[Federal Register Volume 91, Number 14 (Thursday, January 22, 2026)]
[Rules and Regulations]
[Pages 2698-2708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-01141]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 478
[Docket No. ATF-2026-0034; ATF No. 2025R-54T]
RIN 1140-AB03
Revising Definition of ``Unlawful User of or Addicted to
Controlled Substance''
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Department of Justice.
ACTION: Interim final rule; request for comments.
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SUMMARY: The Bureau of Alcohol, Tobacco, Firearms, and Explosives
(``ATF'') is amending Department of Justice (``Department'')
regulations to update the definition of ``unlawful user of or addicted
to any controlled substance,'' a category of persons who may not
possess firearms under federal law. This definition was established in
1996 to facilitate operation of the National Instant Criminal
Background Check System. Since then, court decisions and ATF internal
guidance have evolved to include recurring use as a factor. As a
result, ATF is aligning the definition with the best statutory
understanding, as informed by judicial decisions.
DATES: This interim final rule (``IFR'') is effective on January 22,
2026. Comments must be submitted in writing, and must be submitted on
or before (or, if mailed, must be postmarked on or before) June 30,
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. ATF will publish a final rule in
the Federal Register adopting the IFR as final with any changes in
response to public comments or adopting the IFR as final without
change.
ADDRESSES: You may submit comments, identified by RIN 1140-AB03, 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: RIN 1140-AB03.
Instructions: All submissions must include the agency name and
number (RIN 1140-AB03) for this IFR. ATF may post all properly
completed comments it receives 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 or in any
uploaded attachments that they want posted. If online commenters wish
to submit PII with their comment, they should place it in a separate
attachment and mark it at the top with the marking ``CUI//
[[Page 2699]]
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. You may find a
summary of this rule 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 [email protected], 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
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 IFR 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
GCA, National Firearms Act, and Title XI of the Organized Crime
Control Act. ATF's jurisdiction also includes the Arms Export
Control Act and the Contraband Cigarette Trafficking Act.
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The GCA, in 18 U.S.C. 922(g)(3), states that it is unlawful for
any person who is an unlawful user of or addicted to any controlled
substance (as defined by section 102 of the Controlled Substances Act
at 21 U.S.C. 802) to ship, transport, possess, or receive any firearm
that has moved through interstate or foreign commerce. In other words,
persons who are unlawful users of or addicted to a controlled substance
constitute one category of what are commonly referred to as
``prohibited'' persons in the context of firearms. The plain language
of the text indicates that the person must be a current unlawful user
of a controlled substance, contemporaneous to possessing the firearm.
After the GCA was passed in 1968, federal courts addressed the
meaning of ``unlawful user'' and recognized the distinction between
``use'' and ``addiction.'' One court observed that ``the statute
prohibits a person who is either an unlawful user of or addicted to a
controlled substance from purchasing firearms.'' \3\ Another court
noted that if the defendant's use of heroin had been infrequent or in
the distant past, the term ``unlawful user'' would be subject to a
vagueness challenge.\4\
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\3\ United States v. Corona, 849 F.2d 562, 563 n.2 (11th Cir.
1988) (emphases in original).
\4\ United States v. Ocegueda, 564 F.2d 1363, 1366 (9th Cir.
1977).
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ATF proposed a regulatory definition of unlawful user, together
with other regulatory definitions on the prohibited person categories,
in 1996 to facilitate operating the National Instant Criminal
Background Check System (``NICS''), as required by the Brady Handgun
Violence Prevention Act, Public Law 103-159 (1993).\5\ The definition
of ``unlawful user'' utilized definitions from both the Americans with
Disabilities Act, Public Law 101-336 (1990); and the Controlled
Substances Act, Public Law 91-513 (1970),\6\ and the proposed rule
included some of the current regulations' factual examples that give
rise to an inference of being an unlawful user.\7\
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\5\ See Definitions for the Categories of Persons Prohibited
From Receiving Firearms (95R-051P), 61 FR 47095, 47096, 47098 (Sep.
6, 1996) (proposed rule).
\6\ Id. at 47096 (explaining that the proposed definition of
``unlawful user of or addicted to any controlled substance'' is
consistent with similar terms used in 18 U.S.C. 802, 42 U.S.C.
12101-12213, and 21 U.S.C. 802).
\7\ Id. at 47099 (``An inference of current use may be drawn
from evidence of a recent use or possession of a controlled
substance or a pattern of use or possession that reasonably covers
the present time, e.g., a conviction for use or possession of a
controlled substance within the past year, or multiple arrests for
such offenses within the past five years if the most recent arrest
occurred within the past year.'').
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Thereafter, in June 1997, ATF published implementing regulations at
27 CFR 478.11, further defining the term ``unlawful user of or addicted
to any controlled substance'' to provide more clarity.\8\ The
regulatory definition first clarified that the two prongs of the
definition consist of (1) persons who use a controlled substance and
have ``lost the power of self-control with reference to the use'' of
the substance, and (2) persons who are ``current user[s]'' of a
controlled substance ``in a manner other than as prescribed by a
licensed physician.'' The definition then clarified the temporal
component by stating that ``use'' of the controlled substance is not
limited to a particular day or within a matter of days or weeks before
shipping, transporting, receiving, or possessing a firearm, but rather
that ``the unlawful use has occurred recently enough to indicate that
the individual is actively engaged in such conduct'' and that the
person can be an unlawful current user even if the substance is ``not
being used at the precise time the person seeks to acquire a firearm or
receives or possesses a firearm.'' The regulation further clarified
that inferences of ``current use'' may arise from ``evidence of a
recent use or possession'' of the substance or ``a pattern of use or
possession that reasonably covers the present time'' and provided
examples from which a person may draw an inference of current use,
including:
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\8\ See Definitions for the Categories of Persons Prohibited
From Receiving Firearms (95R-051P), 62 FR 34634 (June 27, 1997)
(``1997 final rule'').
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a conviction for use or possession within the past year;
multiple arrests for such offenses within the past five
years if the most recent arrest occurred within the past year;
a drug test finding the person used a controlled substance
unlawfully, provided the test was within the past year; or
for current or former Armed Forces members, a recent
disciplinary or other administrative action based on confirmed drug use
(including a court-martial conviction, non-judicial punishment, or
administrative discharge based on drug use or rehabilitation failure).
The 1997 final rule added factual examples supporting an inference
of current use, as recommended by certain Department components other
than ATF, as well as the Department of Defense. These additions
included inferences based on a positive drug test within the past year
and military nonjudicial or administrative actions based on drug use
\9\--both of which could result from a single unlawful use.
[[Page 2700]]
The regulatory definition thus described what ATF at the time
understood the term ``unlawful user'' to mean and, as relevant here, it
included an understanding that a single incident of unlawful use could
make a person an ``unlawful user.''
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\9\ 1997 final rule at 34636.
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Thereafter, without exception, federal courts in the early 2000s
agreed that, to put defendants on notice that they are unlawful users
pursuant to the GCA, ``one must be an unlawful user at or about the
time he or she possessed the firearm and that to be an unlawful user,
one needed to have engaged in regular use over a period of time
proximate to or contemporaneous with the possession of the firearm.''
\10\ Under this analysis, federal courts consistently upheld
convictions in which there was evidence that an individual used
controlled substances on a regular basis, establishing a pattern of
use.\11\ For example, courts have upheld convictions in which the
defendant admitted to smoking marijuana twice a day for many years;
\12\ the suspect admitted he had been using the drug in question for
two years; \13\ and a user-quantity amount of amphetamine was found on
a table in the defendant's residence, where he lived alone, and
testimony established the defendant frequently used drugs with his
customers.\14\
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\10\ United States v. Augustin, 376 F.3d 135, 139 (3d Cir.
2004).
\11\ See United States v. Burchard, 580 F.3d 341, 352-53 (6th
Cir. 2009) (testimony that defendant smoked crack on numerous
occasions for one year prior to arrest for violation of section
922(g)(3)); United States v. Mack, 343 F.3d 929, 932-33 (8th Cir.
2003) (evidence of unlawful use sufficient where defendant possessed
user-quantity of marijuana at the time of his arrest and arresting
officers smelled marijuana, and where one month earlier defendant
had confronted witness about theft of his marijuana and fired a gun
into the air).
\12\ United States v. Jackson, 280 F.3d 403, 406 (4th Cir.
2002).
\13\ United States v. Patterson, 431 F.3d 832, 835 (5th Cir.
2005).
\14\ United States v. Oleson, 310 F.3d 1085, 1090 (8th Cir.
2002).
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Courts also issued decisions in the early 2000s regarding the other
end of the unlawful-user boundary. They held that an individual may not
be convicted of violating 18 U.S.C. 922(g)(3) when the government is
able to prove only a single use of a controlled substance instead of
regular use.\15\ For example, the Ninth Circuit held that, ``to sustain
a conviction'' under section 922(g)(3), the government ``must prove . .
. that the defendant took drugs with regularity, over an extended
period of time, and contemporaneously with his purchase or possession
of a firearm.'' \16\ The Eighth Circuit noted that ``courts generally
agree the law runs the risk of being unconstitutionally vague without a
judicially-created temporal nexus between possessing the gun and
regular drug use.'' \17\ The federal circuits that have weighed in on
this issue have held that the government must prove some regularity of
drug use in addition to contemporaneousness to meet the statute's
requirements.\18\
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\15\ See United States v. Williams, 216 F. Supp. 2d 568, 576
(E.D. Va. 2002) (motion for judgment of acquittal must be granted
where there is no evidence suggesting a pattern of use, continuous
use, or prolonged use of a controlled substance on the part of the
defendant); United States v. Freitas, 59 M.J. 755, 757-58 (N-M. Ct.
Crim. App. 2004) (where the government proves only a single use of
marijuana by service member, the record lacks an adequate factual
basis to substantiate that the appellant was an ``unlawful user''
under section 923(d)(3)); United States v. Herrera, 289 F.3d 311,
323-24 (5th Cir. 2002), rev'd en banc on other grounds, 313 F.3d 882
(5th Cir. 2002) (irregular use of cocaine and past use of marijuana
was insufficient evidence to establish that appellant was a
prohibited person under section 923(g)(3)).
\16\ United States v. Purdy, 264 F.3d 809, 812-13 (9th Cir.
2001).
\17\ United States v. Turnbull, 349 F.3d 558, 561 (8th Cir.
2003), cert. granted, judgment vacated on other grounds, 543 U.S.
1099 (2005).
\18\ See e.g. United States v. Marceau, 554 F.3d 24, 30-31 (1st
Cir. 2009); United States v. Yepez, 456 F. App'x 52, 54-55 (2d Cir.
2012); Augustin, 376 F.3d at 138-39; Jackson, 280 F.3d at 406;
United States v. McCowan, 469 F.3d 386, 392 (5th Cir. 2006);
Burchard, 580 F.3d at 350; United States v. Bennett, 329 F.3d 769,
778 (10th Cir. 2003) (noting ``a regular and ongoing use''); United
States v. Edmonds, 348 F.3d 950, 951 (11th Cir. 2003).
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Since ATF published the 1997 final rule, the Federal Bureau of
Investigation (``FBI''), in operating NICS, has relied on the inference
examples in the regulatory definition of unlawful user. The NICS
Section concluded, with ATF's concurrence, that the FBI could draw an
inference of a person currently using or possessing a controlled
substance from evidence of a recent incident, and that ATF's regulation
indicated that the relevant time period was ``within the past 12
months.'' Based upon those historical factors, NICS examiners have, for
example, found prohibited use when, within the past year, the person
has had a drug conviction for using or possessing; admitted to using or
possessing; had any positive drug test, or was convicted of a
misdemeanor crime involving drugs.
The NICS Section also advised federal, state, local, and tribal
NICS users that they could temporarily enter identifying information
about individuals fitting such conditions into the NICS Indices.\19\
These Indices contain information provided by federal, state, local,
and tribal agencies on actions that could cause a person to be
prohibited from receiving firearms under federal or state law.\20\ As
of December 31, 2025, there were 54,136 entries in the NICS Indices
designated as ``unlawful user/addicted to controlled substance,'' out
of a total of 34,036,267 active entries in the NICS Index alone (one of
the three systems that make up the Indices).\21\
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\19\ The NICS background-check process encompasses information
from the NICS Index, the National Crime Information Center, and the
Interstate Identification Index. See 28 CFR 25.2, 25.4. The FBI, and
therefore this rule, refers to these databases as the ``NICS
Indices.'' The ``NICS Indices'' was originally termed the ``NICS
Index.'' The NICS Index is now ``the database, to be managed by the
FBI, containing information provided by federal and state agencies
about persons prohibited under federal law from receiving or
possessing a firearm. The NICS Index is separate and apart from the
[National Crime Information Center (NCIC)] and the Interstate
Identification Index (III).'' 28 CFR 25.2.
\20\ FBI Criminal Justice Information Services Division
(``CJIS''), Quick Reference Information, (Dec. 31, 2024), https://www.fbi.gov/file-repository/cjis/download-active-entries-in-the-nics-indices-as-of-december-31-2023.pdf.
\21\ FBI CJIS, Active Entries in the NICS Indices (last updated
Dec. 31, 2025), https://www.fbi.gov/file-repository/cjis/active_records_in_the_nics-indices.pdf/view. These numbers represent
a snapshot in time because records are constantly moving in and out
of the system as federal and state agencies add or remove records
based on prohibiting criteria in 18 U.S.C. 922. The FBI NICS Section
updates the metrics on a monthly basis. This section runs a report
showing the total entries in the NICS Indices at that time, and
which prohibited category was involved, for tracking purposes.
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Under 18 U.S.C. 922(t)(1), federal firearms licensees must
generally contact NICS prior to transferring a firearm to a purchaser.
Based on ATF's current regulatory definition and NICS's implementing
criteria, NICS may deny transfers to certain firearm purchasers based
on NICS Indices entries indicating the persons admitted they used or
possessed unlawful drugs a single time within the past year. In such
cases, NICS notifies the licensee that the transfer is prohibited or
``denied.'' See 28 CFR 25.6. However, if the licensee does not receive
such notification from NICS within three business days, federal law
says the licensee may generally transfer the firearm to the purchaser
the next day. In a situation in which NICS determines that the
purchaser is prohibited after the firearm has been transferred
(``delayed denial''), the FBI refers the case to ATF's Denial
Enforcement and NICS Intelligence Branch (``DENI'') to potentially
investigate and retrieve the firearm from the prohibited purchaser.
Since the 1997 final rule, ATF's internal practices and guidance
have evolved within the boundaries established by court decisions like
those described above. For example, each of ATF's field divisions, in
conjunction with the local United States Attorney's Office (``USAO''),
establishes referral
[[Page 2701]]
guidelines to reflect the USAO's current policies. Accordingly, the ATF
Special Agent in Charge of each field division reviews the referral
guidelines annually with the relevant USAO. In those referral
guidelines, ATF states that most kinds of single ``inference of use''
denials (i.e., admitted use, admitted possession, positive drug test,
or a single drug arrest in the past year) should not be referred to
field offices for prosecution or to retrieve a purchased firearm. This
guideline also generally applies to firearms forfeiture because field
divisions do not retrieve or seize firearms based on evidence of a
single unlawful use. Since approximately April 2018, DENI policy has
been to not refer delayed denials or standard denials based on the
kinds of inferences arising from a single incident of drug use listed
above. However, DENI has referred an 18 U.S.C. 922(g)(3) denial to a
field office if the purchaser has a misdemeanor drug conviction within
the past year or multiple drug arrests in the past five years with at
least one of those arrests being in the past year.
As a result, ATF field divisions receiving NICS delayed-denial
referrals based on single-use situations have often determined that,
contrary to the regulatory inferences in 27 CFR 478.11, a single
incident is insufficient evidence on which to pursue a violation under
18 U.S.C. 922(g)(3). In fiscal year (``FY'') 2025, NICS denied
approximately 9,163 transfers under an 18 U.S.C. 922(g)(3) prohibitor
due to records of drug-related incidents. Of this number, ATF did not
refer 8,893 cases for further investigation. Of the ones that ATF did
not refer further, 8,697 cases were standard denials (no firearm was
transferred), and the remaining 196 cases were delayed denials (a
firearm was transferred before the denial notification arrived from
NICS). Of the cases that ATF did refer for further investigation, 120
were standard denials (i.e., although the person did not receive the
firearm, the person was referred for other reasons, such as repeated
efforts to purchase a firearm while prohibited), and 130 were delayed
denials. Table 1 shows these numbers.
Table 1--FY 2025 NICS Denials Under 18 U.S.C. 922(g)(3) Unlawful User Prohibition
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Total FY 2025 NICS denials under 18 U.S.C. Standard Delayed
922(g)(3) Disposition Totals denials denials
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9,163..................................... Not referred by ATF for 8,893 8,697 196
further action.
Referred by ATF for further 250 120 130
action.
Overturned, cancelled, etc... 29 n/a n/a
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Total by denial type...... ........... 8,817 326
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Therefore, of the 9,163 cases, 8,947 (8,697 + 120 + 130 in Table 1)
resulted in a person not receiving a firearm either through standard
denials (8,817) or delayed denials in which ATF retrieved the firearm
(120). Of the 326 cases NICS referred to ATF as delayed denials under
an 18 U.S.C. 922(g)(3) prohibition, ATF pursued only 130 for further
investigation, firearms forfeiture, or prosecution (which included 80
based on a single misdemeanor conviction). ATF did not pursue the
remaining 196 delayed denial cases because they involved an inference
based on a single use that did not involve a conviction (such as an
admitted use, admitted possession, or positive drug test in the past
year). Table 2 shows the inference break-down numbers for each type of
denial.
Table 2--FY 2025 Single-Incident Inference Denials by Type
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Delayed denials Delayed denials
Inference (1x during last year) Standard denials not referred referred
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Admitted drug use...................................... 1,032 86 0
Admitted drug possession............................... 853 54 0
Positive drug test..................................... 881 60 0
Misdemeanor drug use conviction........................ 2,018 9 80
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Totals by denial type.............................. 4,784 209 80
Adjusted totals by denial type *....................... 4,284 196 80
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Total inference denials............................ 4,560 .................
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* Totals adjusted to account for duplicates (persons with more than one category for the same incident).
As illustrated by Tables 1 and 2, and as described above regarding
the number of overall NICS entries, in FY25, out of the millions of
NICS checks that occurred, approximately 9,163 checks resulted in a
``denied'' response from NICS due to unlawful-user status. From among
that number, approximately 4,364 persons were denied a firearm in FY25
based on the single-use inferences in ATF's regulations (approximately
4,560 single-use ``denied'' responses-196 who got firearms (ATF did not
retrieve them because the denial was based on a single-use inference) =
approximately 4,364 denied firearms).
Concurrently, court decisions have continued to emphasize the
element of habitual or regular use. Between 2019 and 2025, for example,
the Fourth, Sixth, Seventh, Eighth, and Tenth Circuits \22\
consistently found that the government must prove some variation of the
concept ``that the defendant took drugs with regularity, over an
extended
[[Page 2702]]
period of time, and contemporaneously with his purchase or possession
of a firearm'' \23\ and that there must be a ``temporal nexus'' to
``regular and ongoing'' drug use.\24\
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\22\ See, e.g., United States v. Davey, 151 F.4th 1249, 1255
(10th Cir. 2025) (``temporal nexus'' between regular drug use and
firearm possession); United States v. Seiwert, 152 F.4th 854, 861
(7th Cir. 2025) (``active and persistent drug users''); United
States v. Hasson, 26 F.4th 610, 615 (4th Cir. 2022) (section
922(g)(3) prohibits the ``possession of firearms by an individual
whose drug use is consistent, prolonged, and close in time to his
firearm possession''); United States v. Carnes, 22 F.4th 743, 748
(8th Cir. 2022) (``[W]e interpreted Sec. 922's `unlawful user'
element to require a temporal nexus between the proscribed act (for
Sec. 922(g)(3), possession of a firearm) and regular drug use.'').
\23\ United States v. Bowens, 938 F.3d 790, 793 (6th Cir. 2019)
(internal citations omitted).
\24\ United States v. Morales-Lopez, 92 F.4th 936, 945-46 (10th
Cir. 2024).
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II. Interim Final Rule (IFR)
A. Discussion
Based on the foregoing, a disconnect has arisen between NICS
firearm purchase determinations, ATF enforcement, and court decisions
on what the definition of an unlawful user means. Relying on the
inferences from ATF's current regulation, NICS denies transfers for
those individuals who have, for example, a single admission of drug use
in the past year, or a single failed drug test for an unlawfully used
controlled substance within the previous year. This means that if a
person has been documented as using a controlled substance illicitly
even one time in the past 12 months, the person will be deemed
temporarily prohibited under 18 U.S.C. 922(g)(3) from purchasing a
firearm for a year from the underlying event. As Tables 1 and 2 above
show, of the 8,817 standard NICS denials in which a person did not
receive a firearm due to an 18 U.S.C. 922(g)(3) prohibition, 4,284 were
predicated on an inference based on a single use. In addition, of the
326 delayed denials, ATF referred 80 of them based on a single
misdemeanor conviction involving drugs, for a total of 4,634 persons
who did not receive a firearm. As indicated by ATF's enforcement
practice and by the court decisions discussed above, such denials do
not reflect the best understanding of section 922(g)(3). In addition,
such denials create unnecessary constitutional questions. See Ocegueda,
564 F.2d at 1366 (noting that section 922(g)(3) would create vagueness
issues if construed to deny a firearm to those whose drug use was
``infrequent and in the distant past''). The prevailing opinion of many
federal courts is that such denials are no longer supported under
section 922(g)(3) and create unnecessary constitutional questions.
Accordingly, it would be inappropriate to retain inference examples
in the regulatory definition which suggest that an admission or other
evidence of a single use-related event--including a single conviction
or a single failed drug test--occurring in the past 12 months is
sufficient evidence upon which to base an administrative forfeiture, to
prosecute an individual for unlawfully possessing a firearm under
section 922(g)(3), or to deny a firearm transaction. This type of
determination must be made based on evidence that indicates an
individual regularly uses a controlled substance unlawfully. The
current inference examples result in denied transactions that are not
consistent with the prevailing interpretation of 922(g)(3).
Based on the current case law, it is appropriate to remove the
inference examples of ``current use'' to instead require evidence of a
pattern of unlawful use. The current inferences establish bright line
rules for an inquiry that should be determined on a case-by-case basis.
Also, the current inferences create confusion for those, like law
enforcement organizations, courts, NICS users, and persons possessing
firearms, who rely upon the current regulation's provisions. As a
result, ATF is revising its definition of ``unlawful user of or
addicted to any controlled substance.'' Removing the inference examples
will help reduce confusion for NICS determinations, will prevent
erroneous NICS denials for people possessing firearms, and will better
align ATF's regulations with the best interpretation of section
922(g)(3). Future section 922(g)(3) NICS determinations that deny
firearm transactions, and future ATF enforcement decisions, will
therefore require evidence of regular and recent use.
In addition, ATF is also removing the other examples included in
the current regulation. Currently, the regulation covers ``a conviction
for use or possession of a controlled substance within the past year'';
``multiple arrests for such offenses within the past 5 years if the
most recent arrest occurred within the past year''; and failing a drug
test establishing a person used a controlled substance, ``, provided
that the test was administered within the past year.'' The regulation
also includes a separate sentence with examples for members of the
Armed Forces that contains both single-use inference examples and
others. ATF is removing both sets of examples, even those that do not
involve single-use inferences. During the course of assessing the
single-use inference examples in light of court decisions and
operational practices, ATF found that the other examples were often
being intertwined with the single-use ones or had aspects that relate
to questions about single-use decisions. For instance, the regulatory
example for multiple arrests within the past five years if the most
recent arrest occurred within the past year sometimes includes one
event from five years ago and another from the current year. Such a
fact pattern fits the regulatory example, but it does not demonstrate
regular use because of the time gap between events, and it thus results
in a problem very similar to the ones arising under the single-use
inference examples.
As a result, because of the impact the examples overall are having
on persons' ability to purchase firearms, ATF has determined that it is
necessary to remove the examples in full, while clarifying that the
prohibition in 18 U.S.C. 922(g)(3) requires that the records show a
person is regularly using or possessing controlled substances, as
described in the discussion above. This is an interim measure to
address the harm to constitutional rights caused by erroneously denying
a person a firearm while ATF further assesses whether new examples
might be useful or feasible, given the variety of case-by-case fact
patterns. ATF may reassess the definition of unlawful user in a
separate notice of proposed rulemaking after the pending case United
States v. Hemani concludes at the Supreme Court and considering any
public comments in response to this IFR, or it may make amendments in a
final rule based on this interim one. In the meantime, any erroneous
denials based on the examples in the current definition will cease.
B. Specific Changes
To make the definition of ``[u]nlawful user of or addicted to any
controlled substance'' easier to read, and to distinguish more clearly
between the two prongs of the definition, ATF is breaking the
definition into multiple paragraphs and has made minor plain-writing
edits throughout. The first paragraph of the revised regulatory text in
this rule defines when a person is addicted to a controlled substance.
ATF is slightly revising the wording of this definition for better
medical accuracy, so it now reads, ``A person who uses a controlled
substance and demonstrates a pattern of compulsive use of the
controlled substance, characterized by impaired control over use, is
addicted to a controlled substance.'' The second paragraph defines an
unlawful user of a controlled substance, and the remaining portions of
the current definition fall within subparagraphs under paragraph (2).
ATF is revising the definition of an unlawful user to specifically
provide that an ``unlawful user'' is someone who uses a controlled
substance regularly over an extended period of time.\25\ The
[[Page 2703]]
new definition therefore adds ``over an extended period of time
continuing into the present.'' It also clarifies that using a
controlled substance without a lawful prescription also qualifies as
unlawful use. As a result, the new definition reads: ``A person who
regularly uses a controlled substance over an extended period of time
continuing into the present, without a lawful prescription or in a
manner substantially different from that prescribed by a licensed
physician, is an unlawful user of a controlled substance.''
---------------------------------------------------------------------------
\25\ Regular use in this rule is a legal construct, distinct
from a clinical diagnosis, and does not itself imply the presence of
a substance use disorder. ATF notes that substance use alone also
does not equate to addiction or substance use disorder. This is, in
part, one of the reasons that the courts, and now ATF, are no longer
relying on single-use cases to establish inferences of regular use
under this regulation. From a medical perspective, substance use
exists along a continuum, ranging from non-problematic use to
clinically diagnosable substance use disorder.
---------------------------------------------------------------------------
Paragraph (2)(i) then includes the portion of the current
definition that sets out the temporal aspect, but it removes the phrase
``or weeks,'' adds ``unlawful'' before ``use,'' adds ``shipping,
transporting, possessing, or receiving a firearm'' to clarify what
``before'' refers to, adds ``requires evidence,'' adds ``with
sufficient regularity and recency'' to replace the existing phrase
``recently enough,'' and makes some minor plain-writing edits so that
the first sentence (now two sentences) reads: ``Such unlawful use is
not limited to using a controlled substance on a particular day, or
within a matter of days before shipping, transporting, possessing, or
receiving a firearm. Rather, unlawful use requires evidence that the
person has unlawfully used the substance with sufficient regularity and
recency to indicate that the individual is actively engaged in such
conduct. A person may be an unlawful current user of a controlled
substance even though the substance is not being used at the precise
time the person seeks to acquire, ship, transport, receive, or possess
the firearm.'' This rule then adds a new clarifying sentence to this
paragraph, which reads ``A person may be an unlawful current user of a
controlled substance even though the substance is not being used at the
precise time the person seeks to acquire, ship, transport, receive, or
possess the firearm.''
Additionally, ATF is adding a new provision to clarify when a
person is not an unlawful user, which is in paragraph (2)(ii) and
reads: ``A person is not an unlawful user of a controlled substance if
the person has ceased regularly unlawfully using the substance, or if
the person's unlawful use is isolated or sporadic or does not otherwise
demonstrate a pattern of ongoing use. A person is also not an unlawful
user if the person, while using a lawfully prescribed controlled
substance, deviates slightly or immaterially from the instructions of
the prescribing physician.'' The rule removes the remaining section of
the current definition, the examples, from the definition.
III. Statutory and Executive Order Review
A. Administrative Procedure Act
Under the Administrative Procedure Act (``APA''), 5 U.S.C.
553(b)(A), an agency is not required to undergo notice and public
comment when it issues an interpretive rule. An interpretive rule
``typically reflects an agency's construction of a statute that has
been entrusted to the agency to administer'' and does not modify or add
``to a legal norm based on the agency's own authority.'' Syncor Int'l
Corp. v. Shalala, 127 F.3d 90, 94-95 (D.C. Cir. 1997) (emphasis
omitted).
This rule is an interpretive rule because ATF is merely amending
the regulation to better align it with the best interpretation of the
statute. See, e.g., Warshauer v. Solis, 577 F.3d 1330, 1338, 1340 (11th
Cir. 2009) (an interpretive rule ``merely clarifies how the [agency]
intends to enforce'' a statute, and a ``statement seeking to interpret
a statutory . . . term is . . . the quintessential example of an
interpretive rule'' (quotation omitted)). Not only have court decisions
over the past 25 years consistently interpreted the statute to not
include single-use inferences and to rest on regular use or a pattern
of use, but ATF has also been interpreting the statute that way for
most single-use denials for more than a decade and has changed its
referral practices accordingly. This rule informs the public about
ATF's current view of how the statutory term ``unlawful user of or
addicted to a controlled substance'' should be construed and clarifies
how the Department intends to enforce it in the context of firearm
denials. See, e.g., Perez v. Mortgage Bankers Ass'n, 575 U.S. 92, 97
(2015) (a rule issued ``to advise the public of the agency's
construction of the statutes and rules which it administers'' is an
interpretive rule (quotation omitted)); Mendoza v. Perez, 754 F.3d
1002, 1021 (D.C. Cir. 2014) (``An `interpretive rule' describes the
agency's view of the meaning of an existing statute or regulation.''
(quotation omitted)); id. (interpretive rules ``are those that clarify
a statutory or regulatory term''); Orengo Caraballo v. Reich, 11 F.3d
186, 195 (D.C. Cir. 1993) (``A statement seeking to interpret a
statutory or regulatory term is . . . the quintessential example of an
interpretive rule.''). This rule creates no new law, right, or duty,
and it has no effect independent of the statute. Rather, it provides
guidance on how the Department will enforce the statute, principally by
removing interpretive examples from the definition that are no longer
aligned with the best interpretation of the statute and by clarifying
that the definition involves regular use or a pattern of use. This rule
does not change the prohibition or authorities created by the statute.
Although this rule is an interpretive rule, ATF is issuing this
rule as an IFR and soliciting public comments on possible new examples
and other changes that might help further clarify the relevant
definition in a possible future proposed rulemaking, or in a final rule
stemming from this IFR, for that purpose.
An agency may also forego the delayed effective date typically
required by the APA ``for good cause found and published with the
rule.'' 5 U.S.C. 553(d)(3). As to whether there is good cause to forego
the delayed effective date typically required by the APA, courts have
asked whether the need to immediately implement a new rule outweighs
regulated parties' need to prepare for implementation of the rule. See,
e.g., Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir.
1992); Am. Fed'n of Gov't Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156
(D.C. Cir. 1981). Here, there is no need for additional delay for
regulated parties to prepare to implement this rule because this rule
does not require any regulated parties to take any actions. See 5
U.S.C. 553(d)(1), (d)(3). Instead, this rule simply ensures that
certain regulated parties will not be denied firearms due to an
erroneous interpretation of 18 U.S.C. 922(g)(3).
B. Executive Orders 12866 and 13563
Executive Order 12866 (Regulatory Planning and Review) directs
agencies to assess the costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits.
Executive Order 13563 (Improving Regulation and Regulatory Review)
emphasizes the importance of agencies quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting public
flexibility.
This IFR amends 27 CFR 478.11 to bring the definition of ``unlawful
user of or addicted to any controlled substance'' into alignment with
court decisions and
[[Page 2704]]
ATF internal guidance that a single use of a controlled substance does
not constitute sufficient evidence to support a determination that a
person is an unlawful user within the statutory definition.
The Office of Management and Budget (``OMB'') has determined that,
although this rule is not economically significant under section
(3)(f)(1) of Executive Order 12866, this rule is a ``significant
regulatory action'' under the Order. OMB has therefore reviewed this
rule. ATF provides the following analysis to comply with Executive
Orders 12866 and 13563.
This rulemaking provides qualitative benefits by reducing a
regulatory burden on the public, including qualitative benefits for
current and future firearm owners, without reducing public safety. The
provisions of this IFR better align with field enforcement, judicial
precedent, agency guidance, administrative processes, and public
understanding of the key definitions and patterns that affect firearms
purchases and prohibitions.
1. Need Statement
This IFR is designed to correct the discrepancy that currently
exists in enforcing section 922(g)(3) between, e.g., NICS firearm
purchase determinations and certain ATF referrals, on the one hand, and
court decisions, on the other hand. Relying on current ATF regulations,
NICS denies firearm purchases for those individuals who, within the
previous year, have had a single arrest for admitted drug use or drug
possession, or who failed a test for an unlawfully used controlled
substance. In addition, ATF refers certain delayed denials, those based
on a single misdemeanor conviction involving drugs, for prosecution or
to retrieve the firearm (including cases in which the person is subject
to forfeiture). The inference examples that NICS and ATF rely upon for
these actions are not supported by federal courts that have interpreted
the phrase ``unlawful user.'' This discrepancy has created confusion
for purchasers and those tasked with enforcing the statutory
prohibition, has caused a divergence between court decisions and
enforcement decisions, and has caused (and continues to cause) some
people to be erroneously denied firearms. ATF needs to address this
situation and has decided to revise its regulatory definition of
``unlawful user of or addicted to any controlled substance'' to align
with court interpretations of the definition and specifically require
that a person must use the controlled substance regularly over an
extended period of time, continuing into the current time, before being
deemed an ``unlawful user of or addicted to any controlled substance.''
2. Benefits
ATF estimates the impacts of the IFR to be primarily a reduced
burden on the public, including qualitative benefits for current and
future firearm owners.
As of December 31, 2025, there were 54,136 entries in the NICS
Indices designated as ``unlawful user/addicted to controlled
substance'' out of a total of 34,036,267 active entries in the NICS
Index alone (one of the three systems that make up the Indices).\26\
NICS uses the information in the III, NCIC, and NICS Index to assess
whether a person wishing to receive a firearm from a licensee is
prohibited from doing so under federal statutes, including on the basis
of being an unlawful user of a controlled substance. If so, NICS
notifies the licensee preparing to sell the firearm that the person is
denied from purchasing. NICS denials may occur at any point within the
first three business days from when the transactions were initiated, in
which case they are called standard denials. The potentially
prohibiting record may also take longer to investigate, and thus the
denial may arrive after the initial three-business day period, in which
case they are called delayed denials. During a delayed denial, the
person may have received the firearm before the licensee is notified
that the person was denied. NICS refers delayed-denial cases to ATF to
pursue.
---------------------------------------------------------------------------
\26\ FBI CJIS, Active Entries in the NICS Indices (last updated
Dec. 31, 2025), https://www.fbi.gov/file-repository/cjis/active_records_in_the_nics-indices.pdf/view.
---------------------------------------------------------------------------
With regard to pursuing delayed-denial referrals from NICS
involving 18 U.S.C. 922(g)(3), ATF's field division referral guidelines
state that most single ``inference of use'' denials (i.e., admitted
use, admitted possession, positive drug test, or single drug arrest in
the past year) should not be referred to the field offices to prosecute
or to retrieve purchased firearms (including any firearms a person must
forfeit). However, DENI refers an 18 U.S.C. 922(g)(3) denial to the
field if the purchaser has a misdemeanor drug conviction within the
past year (another type of single-use inference) or multiple drug
arrests in the past five years with at least one of those arrests being
in the past year. In FY 2025, NICS denied 9,163 transfers based on a
person being an unlawful user of or addicted to a controlled substance.
Of these, 8,947 were ultimately denied a firearm. See Table 1, above,
and accompanying text. Of these 8,947 denials, 4,560, or about 51
percent (51 percent = 4,560/8,947 * 100) were based on admissions of
single use or single possession, a single failed drug test, or a single
misdemeanor drug conviction within the past year as an indication of
regular use or possession. See Table 2, above.
The 4,560 denials based on single-incident inferences included 196
delayed denials in which the person received a firearm. ATF did not
pursue any of these denials for further criminal investigation,
firearms forfeiture, or prosecution. ATF referred only 80 delayed
denials based on single-use inferences (a single misdemeanor drug
conviction). This data and ATF guidelines and practices demonstrate
both the rarity of drug-related enforcement actions and the de facto
standard for recurring or regular use that is already applied to most
delayed denials in the field. Because, as a practical matter, most
delayed denials do not result in an individual failing to receive a
firearm on the basis of section 922(g)(3), amending the regulations as
proposed in this rule to clarify the scope of section 922(g)(3) will
have only de minimis impacts for individuals' ability to receive a
firearm pursuant to a delayed denial and exercise their Second
Amendment rights.
In the context of standard denials, however, the amended regulatory
definition will confer a qualitative benefit to persons who would have
been denied the opportunity to purchase a firearm under the current,
unamended regulatory definition. As noted above, NICS reported 9,163
denials under 18 U.S.C. 922(g)(3) in FY 2025, 8,817 of which were
standard denials in which the person did not receive the firearm on the
basis of unlawfully using controlled substances. See Table 1, above. Of
these cases, 4,284 were denied on the basis of inferences due to a
single admission of use, single admission of possession, single failed
drug test during the past year, or single misdemeanor drug conviction.
See Table 2, above. Adding to this number the 80 delayed denials based
on a single misdemeanor conviction results in 4,364 persons who were
unable to receive or retain a firearm based on single-use inferences.
These 4,364 persons would thus be the group that would receive
qualitative benefits from this rule, in that they would now--contrary
to current practice--be able to purchase firearms during the same year
in which they had only one drug-related incident giving rise to an
inference of regular use or possession. Assuming that this annual
number of standard
[[Page 2705]]
denials based on single-use inferences would continue at a similar rate
int the future without this rule, then over the next ten years, this
rule will prevent erroneously denying--as standard denials based on
single-use inferences--approximately 42,840 transfers.
This IFR will also likely lead to benefits to the public in the
form of greater clarity, and to benefits in the form of less ambiguity
for those who enforce and administer the various federal law provisions
in the GCA and its implementing regulations. ATF is adding new
provisions to clarify that a person is not an unlawful user if the
person has ceased regularly using the substance or if the person uses a
controlled substance in an isolated or sporadic manner, with added
language to indicate that a single incident is not sufficient for a
denial under 18 U.S.C. 922(g)(3). The rule also removes the examples
from the definition, which have caused confusion about whether a single
incident of using or possessing a controlled substance could create an
inference of regular use.
These provisions better align with field enforcement, judicial
precedent, and administrative guidance. Thus, the disconnect between
the current regulatory definition and these other indicia of the
meaning of section 922(g)(3) will no longer be a potential source of
confusion for the public.
3. Costs
ATF estimates that this rule will not create any compliance
burdens, either qualitative or quantitative. This is because ATF has
already adopted, as a practical matter, the changes discussed in this
rule in its enforcement actions,\27\ and because the changes also align
with longstanding court decisions that require regular unlawful use of
a controlled substance over an extended period of time. Although ATF
practices have changed in anticipation of this rule, and although ATF
anticipates that NICS practices for background checks will also change
as a result of the rule, these changes would not present a public cost
or burden. Instead, some persons who currently cannot purchase a
firearm during the same year in which they have a drug incident would
simply be able to purchase the firearm, without any material change to
the public in how NICS operates.
---------------------------------------------------------------------------
\27\ In 2026, ATF also stopped referring delayed denials based
on single misdemeanor drug convictions.
---------------------------------------------------------------------------
However, this rule's change could potentially result in an
increased risk to public safety because some persons who have a record
of only one drug offense in the relevant time period could be regular
drug users that just do not have records of more offenses. Under the
current regulatory definition, such persons would receive standard NICS
denials and would not be able to purchase a firearm in the same year in
which they have such an incident. Under the proposed regulatory
definition, by contrast, they would be able to. This rule could thus
result in an increased risk that such persons would be under the
influence of drugs when purchasing and thereafter possessing their
firearm,\28\ representing a risk to public safety. However, as noted
above, ATF estimates this increased risk to be de minimis. Of the
aforementioned 34,036,267 entries in the NICS Index database, 54,136
were entries for being an unlawful user of or addicted to a controlled
substance (including denials not based on single-use inferences), which
represents only 0.16 percent of prohibiting entries. In addition, the
population that would now be able to purchase firearms in this context
would be 4,284 persons per year--i.e., those persons who would have
received standard denials involving single-incident cases without this
rule. An unknown portion of this population would represent the
magnitude of potential risk to public safety. ATF believes that the
costs associated with such circumstances would be vanishingly small
because ATF's enforcement experience has shown that a pattern of
controlled substance arrests, controlled substance convictions, or
other incidents outlined in the amended regulatory definition--not a
single example of such incidents--is a more accurate indicator of
whether a person is a habitual user of controlled substances.
---------------------------------------------------------------------------
\28\ Substance abuse does not necessarily result in intoxication
or impairment at any given moment in time. From a clinical
standpoint, impairment is episodic and substance-specific. However,
because the possibility that regular unlawful drug use could result
in intoxication, impairment, or other effects on judgment, Congress
was concerned about the risk of such use to public safety if the
person also had a firearm. By making the changes in this rule, that
risk could be increased.
---------------------------------------------------------------------------
4. Regulatory Alternatives
ATF considered three alternatives in formulating this rule:
continuing the status quo without changing the existing regulatory
definition; issuing guidance to those who rely on the current
provision; or revising the existing regulation.
Option 1: Continuing the Status Quo of Maintaining the Existing
Inferences
This is also known as the no-action alternative. ATF considered
this alternative but, in light of (1) court cases over the past 20
years that have found a single incident of drug use to be insufficient
in most cases, (2) ATF's experience in terms of prosecutors declining
to pursue such cases, and (3) the conflicting inferences in the
regulation that have caused differing applications, ATF concluded this
option would continue to impose a qualitative burden on the public
without increasing public safety--i.e., the level of public safety
related to this prohibition's definition would remain the same as it
currently is. ATF considers it inappropriate to retain the existing
inference examples in the regulatory definition because a single recent
incident of using or possessing a controlled substance is insufficient
evidence upon which to base an administrative forfeiture or to deem a
person prohibited under the GCA as an unlawful user. These inferences
no longer align with ATF practice and guidance, or the weight of court
decisions issued over the past 20 years, and they create confusion and
inconsistency between different ways the regulatory inferences are
applied. Classifying individuals as prohibited persons on the basis of
a single unlawful use of a controlled substance is also potentially
unconstitutional under the Second Amendment. As a result, ATF
determined that it should take some action to resolve these issues.
Option 2: Guidance
ATF considered issuing guidance to the NICS Section and other
Department elements charged with administering or enforcing 18 U.S.C.
922(g)(3), as well as state, local, and tribal partners that may also
rely upon 27 CFR 478.11. The guidance would set out the court decisions
and ATF's practices that have aligned with those decisions since at
least 2018. In addition, it would inform the enforcing elements that
ATF's policy and statutory interpretation position is that a single
incident is no longer sufficient to meet the statutory prohibition and
request that the elements adjust their internal guidance and their
enforcement practices to align. ATF believes providing guidance to the
other elements is an important option, especially in the short term,
and will be working with the FBI on this change. ATF believes that
guidance can often contain more detailed explanations of how to apply
statutory or regulatory terms than can a regulation. However, because
the existing regulatory definition contains the problematic inference
examples, ATF determined that the guidance option would not suffice as
a complete replacement for a
[[Page 2706]]
rulemaking that removes the inference examples. Guidance should provide
more details and interpret regulatory provisions, not conflict with
them or obviate portions of them. Without the regulatory change, many
people would still believe they have to apply these inferences or use
these examples. A regulation is treated as more binding than guidance,
even on agencies, and reaches other organizations that might not know
to search out guidance or that guidance changing the regulation exists.
Option 3: Rulemaking (Proposed Alternative)
The inferences included in the definition of unlawful user are
contained in a regulation. To remove them from that regulation requires
a rulemaking. The existing definition's inference examples conflict
with court decisions and enforcement practice, so retaining them in the
regulatory definition creates potential confusion and inconsistency,
and may cause persons to be denied firearms when they should not be.
Revising, in relevant part, the definition of an unlawful user to
specifically include that the person must use the controlled substance
regularly over an extended period of time, and to remove the inference
examples entirely, reduces confusion for those enforcing section
922(g)(3) and for persons possessing, or desiring to possess, firearms.
This is especially important for the future so that members of the
public are not confused when they consult ATF's regulations. In
addition, this option complies with sound regulatory drafting
principles by deleting no-longer-applicable examples and bringing the
regulations into alignment with years of case law and previously
changed portions of ATF internal guidance and practices. ATF is issuing
this interpretive rule to effectively stop people from being denied
firearms based on the existing regulation's content. A rulemaking--not
a different option--is the most effective way to achieve this goal.
C. Executive Order 14192
Executive Order 14192 (Unleashing Prosperity Through Deregulation)
requires an agency, unless prohibited by law, to identify at least ten
existing regulations to be repealed or revised when the agency publicly
proposes for notice and comment or otherwise promulgates a new
regulation that qualifies as an Executive Order 14192 regulatory action
(defined in OMB Memorandum M-25-20 as a final significant regulatory
action as defined in section 3(f) of Executive Order 12866 that imposes
total costs greater than zero). In furtherance of this requirement,
section 3(c) of Executive Order 14192 requires that any new incremental
costs associated with such new regulations must, to the extent
permitted by law, also be offset by eliminating existing costs
associated with at least ten prior regulations. Although this IFR is a
significant regulatory action as defined by Executive Order 12866
because it raises a novel policy issue, it does not impose total costs
greater than zero. This rule provides qualitative benefits to the
public by clarifying an existing definition and ensuring the definition
aligns better with court cases that have interpreted it, thereby
reducing the number of individuals erroneously denied the option of
purchasing firearms. It imposes no costs. This IFR therefore qualifies
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).
D. Executive Order 14294
Executive Order 14294 (Fighting Overcriminalization in Federal
Regulations) requires agencies promulgating regulations with criminal
regulatory offenses potentially subject to criminal enforcement to
explicitly describe the conduct subject to criminal enforcement, the
authorizing statutes, and the mens rea standard applicable to each
element of those offenses. This IFR does not create a criminal
regulatory offense and is thus exempt from Executive Order 14294
requirements.
E. Executive Order 13132
This IFR does 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 Acting Director, ATF, has determined that this
rule does not impose substantial direct compliance costs on state and
local governments, preempt state law, or meaningfully implicate
federalism. It thus does not warrant preparing a federalism summary
impact statement.
F. Executive Order 12988
This IFR meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988 (Civil Justice Reform).
G. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601-12,
agencies are required to conduct a regulatory flexibility analysis of
any rule subject to notice-and comment-rulemaking requirements unless
the agency head certifies, including a statement of the factual basis,
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include certain
small businesses, small not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
The Acting Director, ATF, certifies, after consideration, that this
IFR does not have a significant economic impact on a substantial number
of small entities. This rule is deregulatory and does not impose any
additional costs or burdens on any party, including members of the
public or regulated businesses. Instead, the provisions of this rule
primarily offer clarity on existing policy, reduce qualitative burdens
on current and prospective firearm owners, and result in fewer
background check denials, thereby permitting small businesses to
complete more firearm sales.
Although reducing denials may result in additional sales for some
small businesses engaged in dealing firearms, the number of denials
based on 18 U.S.C. 922(g)(3), as explained in section III.B of this
preamble, is small enough that ATF anticipates that this increased
revenue will not have a significant economic impact on a substantial
number of such businesses. In addition, this rule is an interpretive
rule that is not required to proceed through notice and comment, see
section III.A of this preamble, so it is exempt from the requirement to
complete a regulatory flexibility analysis.
H. Small Business Regulatory Enforcement Fairness Act of 1996
This IFR does not have a significant economic impact on a
substantial number of small entities under the Small Business
Regulatory Enforcement Fairness Act of 1996, because it imposes no
additional costs or burdens on any party, including members of the
public or regulated businesses. Instead, the rule's provisions
primarily offer clarity on existing policy, reduce qualitative burdens
on current and prospective owners of firearms, and result in fewer
background check denials.
I. Unfunded Mandates Reform Act of 1995
This IFR does not include a federal mandate that might result in
the aggregate expenditure by state, local, and tribal governments, or
by the
[[Page 2707]]
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.
J. 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. As defined in 5 CFR
1320.3(c), an information collection includes any reporting, record-
keeping, monitoring, posting, labeling, or other similar actions an
agency requires of the public. This IFR does not create any new
information collection requirements, or impact any existing ones,
covered under the PRA.
K. Congressional Review Act
Pursuant to the Congressional Review Act, 5 U.S.C. 801 et seq.,
OMB's Office of Information and Regulatory Affairs has determined that
this IFR does not meet the criteria in 5 U.S.C. 804(2) to constitute a
major rule. This rule is not a major rule because it will not result in
an annual effect on the economy of $100 million or more; a major
increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.
IV. Public Participation
A. Comments Sought
ATF requests comments on the IFR from all interested persons. ATF
specifically requests comments on the clarity of this IFR and how it
may be made easier to understand. In addition, ATF requests comments on
the costs or benefits of the rule and on the appropriate methodology
and data for calculating those costs and benefits.
All comments must reference this document's RIN 1140-AB03 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 identifiable information
(``PII'') in the body of your online comment, it may be posted and
viewable online. Similarly, if you submit a written comment with PII in
the body of the comment, it may be posted and viewable online.
Therefore, all commenters should review section IV.B of this preamble,
``Confidentiality,'' regarding how to submit PII if you do not want it
published online.
ATF may not consider, or respond to, comments that do not meet
these requirements or comments containing excessive profanity. ATF will
retain comments containing excessive profanity as part of this
rulemaking's administrative record but will not publish such documents
on 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 parts of all comments meeting the requirements of
this section, whether submitted electronically or on paper, and except
as described 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-AB03. 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 or in any
uploaded attachments. However, PII entered into the online fields
designated for name, email, and other contact information will not be
posted or viewable online.
A commenter may submit to ATF information identified as proprietary
or confidential business information by mail. To request that ATF
handle this information as controlled unclassified information
(``CUI''), the commenter must place any portion of a comment that is
proprietary or confidential business information under law or
regulation on pages separate from the balance of the comment, with each
page prominently marked ``CUI//PROPIN'' at the top of the page.
ATF will not make proprietary or confidential business information
submitted in compliance with these instructions available when
disclosing the comments that it receives, but it 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 by following the instructions on the web
page. 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, 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.''
[[Page 2708]]
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 Acting Director of ATF within the 180-day comment period. The
Acting Director, however, reserves the right to determine, in light of
all circumstances, whether a public hearing is necessary.
Disclosure
Copies of this IFR 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-AB03).
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 record-keeping
requirements, Research, Seizures and forfeitures, Transportation.
For the reasons discussed in the preamble, ATF amends 27 CFR part
478 as follows:
PART 478--COMMERCE IN FIREARMS AND AMMUNITION
0
1. The authority citation for 27 CFR part 478 continues to read as
follows:
Authority: 5 U.S.C. 552(a); 18 U.S.C. 847, 921-931; 44 U.S.C.
3504(h).
0
2. Amend Sec. 478.11 by revising the definition of ``Unlawful user of
or addicted to any controlled substance'' to read as follows:
Sec. 478.11 Meaning of terms.
* * * * *
Unlawful user of or addicted to any controlled substance. (1) A
person who uses a controlled substance and demonstrates a pattern of
compulsively using the controlled substance, characterized by impaired
control over use, is addicted to a controlled substance.
(2) A person who regularly uses a controlled substance over an
extended period of time continuing into the present, without a lawful
prescription or in a manner substantially different from that
prescribed by a licensed physician, is an unlawful user of a controlled
substance.
(i) Such unlawful use is not limited to using a controlled
substance on a particular day, or within a matter of days before
shipping, transporting, possessing, or receiving a firearm. Rather,
unlawful use requires evidence that the person has unlawfully used the
substance with sufficient regularity and recency to indicate that the
individual is actively engaged in such conduct. A person may be an
unlawful current user of a controlled substance even though the
substance is not being used at the precise time the person seeks to
acquire, ship, transport, receive, or possess the firearm.
(ii) A person is not an unlawful user of a controlled substance if
the person has ceased regularly unlawfully using the substance, or if
the person's unlawful use is isolated or sporadic or does not otherwise
demonstrate a pattern of ongoing use. A person is also not an unlawful
user if the person, while using a lawfully prescribed controlled
substance, deviates slightly or immaterially from the instructions of
the prescribing physician.
* * * * *
Daniel Driscoll,
Acting Director.
[FR Doc. 2026-01141 Filed 1-20-26; 11:15 am]
BILLING CODE 4410-FY-P