)(1); 14 CFR 135.119. State laws may also further restrict firearms aboard buses and trains. See, e.g., N.M. Stat. 30-7-13 (restricting carrying firearms aboard buses).

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 proposed rule would clarify that for purposes of the first clause of 18 U.S.C. 922(e), a person who travels aboard a common or contract carrier while in possession of a firearm or ammunition is not considered to have “delivered” or “caused to be delivered” said firearm or ammunition to the common or contract carrier so long as the person possesses and maintains direct control over the firearm or ammunition for the duration of the trip. The rule would also make clear that common or contract carriers do not include municipal or regional transit vehicles, or public or private for-hire vehicles ( e.g., rideshares, taxis, or limousines), for which passengers do not deliver the firearm or ammunition into the custody of the operator.

The Office of Management and Budget (“OMB”) has determined that this rule would not be a “significant regulatory action” under Executive Order 12866. This rulemaking provides qualitative benefits to the public by providing more flexibility with respect to complying with statutes and existing regulatory standards, but ATF does not have sufficient information to calculate quantifiable savings. Therefore, ATF requests more information from the public regarding the economic effects that this rulemaking may have on the public and the regulated industries.

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 because it is not a significant regulatory action as defined by Executive Order 12866 and it would not impose total costs greater than zero. ATF therefore 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 provides qualitative savings. Under the rule, the public would have more options with respect to transporting their firearms without concern for violating the GCA and existing regulatory standards.

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 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 ( printed page 24399) would not have a significant economic impact on a substantial number of small entities because it generally affects individuals who are moving their firearms interstate and merely provides them more flexibility with respect to complying with statutes and existing regulatory standards. This proposed rule is deregulatory and would not impose any additional costs.

G. Unfunded Mandates Reform Act of 1995

This rule does not include a federal mandate that might result in 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.

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. See5 CFR 1320.3(c). This proposed rule would not create any new information collection requirements or impact any existing ones covered by the PRA.

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-AA84 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 https://www.regulations.gov. 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 https://www.regulations.gov. 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-AA84. 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). Hand-delivered comments will not be accepted.

• Federal e-rulemaking portal: ATF recommends that you submit your comments to ATF via the federal e-rulemaking portal at https://www.regulations.gov 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 successfully uploading your comment.
• 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.” ( printed page 24400)

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 https://www.regulations.gov (search for RIN 1140-AA84).

For the reasons discussed in the preamble, ATF proposes to amend 27 CFR part 478 as follows:

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).

2. Add § 478.31(e) to read as follows:

91 FR 24395