Comment on FR Doc # 2026-08918

RIN 1140-AA85 | Docket No. ATF-2026-0008 | FR Doc 2026-08918 Position: Oppose as proposed — ATF should delete its implementing regulation rather than refining new criteria The Brady Act, 18 U.S.C. § 922(t)(3), specifies the conditions under which a state-issued permit qualifies as an alternative to a NICS check. Congress wrote four criteria. ATF should apply those four criteria. It does not need a regulation imposing additional administrative requirements — including state-by-state "labeling" requirements like the Alaska "NICS Exempt" stamp the NPRM relies on as a model. Three doctrines counsel against this rule. First, after Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), ATF cannot rely on judicial deference to sustain criteria it added to a statutory exemption. Congress already specified the criteria; ATF's role is to apply them, not narrow them. Second, the rule of lenity. The Brady Act creates felony liability for unlawful transfers under 18 U.S.C. § 924(a). When the statutory exemption is ambiguous, Wooden v. United States, 595 U.S. 360 (2022), and Abramski v. United States, 573 U.S. 169 (2014), require the ambiguity to be resolved in favor of the regulated party — meaning the broadest reasonable reading of the exemption, not the narrowest. Third, the Second Amendment. Imposing a labeling requirement on states effectively conditions a federal exemption from a regulation on states performing administrative work Congress did not require — and therefore denies the exemption to the citizens of states that decline to play along. That is exactly the kind of constructive narrowing of a federal right N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), and District of Columbia v. Heller, 554 U.S. 570 (2008), do not allow. The cleanest reform is to repeal 27 CFR § 478.102(d) altogether and apply the statutory exemption directly. If ATF will not repeal it, the regulation should be amended to recognize any state permit that meets the four statutory criteria, regardless of whether the state has gone to the trouble of separately labeling "NICS Exempt" subsets. Federal recognition cannot turn on a state's willingness to do administrative work Congress did not impose. Recommendation: Repeal 27 CFR § 478.102(d). In the alternative, finalize a version that mirrors the statutory criteria exactly and contains no labeling, application, or eligibility requirements not found in the Brady Act.