This is a proposed rule (not final) that significantly expands and clarifies federal protections for interstate firearm travel, including stops, overnight stays, and transporting accessories.
Impact: High and positive—greatly reduces legal risk for travelers and broadens practical protection under federal law.
Applies to: Primarily individuals, with minimal impact on FFLs.
What this rule means
Federal law (18 U.S.C. § 926A) already provides a “safe harbor” allowing people to transport firearms between states where they are legal.
The problem:
- Courts have interpreted this protection very narrowly
- Travelers have been arrested for:
- Flight delays
- Overnight hotel stays
- Temporary possession during travel disruptions
This rule clarifies that normal, real-world travel activities are still protected under federal law.
What the rule actually does
If finalized, this rule would:
- Expand what counts as “transportation”
- Includes activities that are reasonably necessary to travel, such as:
- Overnight hotel stays
- Stopping for gas, food, or rest
- Medical emergencies
- Vehicle breakdowns
- Switching between travel modes (car → plane, etc.)
This directly pushes back against restrictive court decisions that said protection only applied during uninterrupted travel.
- Clarify protection during interruptions
- You do NOT lose protection if:
- Your flight is delayed
- You are forced to stay overnight
- As long as:
- The interruption is reasonable and related to travel
- Add clear storage requirements during travel
- Firearms must be:
- Unloaded
- Not readily accessible
- If outside a vehicle (e.g., hotel stay):
- Must be in a locked container
- Explicitly protect transportation of accessories
- Includes:
- Ammunition
- Magazines
- Optics, lights, braces, grips, etc.
- Prevents states from indirectly restricting firearms by banning related items
Important limitation:
- Items must still be legal:
- Under federal law
- At origin AND destination
- Protect transitional handling
- You remain protected when:
- Moving firearms between locations (car → airport, etc.)
- Presenting firearms for inspection (TSA, airline, etc.)
- Add a severability clause
- If one part of the rule is struck down:
- The rest remains in effect
What will change (real-world impact)
For Individuals (Major Impact):
- Much stronger legal protection when traveling with firearms
- Reduces risk of arrest in restrictive states during:
- Layovers
- Delays
- Unexpected travel issues
- Clarifies that:
- Travel does NOT have to be uninterrupted
- Provides clear guidance on:
- How to store firearms during stops
This directly addresses real cases where travelers were arrested despite trying to follow the law.
For FFLs / Industry:
- No meaningful operational impact
For the system overall:
- Expands federal “safe harbor” protections
- Pushes back against restrictive court interpretations
- Reinforces that federal law preempts conflicting state laws during lawful transport
- Aligns the law with how people actually travel
Key Takeaways
- This is a major pro-traveler clarification
- Recognizes real-world travel (delays, hotels, transitions)
- Expands protection to accessories like magazines and optics
- Still requires proper storage (unloaded, locked, not accessible)
- Does NOT protect possession at the destination if illegal there
Proposed Rule to be Posted:
DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR part 478
[Docket No. ATF-2026-0133; ATF No. 2025R-18P]
RIN 1140-AA73
Clarifying Interstate Transportation of Firearms under the Gun Control Act
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice.
ACTION: Notice of proposed rulemaking.
SUMMARY: The Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) proposes
amending Department of Justice (“Department”) regulations to clarify that, for purposes of
transporting firearms interstate, any activities that are reasonably necessary to transportation
such as staying overnight in temporary lodging, stopping for food, fuel, vehicle maintenance,
an emergency, or medical treatment, or transiting between modes of transportation, are
considered “transport” and thus protected by the Gun Control Act provision that addresses
interstate transport of firearms. The proposed rule also addresses transporting ammunition
and firearm accessories between states and the requirements for securing firearms during
such transit.
DATES: Comments must be submitted in writing, and must be submitted on or before (or, if
mailed, must be postmarked on or before) [INSERT DATE 90 DAYS AFTER DATE OF
PUBLICATION IN THE FEDERAL REGISTER]. 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-AA73, by either of the
following methods—• Federal e-rulemaking portal: https://www.regulations.gov. Follow the instructions for
submitting comments.
• 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: ATF 1140-AA73.
Instructions: All submissions must include the agency name and number (RIN 1140-
AA73) for this notice of proposed rulemaking (“NPRM” or “proposed rule”). ATF may post
all properly completed comments received from either of the methods described above,
without change, to the federal e-rulemaking portal, https://www.regulations.gov. 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 https://www.regulations.gov.
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
ORA@atf.gov, by mail at Office of Regulatory Affairs; Enforcement Programs and Services;Bureau of Alcohol, Tobacco, Firearms, and Explosives; 99 New York Ave, NE; Washington,
DC 20226, or by telephone at 202-648-7070 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Background
The Attorney General is responsible for enforcing the Gun Control Act of 1968
(“GCA”), as amended. This responsibility includes the authority to promulgate regulations
necessary to enforce the provisions of the GCA.1 See 18 U.S.C. 926(a). Congress and the
Attorney General have delegated the responsibility for administering and enforcing the GCA
to the Director of ATF (“Director”), subject to the direction of the Attorney General and the
Deputy Attorney General. See 28 U.S.C. 599A(b)(1), (c)(1); 28 CFR 0.130(a)(1)–(2); Treas.
Order No. 221(2)(a), (d), 37 FR 11696–97 (June 10, 1972).2 Accordingly, the Attorney
General and ATF have promulgated regulations to implement the GCA in 27 CFR part 478.
A. Statutory and regulatory provisions
Section 926A of the GCA provides that: “Notwithstanding any other provision of any
law or any rule or regulation of a state or any political subdivision thereof, any person who is
not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm
shall be entitled to transport a firearm for any lawful purpose from any place where he may
lawfully possess and carry such firearm to any other place where he may lawfully possess
and carry such firearm if, during such transportation the firearm is unloaded, and neither the
firearm nor any ammunition being transported is readily accessible or is directly accessible
from the passenger compartment of such transporting vehicle: Provided, That in the case of a
1 Some GCA provisions still refer to the “Secretary of the Treasury.” However, the Homeland Security Act of
2002, Pub. L. 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 ATF’s jurisdiction on those topics, including under the National Firearms Act,
GCA, and Title XI of the Organized Crime Control Act. ATF’s jurisdiction also includes those portions of sec.
38 of the Arms Export Control Act pertaining to permanently importing defense articles and services and the
Contraband Cigarette Trafficking Act.vehicle without a compartment separate from the driver’s compartment the firearm or
ammunition shall be contained in a locked container other than the glove compartment or
console.” (Emphasis added).
The implementing regulation at 27 CFR 478.38 contains substantively identical
language. Neither the statute nor the regulation addresses transit when a person is between
modes of transportation or when a firearm or ammunition is no longer in “transport” due to
incidental activities arising during the person’s continuous transport. The Department has
previously advised that section 926A applies when (1) a person is traveling from somewhere
he lawfully may possess and carry a firearm; (2) en route to the airport when the firearm is
unloaded and not accessible from the passenger compartment of his car; (3) the person
transports the firearm directly from his vehicle to the airline check-in desk without any
interruption in the transportation; and (4) while carrying the firearm to the check-in desk, it is
unloaded and in a locked container. See Letter to the Honorable Don Young, U.S. House of
Representatives, from William E. Moschella, Assistant Attorney General, Office of
Legislative Affairs, U.S. Department of Justice (Feb. 18, 2005). However, ATF has not
codified this advice, nor has ATF extended section 926A to delays or a break in travel. ATF
also has not codified how section 926A applies to the transportation of accessories, such as
ammunition magazines, that would ordinarily be transferred with the firearm.
B. Justification for the rule
Under two independent theories, ATF believes that section 926A properly
encompasses some transportation of a firearm outside of a transporting vehicle.
First, ATF believes that this is the best reading of the statute’s plain text. Section
926A provides that a person may transport an unloaded firearm if “neither the firearm nor
any ammunition being transported is readily accessible or is directly accessible from the
passenger compartment of such transporting vehicle.” 18 U.S.C. 926A. These provisions may
be read independently: a requirement that firearms transported in vehicles not be “directlyaccessible from the passenger compartment” and a second requirement that firearms carried
by means other than vehicles not be “readily accessible.” See Ass’n of N.J. Rifle & Pistol
Clubs Inc. v. Port Auth. of N.Y. & N.J., 730 F.3d 252, 258–59 (3d Cir. 2013) (Jordan, J.,
concurring in the judgment).
Legal and textual arguments support this conclusion. A firearm that is not “directly
accessible from the passenger compartment”—primarily, one stored in the vehicle trunk or
truck bed—would already not be “readily accessible” because it would not be accessible for
immediate use as a weapon. See Henderson v. United States, 687 A.2d 918, 922 (D.C. 1996)
(holding that a firearm was not “on or about” the defendant’s person when it was located in
the trunk of his car for purposes of a D.C. Code violation); id. at 922 n.9 (explaining that “the
clear weight of authority in other jurisdictions” holds that a firearm in a trunk is not readily
accessible). If “readily accessible” modified only vehicular carry, it would be surplusage
because it would already be covered by the requirement that the firearm and ammunition be
stored outside the vehicle compartment (or in a locked container other than the glove
compartment or console). The statute also repeats the word “is,” which gives some textual
indication that these two disjunctive provisions are meant to be separate. See Ass’n. of N.J.
Rifle & Pistol Clubs Inc., 730 F.3d at 259 (Jordan, J., concurring). The statute also connects
the vehicle to “directly accessible” when it states that the firearm may not be “directly
accessible from the passenger compartment of such transporting vehicle.” 18 U.S.C. 926A.
Relatedly, reading these provisions independently gives “or” its usual disjunctive application,
i.e., signaling separate meanings. And while the term “can sometimes introduce an
appositive—a word or phrase that is synonymous with what precedes it . . . —its ordinary use
is almost always disjunctive, that is, the words it connects are to be given separate
meanings.” United States v. Woods, 571 U.S. 31, 45 (2013) (internal quotation marks
omitted); see also Loughrin v. United States, 573 U.S. 351, 357 (2014) (“As we have
recognized, that term’s ordinary use is almost always disjunctive, that is, the words itconnects are to be given separate meanings. Yet [Petitioner] would have us construe the two
entirely distinct statutory phrases that the word ‘or’ joins as containing an identical element.
And in doing so, his interpretation would make [the statute’s] second clause a mere subset of
its first . . . [This] construction thus effectively reads ‘or’ to mean ‘including’—a definition
foreign to any dictionary we know of.”) (internal citation and quotation marks omitted).
Nor does ATF read the proviso as altering the above analysis, in that the “Provided”
language specifically references the clause directly preceding it, i.e., “in the case of a
vehicle,” and clarifies the unusual situation where a vehicle has a glove compartment or
console but no trunk or truck bed. See Las Vegas Sun, Inc. v. Adelson, 147 F. 4th 1103, 1119
(9th Cir. 2025) (“As an initial matter, it is a well-established canon of construction that ‘a
proviso usually is construed to apply to the provision or clause immediately preceding it.’”
(quoting Pacificorp v. Bonneville Power Admin., 856 F.2d 94, 97 (9th Cir. 1988)) (quoting
2A Sutherland on Statutes and Statutory Construction § 47.33, at p.245 (4th ed. 1984))); see
also Antonin Scalia & Bryan A. Garner, Reading Law: the Interpretation of Legal Texts at
154 (2012) (stating that, under the “proviso canon,” a “proviso conditions the principal
matter that it qualifies—almost always the matter immediately preceding”).
Second, even assuming arguendo that these arguments are wrong—that the statute
governs “only transportation of a firearm in a vehicle,” Ass’n. of N.J. Rifle & Pistol Clubs
Inc., 730 F.3d at 255 (majority op.)—ATF still believes that some non-vehicle transportation
would be authorized under section 926A as incidental to the power to transport firearms in
vehicles. The power to do an act carries with it incidental powers necessary to the act. For
example, the right to keep and bear arms includes the right to purchase arms and
ammunition. See Andrews v. State, 50 Tenn. 165, 178 (1871). A right to have a lawyer under
the Sixth Amendment includes the right to pay that lawyer. See Luis v. United States, 578
U.S. 5, 27 (2016) (Thomas, J., concurring in the judgment). As Justice Thomas explained inLuis, “Constitutional rights thus implicitly protect those closely related acts necessary to their
exercise.” Id. at 26.
This statement is true not just for constitutional rights, but for statutory rights as well.
If federal law grants a right to do an act, it also grants the right to do those incidental acts
necessary to make one’s exercise of the right effective. Here, federal law already permits the
interstate transportation of firearms in vehicles and aboard commercial aircraft, provided the
firearms and ammunition are unloaded and not readily accessible or directly accessible from
the passenger compartment of the transporting vehicle (with a special rule for vehicles
without a separate compartment). 18 U.S.C. 926A (all vehicles); see also 49 U.S.C.
46505(d)(3) (aircraft baggage); 18 U.S.C. 922(e) (regulating firearms aboard all common or
contract carriers). If section 926A covers transporting a firearm in the trunk of a motor
vehicle and the baggage hold of a commercial aircraft, there are strong arguments that
section 926A also covers transferring the firearm between the car and the airplane. See
Stephen P. Halbrook, Firearms Law Deskbook, Section 4:9 (Oct. 2025 update) (In discussing
section 926A, “[t]he mode of transportation is not limited to any specific type and may
encompass motor vehicles, airlines, trains, and other forms. Activities incidental to
transportation, such as checking baggage with firearms at airports, stopping for fuel and
eating, and similar activities are protected.”). ATF, thus, seeks comment on this
understanding.
Courts attempting to determine the scope of section 926A have excessively narrowed
its application. In Revell v. Port Authority of New York and New Jersey, the plaintiff, a Utah
resident flying through New Jersey to Pennsylvania in 2005, missed his connecting flight and
was forced to collect his baggage and spend the night in a hotel. 598 F.3d 128, 130–31 (3d
Cir. 2010). The following morning, after declaring the unloaded firearm, he was arrested for
illegal possession of a handgun and ammunition under New Jersey law. Id. at 131. Revell
sued the arresting agency, Port Authority of New York and New Jersey, and the arrestingofficer under 42 U.S.C. 1983 alleging violations of his Fourth and Fourteenth Amendment
rights and appealed the subsequent district court’s decisions against him. Id. at 132–34.
Although the court recognized that Revell had been placed in “a difficult predicament
through no fault of his own” and had notified the airline about the firearm, the court found
Revell’s actions were beyond the scope of section 926A because “the gun and ammunition
were readily accessible to Revell during his stay in New Jersey.” Id. at 136–37. The court
further suggested that “[s]tranded” gun owners like Revell also had the option to go to airport
law enforcement or airport personnel before retrieving their luggage to request that they hold
their firearms overnight. Id. at 137–38. Such options, however, are not ordinarily available.
Airlines generally refuse to accept baggage more than a few hours before a flight,3 and
airport law enforcement does not customarily hold firearms, even for delayed passengers. In
fact, the court in Revell recognizes that the idea to go to airport law enforcement was merely
a “suggestion” and “this suggestion leaves unanswered the question of what the gun owner
should do if the law enforcement officers decline to assist him.” Id. at 138 n.18.
In a companion case, Ass’n of New Jersey Rifle & Pistol Clubs Inc., supra, the
Association sought injunctive relief pursuant to 42 U.S.C. 1983 to enjoin the Port Authority
of New York and New Jersey from enforcing certain New Jersey statutes that prohibit
possession of a firearm without a permit and possession of certain ammunition against non-
resident members of the Association who are entitled to transport firearms through New
Jersey pursuant to 18 U.S.C. 926A. 730 F.3d at 253. The Third Circuit affirmed the district
court’s denial of relief and held that “the statute protects only transportation of a firearm in a
3 American Airlines Check-in and Arrival, AMERICAN AIRLINES, https://www.aa.com/i18n/travel-info/check-in-
and-arrival.jsp [https://perma.cc/89HA-78C6] (listing airports with checked bag limits for more than four hours,
six hours, and eight hours); Delta Check-In Times at U.S. Airports, DELTA,
in#:~:text=All%20customers%20are%20required%20to,prior%20to%20scheduled%20departure%20time
[https://perma.cc/FX6A-NH83] (stating Delta will not accept baggage at the airport more than six hours prior to
the scheduled departure time).vehicle” and thus “an ambulatory plaintiff who intends to transit through Newark Airport is
outside the coverage of the statute.” Id. at 255.
The Revell and Ass’n of N.J. Rifle & Pistol Clubs opinions cited above create illogical
and unintended restrictions on a citizen’s right to transport firearms interstate in the Third
Circuit. The power to transport firearms in a continuous interstate journey via automobiles
and aircraft also includes the incidental power to transit the firearm from one mode of
transportation to the next. Indeed, individuals may find themselves transiting multiple
vehicles during an interstate trip.
Take, for example, persons traveling by car from Maine, which generally does not
require a permit to carry or possess firearms, to an airport in Massachusetts, a state requiring
such permits, and then flying to West Virginia, where a permit is generally not required. It is
clear that during any continuous travel by car, an individual meeting the conditions described
would fall within the ambit of section 926A. It is equally clear that 18 U.S.C. 922(e) and 49
U.S.C. 46505 authorize passengers to transport their firearms aboard commercial aircraft,
provided certain conditions are met. But under Third Circuit jurisprudence, section 926A
seemingly offers no protection if a person lands at an airport outside their jurisdiction of
origin, where they cannot possess or carry a firearm, but is delayed from boarding their flight
to their ultimate destination until the next day; this person is without protection under
926Afrom the time he exits the airport until the next day when he checks the firearm in
locked baggage to the airline in compliance with section 922(e). Congress sought to assure
the right of individuals to travel in and between states with a firearm in passing section 926A;
it is doubtful that Congress intended to open a window of criminal liability for travelers
stranded through no fault of their own.
Similarly, individuals could be temporarily stranded because of vehicle problems. A
person whose car breaks down or is involved in a car accident may have a need to transport a
firearm from the broken-down vehicle to a new vehicle that is functioning (e.g., a rental).Again, the best reading of section 926A—even a reading limited to vehicular carry—is that
the power to travel interstate includes incidental acts that are reasonably necessary to
facilitate that travel. These acts include stopping for fuel or rest or picking up or discharging
passengers; otherwise, the statute would ignore the realities of interstate travel and protect
only those fortunate enough to have an interstate journey that required no refueling or rest.
Similarly, the power to transport firearms and ammunition includes incidental acts, such as
the power to transport ammunition magazines that feed the ammunition into the firearm.
The doctrine of constitutional avoidance also supports this conclusion. Both the Third
Circuit decisions narrowing section 926A were decided before New York State Rifle & Pistol
Ass’n v. Bruen, 597 U.S. 1 (2022), where the Supreme Court specifically recognized the
Second Amendment’s protection to firearms possession outside of the home. While neither
of the above opinions addressed the Second Amendment, their interpretation of section 926A
may not comport with the Supreme Court’s precedent on the Second Amendment, including
Bruen’s recognition that the right extends to publicly carrying firearms for self-defense. If
individuals have a right to carry loaded, accessible firearms for self-defense at their places of
origin and destination, it necessarily follows that they have, at a minimum, a right to
transport unloaded firearms for self-defense and other lawful purposes at their place of
destination. An excessively narrow interpretation of section 926A would not protect travelers
from state or local laws that infringe on their right to bear arms. See United States v. Rahimi,
602 U.S. 680, 692 (2024) (“Even when a law regulates arms-bearing for a permissible
reason, though, it may not be compatible with the right if it does so to an extent beyond what
was done at the founding.”); cf. Higbie v. James, 795 F. Supp. 3d 307, 342–343 (N.D.N.Y.
2025) (holding that New York cannot exclude nonresidents from applying for a carry license
in New York). As one commentator (who shares the Bruen dissent’s restrictive
understanding of the right to bear arms in public) explains, “the general rule was that the law
must be flexible enough to allow individuals some means to transport their firearms forlawful purposes, especially during travels from one destination to another.” Patrick J.
Charles, The Second Amendment and the Basic Right to Transport Firearms for Lawful
Purposes, 13 Charleston L. Rev. 125, 150 (2018).
The proposed rule, thus, responds to the lack of clarity surrounding the interstate
transportation of firearms and aims to prevent law-abiding persons from facing travel delays
or arrest despite complying with ATF’s reading of section 926A. See Torraco v. Port Auth. of
N.Y. & N.J., 539 F. Supp. 2d 632 (E.D.N.Y. 2008); Revell v. Port Auth. of N.Y. & N.J., 598
F.3d 128 (3d Cir. 2010). Litigation in the wake of these instances has resulted in an overly
narrow and burdensome application of the statute.
II. Proposed Rule
Based on current case law addressing section 926A regarding the right of a citizen to
travel interstate with a firearm as well as cases recognizing that the Second Amendment, in
part, secures the right to bear arms in public, ATF believes it is imperative to clarify the
intended scope of section 926A in the accompanying regulation. Accordingly, the proposed
rule amends 27 CFR 478.38 to clarify that incidental activities that are reasonably necessary
to a person’s interstate transportation are considered “transport” and thus within the scope of
activities protected by 18 U.S.C. 926A and 27 CFR 478.38. This would include, but not be
limited to, staying in temporary lodging overnight, stopping for food, fuel, vehicle
maintenance, an emergency, medical treatment, transiting between modes of transportation,
or moving a firearm at the beginning of a journey from a fixed address to a vehicle for
transportation or at the end of a journey from a vehicle to a fixed address. Because section
926A provides a “safe harbor” for travelers and “[a]ny regulatory preemption of State law
shall be restricted to the minimum level necessary to achieve the objectives of the statute
pursuant to which the regulations are promulgated,” see E.O. 13132(4)(c), the proposed rule
only protects reasonably necessary incidents of travel, such as stopping for fuel or temporary
rest. The rule does not authorize, however, someone to have an extended break intransportation, for reasons unrelated to travel, in a jurisdiction where possession of the
firearm or ammunition would be prohibited.
To ensure firearms are stored or transported in a manner consistent with sections
926A or 922(e), as the case may be, the proposed rule lays out the storage provisions
depending on the mode of transportation (e.g., by vehicle, by common or contract carrier)
during travel. Additionally, the proposed rule addresses storage where there is an activity
incidental to the original transportation that requires a break in continuous transit (e.g., an
overnight stay at a hotel), and storage in a vehicle is not possible. In this scenario, the
proposed rule would stipulate that the firearm must be unloaded and must be in a locked
container that makes it and any ammunition not readily accessible for immediate use. This is
consistent with section 926A’s admonition that “during such transportation the firearm is
unloaded, and neither the firearm nor any ammunition being transported is readily
accessible.”
Additionally, the proposed rule would make clear that the right to transport firearms
also includes the concomitant incidental right to transport accessories and attachments of
such firearms, such as ammunition, sights, and magazines. ATF believes this is the best
interpretation of section 926A. Section 926A would not serve its intended purpose if state
and local governments could indirectly restrict the transportation of firearms by enforcing
transportation restrictions of items that are constituent parts and accessories of the firearms
being transported, including ammunition and firearm magazines. Indeed, section 926A
already implies that ammunition is covered by the entitlement to transport firearms when it
states, “and neither the firearm nor any ammunition being transported is readily accessible or
is directly accessible from the passenger compartment of such transporting vehicle: Provided,
that in the case of a vehicle without a compartment separate from the driver’s compartment
the firearm or ammunition shall be contained in a locked container other than the glove
compartment or console.” It would be a strange interpretation if federal law authorized thetransportation of the firearm and the ammunition, but not the magazine that would feed the
ammunition into the firearm. And the same impracticalities would apply to other accessories
such as firearm sights.
The incidental power granted by this section would only apply to the transportation of
lawfully possessed accessories. Accessories would not fall within the incidental protection
offered by section 926A and this regulation if they were illegal under federal law (e.g., an
unregistered machinegun conversion device, see 18 U.S.C. 922(o)), or if they were illegal at
the place of origin or destination. For example, a person could not claim protection by
transporting a magazine over ten rounds of ammunition if his place of destination forbade
such accessories.
Finally, this rule would include a severability paragraph in 27 CFR 478.38. Because
the full scope of a person’s incidental power to transport firearms, ammunition, and
accessories in interstate commerce has not been elucidated through judicial review, the
severability paragraph would provide that any invalid part of the regulation or any invalid
application of the regulation should be severed and the remainder of the regulation would not
be affected. This inclusion of the severability paragraph in section 478.38 should not be
construed to suggest that other regulations in part 478 are inseverable. ATF has included (or
intends to include) a severability discussion in the preamble of other proposed rules. The
explicit severability paragraph in this section should not create a negative severability
inference for any other rule or regulation.
III. Statutory and Executive Order Review
A. Executive Orders 12866 and 13563
Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess
the costs and benefits of available regulatory alternatives and, if regulation is necessary, to
select regulatory approaches that maximize net benefits.Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes
the importance of agencies quantifying both costs and benefits, reducing costs, harmonizing
rules, and promoting public flexibility.
This rule proposes to amend 27 CFR 478.38 to clarify the scope of 18 U.S.C. 926A in
order to make clear that it covers the activities and breaks that are incidental to the original
transportation and decreases the likelihood that a person traveling with their firearm or
ammunition interstate will be charged for violating state firearm laws.
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 clarifying how to comply with statutory
provisions and existing standards on transporting firearms and ammunition interstate.
However, 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 imposetotal costs greater than zero. In addition, ATF expects this rule, if finalized as proposed, to
qualify as an Executive Order 14192 deregulatory action (defined in OMB Memorandum M-
25-20 as a final action that imposes total costs less than zero).
C. Executive Order 14294
Executive Order 14294 (Fighting Overcriminalization in Federal Regulations)
requires agencies promulgating regulations with criminal regulatory offenses potentially
subject to criminal enforcement to explicitly describe the conduct subject to criminal
enforcement, the authorizing statutes, and the mens rea standard applicable to each element
of those offenses. This proposed rule would not create a criminal regulatory offense and is
thus exempt from Executive Order 14294 requirements.
D. Executive Order 13132
ATF has concluded that this rulemaking may have some federalism implications as
provided in Executive Order 13132 (Federalism) because it implements 18 U.S.C. 926A’s
statutory preemption provision, which creates a safe harbor for individuals transporting their
firearm for a lawful purpose from any place where they may lawfully possess and carry such
firearm to any other place they may lawfully possess and carry such firearm regardless of any
other provision of law or regulation of a state or any political subdivision. Nevertheless, this
proposed rule abides by the principle of section 4(c) of Executive Order 13132, which states
that “[a]ny regulatory preemption of State law shall be restricted to the minimum level
necessary to achieve the objectives of the statute pursuant to which the regulations are
promulgated.” The proposed rule protects incidental activities that are reasonably necessary
to a person’s transport—for example, as stated above, food, fueling, lodging, an emergency,
or medical treatment, or an unscheduled overnight stop due to airline or weather
disruptions—consistent with section 926A’s safe harbor provision.
ATF believes that rule would restrict preemption of state law to the minimum level
necessary to achieve the objectives of section 926A as described above and that it would notimpose a financial cost to state or local agencies. Further, ATF anticipates that this rule
would provide qualitative benefits to the public by providing the best reading of the federal
provisions and clarifying how individuals may lawfully transport their firearms and
ammunition interstate. However, ATF recognizes that some states may have more restrictive
laws that could be impacted by this rule, but ATF does not have sufficient information to
assess the scope of state regulation or the costs on states that could be impacted. Therefore,
ATF is soliciting comments from state and local governments on any potential preemption
impacts stemming from ATF’s proposed interpretation of section 926A’s safe harbor
provision.
ATF notes that it had an opportunity to inform some state officials of this proposed
rule during a Federal Bureau of Investigation Criminal Justice Information Service System
Officers meeting and encouraged them to comment on any potential federalism impacts that
the rule might have on states. One state representative commented that section 926A should
extend to overnight breaks in travel to accommodate rest breaks. ATF agreed and has
included overnight breaks in this proposed rule.
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, 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 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 because it would not
impose any additional costs and only clarifies the provisions of 18 U.S.C. 926A, which
concern the rights of individuals who are lawfully transporting firearms and ammunition
interstate.
G. Unfunded Mandates Reform Act of 1995
This proposed rule does not include a federal mandate that might result in the
expenditure by state, local, and tribal governments, in the aggregate, or by the private sector,
of $100 million or more in any one year, and it 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.
H. Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (“PRA”), 44 U.S.C. 3501–3521,
agencies are required to submit to OMB, for review and approval, any information collection
requirements a rule creates or any impacts it has on existing information collections. An
information collection includes any reporting, record-keeping, monitoring, posting, labeling,
or other similar actions an agency requires of the public. See 5 CFR 1320.3(c). This proposed
rule 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 madeeasier 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-AA73 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 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-AA73. 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 it
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. IfATF 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 you have successfully uploaded 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 and 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 https://www.regulations.gov (search for RIN
1140-AA73).
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
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. Revise § 478.38, including its heading, to read as follows:
§ 478.38 Transporting firearms, ammunition, and accessories between states.
(a) Notwithstanding any other provision of any law or any rule or regulation of a state
or any political subdivision thereof, any person who is not otherwise prohibited by chapter 44
of title 18, United States Code, from transporting, shipping, or receiving a firearm is entitled
to transport a firearm for any lawful purpose from any place where such person may lawfully
possess and carry such firearm to any other place where such person may lawfully possess
and carry such firearm, consistent with paragraph (b) of this section. The right to transport
firearms under this section also includes the right to transport ammunition and accessories for
the firearm consistent with paragraph (b) of this section. Protected transportation under this
section includes reasonably necessary activities incidental to interstate travel, such as staying
in temporary lodging overnight, transiting between modes of transportation, stopping forfood, fuel, vehicle maintenance, an emergency, or medical treatment, picking up or
discharging passengers, moving a firearm at the beginning of a journey from a fixed address
to a vehicle for transportation or at the end of a journey from a vehicle to a fixed address, and
any other activity incidental to the original transportation.
(b) When transporting firearms under this section:
(1) Firearms and ammunition in a vehicle must comply with the conditions set forth
in 18 U.S.C. 926A. When a person is transporting a firearm in a vehicle, the firearm must be
unloaded, and neither the firearm nor any ammunition being transported may be directly
accessible from the passenger compartment of the vehicle. If the vehicle is without a
compartment separate from the driver’s compartment, the firearm or ammunition must be
contained in a locked container other than the glove compartment or console.
(2) If the journey includes transporting firearms or ammunition by a common or
contract carrier, persons must also comply with 18 U.S.C. 922(e), 27 CFR 478.31, and, for
travel aboard commercial aircraft, 49 U.S.C. 46505(d)(3).
(3) If the journey requires a break in continuous transit (e.g., an overnight stay in a
hotel) that is reasonable in the circumstances and it is not possible to store the firearm in the
vehicle, the person must store the unloaded firearm and ammunition in a locked container so
they are not readily accessible for immediate use.
(4) A person switching between vehicles or modes of transportation shall keep the
firearm unloaded and keep it and any ammunition in a locked container so they are not
readily accessible for immediate use.
(5) A person does not lose 18 U.S.C. 926A’s in-transit protection by presenting the
firearm or ammunition for inspection when required by a common carrier, the Transportation
Security Administration, or U.S. Customs and Border Protection.
(6) Individuals also have the right to transport attachments, accessories, or other
instruments for the firearms they are transporting, including, but not limited to, ammunition(regardless of bullet type), scopes, sights, optics, stocks, grips, stabilizing braces, mounts,
weapon-mounted lights, multifunction aiming lights, magazines, clips, feed strips, any other
ammunition feeding device, holsters, slings, and firearm cleaning kits. Any such item the
person transports must be lawful under federal law and must also be lawful in both the place
where travel began and at the destination. To have the transportation rights conferred by this
paragraph and by 18 U.S.C. 926A for an attachment, accessory, or other instrument, any such
item being transported with the firearm must be transported in the manner provided by
paragraph (b)(1), (b)(3), or (b)(4), as applicable.
(c) If any portion of this section, or its application to any person or any circumstance,
is held invalid, the remainder of this section and the application of such portion to other
persons not similarly situated or to other circumstances shall not be affected. The existence
of an explicit severability clause in this paragraph shall not be construed as an indication that
any other section in part 478, portion of such sections, or application of such sections or
portions to any person or in any circumstance are not similarly severable.
Robert Cekada,
Director.