Firearms Disabilities for Certain Nonimmigrant Aliens (2001R-332P), 33625-33630 [2012-13762]
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Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations
Peru’’ are referred to in the
Determination to Extend as
‘‘Archaeological Material from the
Prehispanic Cultures and Certain
Ethnological Material from the Colonial
Period of Peru.’’ The materials
identified in T.D. 97–50 and those
identified in the Determination to
Extend are the same.
The restrictions on the importation of
these archaeological and ethnological
materials from Peru are to continue in
effect through June 9, 2017. Importation
of such materials continues to be
restricted unless the conditions set forth
in 19 U.S.C. 2606 and 19 CFR 12.104c
are met.
Inapplicability of Notice and Delayed
Effective Date
This amendment involves a foreign
affairs function of the United States and
is, therefore, being made without notice
or public procedure (5 U.S.C. 553(a)(1)).
For the same reasons, pursuant to 5
U.S.C. 553(d)(3), a delayed effective date
is not required.
Regulatory Flexibility Act
Because no notice of proposed
rulemaking is required, the provisions
of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.) do not apply.
Executive Order 12866
§ 12.104g
[Amended]
2. In § 12.104g(a), the table of the list
of agreements imposing import
restrictions on described articles of
cultural property of State Parties is
amended in the entry for Peru by
removing the reference to ‘‘CBP Dec.
07–27’’ and adding in its place ‘‘CBP
Dec. 12–11’’ in the column headed
‘‘Decision No.’’.
■
David V. Aguilar,
Acting Commissioner, U.S. Customs and
Border Protection.
Approved: June 4, 2012.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2012–13859 Filed 6–6–12; 8:45 am]
BILLING CODE 9111–14–P
DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms,
and Explosives
27 CFR Part 478
[Docket No. ATF 24F; AG Order No. 3336–
2012]
RIN 1140–AA08
Firearms Disabilities for Certain
Nonimmigrant Aliens (2001R–332P)
Because this rule involves a foreign
affairs function of the United States, it
is not subject to Executive Order 12866.
Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF),
Department of Justice.
ACTION: Final rule.
Signing Authority
SUMMARY:
AGENCY:
This regulation is being issued in
accordance with 19 CFR 0.1(a)(1).
List of Subjects in 19 CFR Part 12
Cultural property, Customs duties and
inspection, Imports, Prohibited
merchandise.
Amendment to CBP Regulations
For the reasons set forth above, part
12 of Title 19 of the Code of Federal
Regulations (19 CFR part 12), is
amended as set forth below:
PART 12—SPECIAL CLASSES OF
MERCHANDISE
1. The general authority citation for
part 12 and the specific authority
citation for § 12.104g continue to read as
follows:
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■
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202
(General Note 3(i), Harmonized Tariff
Schedule of the United States (HTSUS)),
1624;
*
*
*
*
*
Sections 12.104 through 12.104i also
issued under 19 U.S.C. 2612;
*
*
*
*
*
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In 2002, the Bureau of
Alcohol, Tobacco, Firearms, and
Explosives (ATF) published an interim
final rule implementing the provision of
the Omnibus Consolidated and
Emergency Supplemental
Appropriations Act, 1999, relating to
firearms disabilities for certain
nonimmigrant aliens. That regulation
implemented the law by prohibiting,
with certain exceptions, the sale or
disposition of firearms or ammunition
to, and the possession, shipment,
transportation, or receipt of firearms or
ammunition by, nonimmigrant aliens.
The Department of Justice has now
determined that the relevant statutory
prohibitions on transfer and possession
of firearms and ammunition apply only
to nonimmigrant aliens who were
admitted to the United States under a
nonimmigrant visa, and that the
prohibitions do not apply to
nonimmigrant aliens who lawfully
entered the United States without a visa.
The Department is therefore issuing this
rule to make conforming changes to the
regulations, so that the regulations are
consistent with the Department’s
current legal interpretation.
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This final rule addresses only the
nonimmigrant alien visa issue. The
remaining issues raised by the 2002
interim final rule, and the public
comments submitted with respect to
those issues, will be addressed in a
separate forthcoming rule.
DATES: This rule is effective July 9,
2012.
FOR FURTHER INFORMATION CONTACT:
James P. Ficaretta, Enforcement
Programs and Services, Bureau of
Alcohol, Tobacco, Firearms, and
Explosives, U.S. Department of Justice,
99 New York Avenue NE., Washington,
DC 20226; telephone: 202–648–7094.
SUPPLEMENTARY INFORMATION:
I. Background
On October 21, 1998, Congress
enacted the Omnibus Consolidated and
Emergency Supplemental
Appropriations Act, 1999, Public Law
105–277, 112 Stat. 2681 (‘‘the Act’’ or
‘‘the 1998 Act’’). Among other things,
that Act amended the Gun Control Act
of 1968, as amended (18 U.S.C. Chapter
44), to enact the provisions now
codified in 18 U.S.C. 922(d)(5)(B) and
922(g)(5)(B). These provisions expanded
the list of aliens subject to certain
firearms and ammunition prohibitions
by proscribing, with certain exceptions,
the sale or disposition of firearms or
ammunition to, and the possession,
shipment, transportation, or receipt of
firearms or ammunition by, aliens
admitted to the United States under a
nonimmigrant visa. These prohibitions
became effective upon the date of
enactment.
Section 101(a)(15) of the Immigration
and Nationality Act (INA), 8 U.S.C.
1101(a)(15), describes various categories
of nonimmigrant aliens, including, for
example, diplomats, temporary visitors
for business or pleasure, foreign
students, participants in exchange
´
programs, fiancée(s), and various
categories of temporary workers in the
United States. Not all nonimmigrant
aliens admitted to the United States
require a visa; for example, some
nonimmigrant aliens may be admitted
under the Visa Waiver Program (VWP).
See 8 U.S.C. 1187.
Section 922(g)(5)(A) of title 18 makes
it unlawful for any person who is an
alien illegally or unlawfully in the
United States to ship or transport any
firearm or ammunition in interstate or
foreign commerce, or receive any
firearm or ammunition that has been
shipped or transported in interstate or
foreign commerce, or possess any
firearm or ammunition in or affecting
commerce. Section 922(d)(5)(A) makes
it unlawful for any person to sell or
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otherwise dispose of a firearm or
ammunition to any person knowing or
having reasonable cause to believe that
the recipient is an alien illegally or
unlawfully in the United States.
The 1998 Act amended section
922(g)(5) to expand the list of persons
who may not lawfully ship, transport,
possess, or receive firearms or
ammunition to include, with certain
exceptions, aliens admitted to the
United States under a nonimmigrant
visa, as that term is defined in section
101(a)(26) of the INA (8 U.S.C.
1101(a)(26)). The Act also amended
section 922(d)(5) to make it unlawful to
sell or dispose of a firearm or
ammunition to an alien who has been
admitted to the United States under a
nonimmigrant visa, as that term is
defined in section 101(a)(26) of the INA.
There are exceptions to these general
rules regarding aliens who have been
admitted under nonimmigrant visas. As
specified in 18 U.S.C. 922(y)(2), the
prohibition does not apply if the
nonimmigrant alien is:
‘‘(A) Admitted to the United States for
lawful hunting or sporting purposes or
is in possession of a hunting license or
permit lawfully issued in the United
States;
(B) an official representative of a
foreign government who is—
(i) accredited to the United States
Government or the Government’s
mission to an international organization
having its headquarters in the United
States, or
(ii) en route to or from another
country to which that alien is
accredited;
(C) an official of a foreign government
or a distinguished foreign visitor who
has been so designated by the
Department of State; or
(D) a foreign law enforcement officer
of a friendly foreign government
entering the United States on official
law enforcement business.’’
In addition, section 922(y)(3) provides
that any individual who has been
admitted to the United States under a
nonimmigrant visa may receive a waiver
from the prohibition contained in
section 922(g)(5)(B) if the Attorney
General approves a petition for the
waiver.
II. Interim Final Rule and Request for
Comments
On February 5, 2002, ATF published
in the Federal Register an interim final
rule implementing the provisions of the
1998 Act relating to firearms disabilities
for nonimmigrant aliens (67 FR 5422).
On that same date, ATF also published
in the Federal Register a proposed rule
soliciting comments on the interim
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regulations (Notice No. 935, 67 FR
5428).
With respect to the scope of the
statutory prohibitions for nonimmigrant
aliens, which is the sole focus of this
final rule, ATF noted in the interim rule
that a nonimmigrant visa does not itself
provide nonimmigrant status. A visa
simply facilitates travel, and expedites
inspection and admission to the United
States, by showing that the State
Department does not believe the
individual to be inadmissible and has
authorized him or her to apply for
admission at a U.S. port of entry.
Moreover, ATF asserted that, at that
time, just under fifty percent of
nonimmigrant aliens required a
nonimmigrant visa to enter the United
States. Other nonimmigrant aliens fell
within various categories that were
exempt from the nonimmigrant visa
requirement for admission to the United
States (e.g., aliens eligible for travel
under the Visa Waiver Program; most
Canadian visitors). Finally, ATF
explained its belief that it would be
inconsistent with the legislative history
of the Act to adopt an interpretation of
the prohibition that did not include all
nonimmigrants lawfully admitted to the
United States.
Based on these reasons, ATF
interpreted the 1998 Act’s statutory
prohibitions to apply to any alien in the
United States in a nonimmigrant
classification, as defined by section
101(a)(15) of the INA (8 U.S.C.
1101(a)(15)). That definition included,
in large part, persons visiting the United
States temporarily for business or
pleasure, persons studying in the United
States who maintain a residence abroad,
and various categories of temporary
foreign workers.
The interim rule also amended the
regulations to give the Attorney General
or his delegate the authority to require
nonresidents bringing firearms and
ammunition into the United States for
hunting or sporting purposes to obtain
an import permit (except for those
exempt importations specified in the
regulations).1
The comment period for Notice No.
935 closed on May 6, 2002.
1 The text of the regulations expressly provides
that the Secretary of the Treasury or his delegate
possesses the authority to require these permits.
After the January 2003 transfer of ATF from the
Department of the Treasury to the Department of
Justice, however, references to the Secretary of the
Treasury were ‘‘deemed to refer’’ to the Attorney
General. See 28 CFR 0.133(a)(4).
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III. Analysis of Comments: The Interim
Rule is Inconsistent With the Plain
Language of the Statute Regarding the
Application of the Nonimmigrant Alien
Prohibition
In response to Notice No. 935, ATF
received 72 comments. Several
commenters disagreed with ATF’s broad
interpretation that the new prohibitions
on transfer and possession of firearms
and ammunition in 18 U.S.C.
922(d)(5)(B) and 922(g)(5)(B) applied to
all aliens in the United States in a
nonimmigrant classification, not just
those aliens who were admitted to the
United States with a nonimmigrant visa.
For example, one commenter
(Comment No. 60) noted that:
Nonimmigrant aliens not required to have
visas are primarily Canadians or citizens of
countries in the Visa Waiver Program (which
are friendly to the U.S.), and this new
statutory prohibition plainly does not apply
to them. * * * The proposed rule should be
redrafted to conform to the statute.
The commenter further stated that, ‘‘[b]y
confining the reach of the provision to
aliens admitted under a non-immigrant
visa, Congress made the policy decision
not to include aliens from countries
from which the United States does not
require a visa.’’
Similar concerns were raised by other
commenters, including a trade
association that represents the interests
of importers and exporters of firearms
and ammunition on matters that impact
the industry.
The U.S. Department of Defense
(DOD) also disagreed with ATF’s
interpretation, particularly with respect
to the possible application to foreign
military personnel. DOD maintained
that the regulations (1) Are contrary to
the plain language and legislative
history of the Act, (2) are inconsistent
with existing ATF regulatory treatment
of foreign military personnel, and (3)
have the potential to adversely affect
national security and the global war on
terrorism. DOD also asserted that
Canadian and other allied military
personnel are not admitted to the
United States under a nonimmigrant
visa, but rather are part of the Visa
Waiver Program or are subject to other
regulatory waivers.
ATF also received a number of public
comments on other aspects of the
interim rule. This final rule is limited
solely to the nonimmigrant visa
provisions. All other issues raised by
the interim rule, and the public
comments on those issues, will be
addressed in a separate, forthcoming
final rule.
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IV. Advice From the Office of Legal
Counsel
Given the commenters’ concerns, in
2011 ATF requested the opinion of the
Department of Justice’s Office of Legal
Counsel (OLC) regarding ATF’s
interpretation in the interim rule that
the prohibition in 18 U.S.C. 922(g)(5)(B)
applied to any alien who has the status
of ‘‘nonimmigrant alien,’’ regardless of
whether the alien required a visa in
order to be admitted to the United
States. Pursuant to 28 U.S.C. 510, the
Attorney General has delegated to OLC
responsibility for, among other things,
preparing the formal opinions of the
Attorney General, rendering opinions to
the various federal agencies, assisting
the Attorney General in the performance
of his function as legal advisor to the
President, and rendering opinions to the
Attorney General and the heads of the
various organizational units of the
Department of Justice. See 28 CFR 0.25.
In an October 28, 2011 memorandum
to ATF, OLC concluded that the plain
text of the statute applies only to
nonimmigrant aliens who must have
visas to be admitted to the United
States, not to all aliens with
nonimmigrant status: ‘‘[t]he statutory
reference to nonimmigrants ‘admitted
* * * under a nonimmigrant visa’
* * * indicates that Congress intended
the firearms disabilities in section
922(g)(5)(B) to apply only to a subset of
nonimmigrants—namely those who
possess a ‘nonimmigrant visa.’ ’’ 2 OLC
also found no affirmative support in the
legislative history for the conclusion
that the prohibition applies to all
nonimmigrant aliens.
V. The Present Final Rule
Upon review of the comments and in
light of the OLC opinion, the
Department is issuing a final rule that
applies to the firearms disabilities in
section 922(d)(5)(B) and 922(g)(5)(B)
only to aliens admitted to the United
States under a nonimmigrant visa, as
that term is defined in section 101(a)(26)
of the INA (8 U.S.C. 1101(a)(26)).
Nonimmigrant aliens lawfully admitted
to the United States without a visa,
pursuant either to the Visa Waiver
Program or other exemptions from visa
requirements, will not be prohibited
from shipping, transporting, receiving,
or possessing firearms or ammunition,
and the regulations will also no longer
proscribe the sale or other disposition of
2 Memorandum for Stephen R. Rubenstein, Chief
Counsel, Bureau of Alcohol, Tobacco, Firearms and
Explosives, from Virginia A. Seitz, Assistant
Attorney General, Office of Legal Counsel, Re:
Nonimmigrant Aliens and Firearms Disabilities
Under the Gun Control Act 4 (Oct. 28, 2011) (first
omission in original).
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firearms or ammunition to such
nonimmigrant aliens.3
Accordingly, this final rule makes
conforming revisions to the regulations
in 27 CFR 478.32, 478.44, 478.45,
478.99, 478.120, and 478.124. The final
rule also amends the regulations by
adding a definition for the term
‘‘Nonimmigrant visa’’ that mirrors the
definition in section 101(a)(26) of the
INA (8 U.S.C. 1101(a)(26)). ATF will be
making conforming changes to the Form
4473 and its instructions. ATF is also
making purely clarifying changes to the
language of §§ 478.44 and 478.45 to
more clearly state the statutory
exceptions.
In addition, ATF is adding language
in § 478.120(a) (and will also be revising
the Form 6NIA) to make clear that
nonimmigrants lawfully admitted to the
United States without a visa will
continue to be required to apply for and
obtain an approved Form 6NIA if they
are temporarily importing or bringing
firearms or ammunition into the United
States for lawful hunting or sporting
purposes. The amended § 478.120,
however, will no longer require
nonimmigrant aliens admitted to the
United States without a visa to submit
documentation that they fall within one
of the exceptions in 18 U.S.C. 922(y)(2)
or the waiver in section 922(y)(3).4 The
existing provisions of § 478.120 are
3 Under section 217 of the INA, 8 U.S.C. 1187, 36
countries have been designated for participation in
the Visa Waiver Program, and eligible nationals of
those countries may seek admission to the United
States without a nonimmigrant visa as temporary
visitors for business or pleasure for up to 90 days,
if otherwise admissible. See 8 CFR 217.2. VWP
travelers are required to have a valid authorization
through the Electronic System for Travel
Authorization prior to travel. See 8 CFR 217.5.
There is a separate visa waiver program for
admission to Guam or the Commonwealth of the
Northern Mariana Islands for eligible travelers from
12 designated countries and geographic areas for
temporary visits for business or pleasure for up to
45 days. See 8 CFR 212.1(q). Nonimmigrant aliens
may be eligible for travel to the United States
without a visa under additional authorities. See,
e.g., 8 CFR 212.1; 22 CFR 41.2(l); https://
www.travel.state.gov/visa/temp/without/
without_1990.html#countries.
Canadian citizens are permitted to enter the
United States as nonimmigrants without a visa for
most purposes. However, certain categories of
Canadians are required to enter with a visa (falling
within the nonimmigrant visa categories E, K, S, or
V). See 8 CFR 212.1(a)(1); 22 CFR 41.2(a).
Other regulatory provisions allow nationals of
certain other countries to enter the United States
without a visa in limited circumstances. See
generally 8 CFR 212.1; 22 CFR 41.2. However, with
only very narrow exceptions, Mexican nationals
generally require a nonimmigrant visa (or a Border
Crossing Card, Form DSP–150, which is itself a
visa) to be admitted to the United States. See 8 CFR
212.1(c); 22 CFR 41.2(g).
4 Aliens who desire to import firearms or
ammunition for other than legitimate hunting or
lawful sporting purposes may apply for an import
permit by filing an ATF Form 6—Part I.
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33627
being recodified in paragraph (b), which
deals with aliens who are admitted
under a nonimmigrant visa (and who
are required to submit such
documentation).
In the 2002 interim rule, ATF
explained its reasons for imposing a
requirement that nonimmigrants
bringing firearms and ammunition into
the United States for hunting or sporting
purposes obtain an import permit. See
67 FR at 5424; see also 27 CFR
478.115(e) (‘‘Notwithstanding the
provisions of paragraphs (d) (1), (2), (3),
(4) and (5) of this section, the [Attorney
General] or his delegate may in the
interest of public safety and necessity
require a permit for the importation or
bringing into the United States of any
firearms or ammunition.’’). Even though
aliens admitted to the United States
who did not require a nonimmigrant
visa will no longer be subject to the
nonimmigrant prohibition on
possession of firearms, the 2002 interim
rule also cited two additional reasons
for requiring all nonimmigrant aliens
seeking to bring firearms or ammunition
into the United States to obtain import
permits: ‘‘It will also enable ATF to be
aware of non-immigrant aliens who are
bringing or attempting to bring firearms
or ammunition into the United States.
Finally, it will ensure nonimportable
firearms and ammunition do not enter
the United States.’’ 67 FR 5424. In short,
the permit process is designed to ensure
that the nonimmigrant aliens can
lawfully possess a firearm in the United
States (i.e., that they do not fall within
any of the other statutory prohibitions
on possession of firearms) and it gives
ATF an opportunity to conduct a
background check on the applicant if
warranted.5 Thus, the language of
§ 478.120(a) makes no change in the
status quo for nonimmigrant aliens
lawfully admitted to the United States
without a visa, except that they will no
longer be required to submit
documentation that they fall within one
of the statutory exceptions for the
nonimmigrant prohibition, consistent
with the changes being made in this
final rule.
The remaining issues raised in the
interim rule (including other issues with
respect to the regulations in 27 CFR
478.120 on importation of firearms and
ammunition), along with a discussion of
the comments received in response to
these aspects of the interim rule, will be
5 Regulations at 28 CFR 25.6(j)(1) allow access to
the National Instant Criminal Background Check
System Index for purposes of providing information
to federal agencies in connection with issuance of
a firearms-related or explosives-related permit or
license.
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addressed in a separate, forthcoming
final rule.6
negligible cost or time impact on
individuals.
E. Small Business Regulatory
Enforcement Fairness Act of 1996
How This Document Complies With the
Federal Administrative Requirements
for Rulemaking
B. Executive Order 13132
This rule is not a major rule as
defined by section 251 of the Small
Business Regulatory Enforcement
Fairness Act of 1996, 5 U.S.C. 804. This
rule 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 foreignbased enterprises in domestic and
export markets.
A. Executive Order 12866 and Executive
Order 13563
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This rule has been drafted and
reviewed in accordance with Executive
Order 12866, ‘‘Regulatory Planning and
Review,’’ section 1(b), Principles of
Regulation, and with Executive Order
13563, ‘‘Improving Regulation and
Regulatory Review.’’ The Department of
Justice has determined that this rule is
a ‘‘significant regulatory action’’ under
Executive Order 12866, section 3(f), and
accordingly this rule has been reviewed
by the Office of Management and
Budget (OMB). However, this rule will
not have an annual effect on the
economy of $100 million, nor will it
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health, or safety, or
State, local or tribal governments or
communities. Accordingly, this rule is
not an economically significant
rulemaking action for purposes of
review under Executive Order 12866.
Further, the Department has assessed
both costs and benefits of this rule as
required by Executive Order 12866,
section 1(b)(6), and has made a reasoned
determination that the benefits of this
regulation justify the costs. The
Department believes that the costs
associated with compliance with this
final rule are minimal. This final rule
does not adversely affect U.S.
businesses. This rule will simplify the
process for nonimmigrant aliens who
were not admitted to the United States
under a nonimmigrant visa to purchase
and rent items from these businesses for
legitimate purposes. There will be
6 With respect to the concerns presented by DOD,
ATF notes that nonimmigrant aliens designated as
distinguished foreign visitors by the State
Department, as well as foreign military personnel,
are exempt, under certain circumstances, from the
general prohibition on aliens possessing firearms in
the United States. Foreign military personnel are
exempt from the prohibition when they can verify
that the firearm or ammunition they seek to possess
is for their exclusive use in performance of their
official duties while in the United States and that
the firearm or ammunition will be removed from
the United States when they leave. This is
consistent with the information provided on ATF
Form 6NIA (5330.3D), Application/Permit for
Temporary Importation of Firearms and
Ammunition by Nonimmigrant Aliens. General
Information number 4 exempts certain diplomats,
distinguished foreign visitors, law enforcement
officers of friendly foreign governments entering the
United States on official law enforcement business,
and foreign military officers entering the United
States on official duty.
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This regulation will not have
substantial direct effects on the States,
on the relationship between the
National Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, the Attorney General has
determined that this regulation does not
have sufficient federalism implications
to warrant the preparation of a
federalism summary impact statement.
C. Executive Order 12988
This regulation meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil
Justice Reform.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 605–612) requires an agency to
conduct a regulatory flexibility analysis
of any rule subject to notice and
comment rulemaking requirements
unless the agency certifies that the rule
will not have a significant economic
impact on a substantial number of small
entities. Small entities include small
businesses, small not-for-profit
enterprises, and small governmental
jurisdictions. The Attorney General has
reviewed this regulation and, by
approving it, certifies that this rule will
not have a significant economic impact
on a substantial number of small
entities.
Most U.S. firearms dealers should not
be significantly impacted by this final
rule. The restrictions on the purchase of
firearms by aliens admitted under a
nonimmigrant visa have not changed
under this final rule. (The provisions of
the interim final rule relating to these
aliens, and the public comments
concerning these provisions, will be
addressed in a separate, forthcoming
final rule.) Individuals traveling to the
United States with a valid hunting
license, or registrations or invitations to
trade shows or competitive sporting
events, are still able to purchase
ammunition and accessories and rent
firearms. Additionally, nonimmigrant
aliens may purchase firearms for export
to their home countries. Moreover,
nonimmigrants admitted to the United
States who did not require a visa are no
longer considered to be prohibited, and
accordingly they would not need to
avail themselves of the exceptions
under 18 U.S.C. 922(y)(2) or the waiver
under section 922(y)(3).
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F. Unfunded Mandates Reform Act of
1995
This rule will not 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 will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995.
G. Paperwork Reduction Act
The regulations that are being
amended in this final rule revise
collections of information covered by
the Paperwork Reduction Act of 1995,
Public Law 104–13, 44 U.S.C. ch. 35,
and its implementing regulations, 5 CFR
part 1320. The collections of
information at §§ 478.44, 478.45,
478.120, and 478.124(c)(3)(iii), were
approved by OMB under control
number 1140–0060 under the interim
rule. On November 15, 2011, the
Department published a 60-day notice
of information collection in the Federal
Register advising the public that it was
seeking an extension of the currently
approved collection (1140–0060) and
requesting comments from the public
and affected agencies on the information
collection (76 FR 70757). The comment
period closed on January 17, 2012. On
January 20, 2012, the Department
published a notice in the Federal
Register advising that it was seeking
public comment for an additional 30
days (77 FR 3006). The extended
comment period closed on February 21,
2012 (77 FR 4828, Jan. 31, 2012). ATF
did not receive any comments
concerning the information collection.
However, ATF has advised OMB of
certain changes that needed to be made
to the approved information collection
as a result of this final rule, e.g., number
of respondents, burden hours, etc.
In addition, ATF requested emergency
clearance from OMB of revisions to
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control number 1140–0020 (Form 4473)
to conform with these regulatory
changes, and OMB approved those
revisions on April 13, 2012, for a period
of 180 days.
ATF also intends to make revisions to
Form 6NIA (approved by OMB under
control number 1140–0084), Form 7
(approved by OMB under control
number 1140–0018), and Form 7CR
(approved by OMB under control
number 1140–0038) to conform with the
regulatory changes made in this final
rule. These information collections will
be submitted to OMB for review and
approval. In the interim, to ensure that
these forms are completed in a way that
conforms with this regulation, ATF will
distribute an informational notice with
the affected forms notifying applicants
of the changes and providing
clarification as to the proper completion
of the forms.
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a valid control
number assigned by OMB.
Disclosure
Copies of the interim rule, the notice
of proposed rulemaking (NPRM), all
comments received in response to the
NPRM, and this final rule will be
available for public inspection by
appointment during normal business
hours at: ATF Reading Room, Room 1E–
062, 99 New York Avenue NE.,
Washington, DC 20226; telephone: 202–
648–8740.
Drafting Information
The author of this document is James
P. Ficaretta, Enforcement Programs and
Services, Bureau of Alcohol, Tobacco,
Firearms, and Explosives.
List of Subjects in 27 CFR Part 478
Administrative practice and
procedure, Arms and ammunition,
Authority delegations, Customs duties
and inspection, Domestic violence,
Exports, Imports, Law enforcement
personnel, Military personnel,
Nonimmigrant aliens, Penalties,
Reporting requirements, Research,
Seizures and forfeitures, and
Transportation.
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Authority and Issuance
Accordingly, for the reasons
discussed in the preamble, 27 CFR part
478 is amended as follows:
PART 478—COMMERCE IN FIREARMS
AND AMMUNITION
1. The authority citation for 27 CFR
part 478 is revised to read as follows:
■
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Jkt 226001
Authority: 5 U.S.C. 552(a); 18 U.S.C. 847,
921–931; 44 U.S.C. 3504(h).
2. Section 478.11 is amended by
adding a definition for the term
‘‘Nonimmigrant visa’’ in alphabetical
order to read as follows:
■
§ 478.11
Meaning of terms.
*
*
*
*
*
Nonimmigrant visa. A visa properly
issued to an alien as an eligible
nonimmigrant by a competent officer as
provided in the Immigration and
Nationality Act, 8 U.S.C. 1101 et seq.
*
*
*
*
*
3. Section 478.32 is amended by
revising the introductory text of
paragraphs (a)(5)(ii) and (d)(5)(ii), and
by revising paragraph (f), to read as
follows:
■
§ 478.32 Prohibited shipment,
transportation, possession, or receipt of
firearms and ammunition by certain
persons.
(a) * * *
(5) * * *
(ii) Except as provided in paragraph
(f) of this section, has been admitted to
the United States under a nonimmigrant
visa: Provided, That the provisions of
this paragraph (a)(5)(ii) do not apply to
any alien who has been lawfully
admitted to the United States under a
nonimmigrant visa, if that alien is—
*
*
*
*
*
(d) * * *
(5) * * *
(ii) Except as provided in paragraph
(f) of this section, has been admitted to
the United States under a nonimmigrant
visa: Provided, That the provisions of
this paragraph (d)(5)(ii) do not apply to
any alien who has been lawfully
admitted to the United States under a
nonimmigrant visa, if that alien is—
*
*
*
*
*
(f) Pursuant to 18 U.S.C. 922(y)(3),
any individual who has been admitted
to the United States under a
nonimmigrant visa may receive a waiver
from the prohibition contained in
paragraph (a)(5)(ii) of this section if the
Attorney General approves a petition for
the waiver.
■ 4. Section 478.44 is amended by
revising paragraph (a)(1)(iii), and by
revising the second sentence in
paragraph (b), to read as follows:
§ 478.44
Original license.
(a)(1) * * *
(iii) If the applicant (including, in the
case of a corporation, partnership, or
association, any individual possessing,
directly or indirectly, the power to
direct or cause the direction of the
management and policies of the
PO 00000
Frm 00025
Fmt 4700
Sfmt 4700
33629
corporation, partnership, or association)
is an alien who has been admitted to the
United States under a nonimmigrant
visa, applicable documentation
demonstrating that the alien falls within
an exception specified in 18 U.S.C.
922(y)(2) (e.g., a hunting license or
permit lawfully issued in the United
States) or has obtained a waiver as
specified in 18 U.S.C. 922(y)(3); and
*
*
*
*
*
(b) * * * If the applicant (including,
in the case of a corporation, partnership,
or association, any individual
possessing, directly or indirectly, the
power to direct or cause the direction of
the management and policies of the
corporation, partnership, or association)
is an alien who has been admitted to the
United States under a nonimmigrant
visa, the application must include
applicable documentation
demonstrating that the alien falls within
an exception specified in 18 U.S.C.
922(y)(2) (e.g., a hunting license or
permit lawfully issued in the United
States) or has obtained a waiver as
specified in 18 U.S.C. 922(y)(3). * * *
*
*
*
*
*
■ 5. Section 478.45 is amended by
revising the second sentence to read as
follows:
§ 478.45
Renewal of license.
* * * If the applicant is an alien who
has been admitted to the United States
under a nonimmigrant visa, the
application must include applicable
documentation demonstrating that the
alien falls within an exception specified
in 18 U.S.C. 922(y)(2) (e.g., a hunting
license or permit lawfully issued in the
United States) or has obtained a waiver
as specified in 18 U.S.C. 922(y)(3).
* * *
*
*
*
*
*
■ 6. Section 478.99 is amended by
revising the introductory text of
paragraph (c)(5) to read as follows:
§ 478.99 Certain prohibited sales or
deliveries.
*
*
*
*
*
(c) * * *
(5) Is an alien illegally or unlawfully
in the United States or, except as
provided in § 478.32(f), is an alien who
has been admitted to the United States
under a nonimmigrant visa: Provided,
That the provisions of this paragraph
(c)(5) do not apply to any alien who has
been lawfully admitted to the United
States under a nonimmigrant visa if that
alien is—
*
*
*
*
*
■ 7. Section 478.120 is revised to read
as follows:
E:\FR\FM\07JNR1.SGM
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33630
Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations
§ 478.120 Firearms or ammunition
imported by or for a nonimmigrant alien.
(a) General. A nonimmigrant alien
temporarily importing or bringing
firearms or ammunition into the United
States for lawful hunting or sporting
purposes must first obtain an approved
ATF Form 6NIA (5330.3D).
(b) Aliens admitted to the United
States under a nonimmigrant visa. (1)
Any alien lawfully admitted to the
United States under a nonimmigrant
visa who completes an ATF Form 6NIA
to import firearms or ammunition into
the United States, or any licensee who
completes an ATF Form 6 to import
firearms or ammunition for such
nonimmigrant alien, must attach
applicable documentation to the Form
6NIA or Form 6 establishing the
nonimmigrant alien falls within an
exception specified in 18 U.S.C.
922(y)(2) (e.g., a hunting license or
permit lawfully issued in the United
States) or has obtained a waiver as
specified in 18 U.S.C. 922(y)(3).
(2) Aliens admitted to the United
States under a nonimmigrant visa
importing or bringing firearms or
ammunition into the United States must
provide the United States Customs and
Border Protection with applicable
documentation (e.g., a hunting license
or permit lawfully issued in the United
States) establishing the nonimmigrant
alien falls within an exception specified
in 18 U.S.C. 922(y)(2) or has obtained a
waiver as specified in 18 U.S.C.
922(y)(3) before the firearm or
ammunition may be imported. This
provision applies in all cases, whether
or not a Form 6 is needed to bring the
firearms or ammunition into the United
States.
(Approved by the Office of Management
and Budget under control number 1140–
0060)
8. Section 478.124 is amended by
revising paragraph (c)(3)(iii) to read as
follows:
■
§ 478.124
Firearms transaction record.
wreier-aviles on DSK5TPTVN1PROD with RULES
*
*
*
*
*
(c) * * *
(3) * * *
(iii) Must, in the case of a transferee
who is an alien admitted to the United
States under a nonimmigrant visa who
states that he or she falls within an
exception to, or has a waiver from, the
prohibition in section 922(g)(5)(B) of the
Act, have the transferee present
applicable documentation establishing
the exception or waiver, note on the
Form 4473 the type of documentation
provided, and attach a copy of the
documentation to the Form 4473; and
*
*
*
*
*
VerDate Mar<15>2010
15:02 Jun 06, 2012
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Dated: June 1, 2012.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2012–13762 Filed 6–6–12; 8:45 am]
BILLING CODE 4410–FY–P
DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms,
and Explosives
27 CFR Part 478
[Docket No. ATF 22I; AG Order No. 3337–
2012]
RIN 1140–AA44
Residency Requirements for Aliens
Acquiring Firearms (2011R–23P)
• https://www.regulations.gov. Federal
eRulemaking portal; follow the
instructions for submitting comments.
You may also view an electronic
version of this rule at the https://
www.regulations.gov site.
See the Public Participation section at
the end of the SUPPLEMENTARY
INFORMATION section for instructions and
requirements for submitting comments,
and for information on how to request
a public hearing.
FOR FURTHER INFORMATION CONTACT:
James P. Ficaretta, Enforcement
Programs and Services, Bureau of
Alcohol, Tobacco, Firearms, and
Explosives, U.S. Department of Justice,
99 New York Avenue NE., Washington,
DC 20226, telephone (202) 648–7094.
SUPPLEMENTARY INFORMATION:
AGENCY:
I. Background
The Department of Justice is
amending the regulations of the Bureau
of Alcohol, Tobacco, Firearms, and
Explosives (ATF) by removing the 90day State residency requirement for
aliens lawfully present in the United
States to purchase or acquire a firearm.
The Department has determined that the
Gun Control Act does not permit ATF
to impose a regulatory requirement that
aliens lawfully present in the United
States are subject to a 90-day State
residency requirement when such a
requirement is not applicable to U.S.
citizens. In addition, upon the effective
date of this interim final rule the
provisions of ATF Ruling 2004–1 will
become obsolete.
DATES: Effective date: This interim rule
is effective on July 9, 2012.
Comment date: Written comments
must be postmarked and electronic
comments must be submitted on or
before September 5, 2012. Commenters
should be aware that the electronic
Federal Docket Management System
will not accept comments after
Midnight Eastern Time on the last day
of the comment period.
ADDRESSES: Send comments to any of
the following addresses—
• James P. Ficaretta, Program
Manager, Mailstop 6N–602, Bureau of
Alcohol, Tobacco, Firearms, and
Explosives, 99 New York Avenue NE.,
Washington, DC 20226; ATTN: ATF 22I.
Written comments must appear in
minimum 12 point font size (.17
inches), include your mailing address,
be signed, and may be of any length.
• 202–648–9741 (facsimile).
Section 922(b)(3) of the Gun Control
Act of 1968 (GCA), 18 U.S.C. 922(b)(3),
makes it unlawful for a Federal firearms
licensee (FFL) to sell or deliver any
firearm to any nonlicensee who the
licensee knows or has reasonable cause
to believe does not reside in the State in
which the licensee’s place of business is
located. Exceptions are provided for
over-the-counter transfers of a rifle or
shotgun to out-of-State residents if the
transfers fully comply with the State
laws of the buyer and seller, and for
loans and rentals of a firearm for
temporary use for lawful sporting
purposes. Regulations that implement
section 922(b)(3) are contained in 27
CFR 478.99(a).
The term ‘‘State of residence’’ is
defined in 27 CFR 478.11 as ‘‘[t]he State
in which an individual resides. An
individual resides in a State if he or she
is present in a State with the intention
of making a home in that State.’’ In
addition, for aliens, the definition also
provides that ‘‘[a]n alien who is legally
in the United States shall be considered
to be a resident of a State only if the
alien is residing in the State and has
resided in the State for a period of at
least 90 days prior to the date of sale or
delivery of a firearm.’’ This 90-day
length of residency requirement does
not apply to U.S. citizens.
Prior to making a transfer of a firearm
to a nonlicensed individual who is a
resident of the State in which the
licensee’s business premises are located,
the regulations at § 478.124(c) require
the licensee to obtain from the
transferee (buyer) a completed ATF
Form 4473, Firearms Transaction
Record, that shows certain information,
including whether the transferee is a
citizen of the United States, and an
affirmative statement as to the
Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF),
Department of Justice.
ACTION: Interim final rule with request
for comments.
SUMMARY:
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]]>Agencies
[Federal Register Volume 77, Number 110 (Thursday, June 7, 2012)]
[Rules and Regulations]
[Pages 33625-33630]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13762]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 478
[Docket No. ATF 24F; AG Order No. 3336-2012]
RIN 1140-AA08
Firearms Disabilities for Certain Nonimmigrant Aliens (2001R-
332P)
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF),
Department of Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In 2002, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF) published an interim final rule implementing the
provision of the Omnibus Consolidated and Emergency Supplemental
Appropriations Act, 1999, relating to firearms disabilities for certain
nonimmigrant aliens. That regulation implemented the law by
prohibiting, with certain exceptions, the sale or disposition of
firearms or ammunition to, and the possession, shipment,
transportation, or receipt of firearms or ammunition by, nonimmigrant
aliens.
The Department of Justice has now determined that the relevant
statutory prohibitions on transfer and possession of firearms and
ammunition apply only to nonimmigrant aliens who were admitted to the
United States under a nonimmigrant visa, and that the prohibitions do
not apply to nonimmigrant aliens who lawfully entered the United States
without a visa. The Department is therefore issuing this rule to make
conforming changes to the regulations, so that the regulations are
consistent with the Department's current legal interpretation.
This final rule addresses only the nonimmigrant alien visa issue.
The remaining issues raised by the 2002 interim final rule, and the
public comments submitted with respect to those issues, will be
addressed in a separate forthcoming rule.
DATES: This rule is effective July 9, 2012.
FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Enforcement
Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and
Explosives, U.S. Department of Justice, 99 New York Avenue NE.,
Washington, DC 20226; telephone: 202-648-7094.
SUPPLEMENTARY INFORMATION:
I. Background
On October 21, 1998, Congress enacted the Omnibus Consolidated and
Emergency Supplemental Appropriations Act, 1999, Public Law 105-277,
112 Stat. 2681 (``the Act'' or ``the 1998 Act''). Among other things,
that Act amended the Gun Control Act of 1968, as amended (18 U.S.C.
Chapter 44), to enact the provisions now codified in 18 U.S.C.
922(d)(5)(B) and 922(g)(5)(B). These provisions expanded the list of
aliens subject to certain firearms and ammunition prohibitions by
proscribing, with certain exceptions, the sale or disposition of
firearms or ammunition to, and the possession, shipment,
transportation, or receipt of firearms or ammunition by, aliens
admitted to the United States under a nonimmigrant visa. These
prohibitions became effective upon the date of enactment.
Section 101(a)(15) of the Immigration and Nationality Act (INA), 8
U.S.C. 1101(a)(15), describes various categories of nonimmigrant
aliens, including, for example, diplomats, temporary visitors for
business or pleasure, foreign students, participants in exchange
programs, fiancée(s), and various categories of temporary
workers in the United States. Not all nonimmigrant aliens admitted to
the United States require a visa; for example, some nonimmigrant aliens
may be admitted under the Visa Waiver Program (VWP). See 8 U.S.C. 1187.
Section 922(g)(5)(A) of title 18 makes it unlawful for any person
who is an alien illegally or unlawfully in the United States to ship or
transport any firearm or ammunition in interstate or foreign commerce,
or receive any firearm or ammunition that has been shipped or
transported in interstate or foreign commerce, or possess any firearm
or ammunition in or affecting commerce. Section 922(d)(5)(A) makes it
unlawful for any person to sell or
[[Page 33626]]
otherwise dispose of a firearm or ammunition to any person knowing or
having reasonable cause to believe that the recipient is an alien
illegally or unlawfully in the United States.
The 1998 Act amended section 922(g)(5) to expand the list of
persons who may not lawfully ship, transport, possess, or receive
firearms or ammunition to include, with certain exceptions, aliens
admitted to the United States under a nonimmigrant visa, as that term
is defined in section 101(a)(26) of the INA (8 U.S.C. 1101(a)(26)). The
Act also amended section 922(d)(5) to make it unlawful to sell or
dispose of a firearm or ammunition to an alien who has been admitted to
the United States under a nonimmigrant visa, as that term is defined in
section 101(a)(26) of the INA. There are exceptions to these general
rules regarding aliens who have been admitted under nonimmigrant visas.
As specified in 18 U.S.C. 922(y)(2), the prohibition does not apply if
the nonimmigrant alien is:
``(A) Admitted to the United States for lawful hunting or sporting
purposes or is in possession of a hunting license or permit lawfully
issued in the United States;
(B) an official representative of a foreign government who is--
(i) accredited to the United States Government or the Government's
mission to an international organization having its headquarters in the
United States, or
(ii) en route to or from another country to which that alien is
accredited;
(C) an official of a foreign government or a distinguished foreign
visitor who has been so designated by the Department of State; or
(D) a foreign law enforcement officer of a friendly foreign
government entering the United States on official law enforcement
business.''
In addition, section 922(y)(3) provides that any individual who has
been admitted to the United States under a nonimmigrant visa may
receive a waiver from the prohibition contained in section 922(g)(5)(B)
if the Attorney General approves a petition for the waiver.
II. Interim Final Rule and Request for Comments
On February 5, 2002, ATF published in the Federal Register an
interim final rule implementing the provisions of the 1998 Act relating
to firearms disabilities for nonimmigrant aliens (67 FR 5422). On that
same date, ATF also published in the Federal Register a proposed rule
soliciting comments on the interim regulations (Notice No. 935, 67 FR
5428).
With respect to the scope of the statutory prohibitions for
nonimmigrant aliens, which is the sole focus of this final rule, ATF
noted in the interim rule that a nonimmigrant visa does not itself
provide nonimmigrant status. A visa simply facilitates travel, and
expedites inspection and admission to the United States, by showing
that the State Department does not believe the individual to be
inadmissible and has authorized him or her to apply for admission at a
U.S. port of entry. Moreover, ATF asserted that, at that time, just
under fifty percent of nonimmigrant aliens required a nonimmigrant visa
to enter the United States. Other nonimmigrant aliens fell within
various categories that were exempt from the nonimmigrant visa
requirement for admission to the United States (e.g., aliens eligible
for travel under the Visa Waiver Program; most Canadian visitors).
Finally, ATF explained its belief that it would be inconsistent with
the legislative history of the Act to adopt an interpretation of the
prohibition that did not include all nonimmigrants lawfully admitted to
the United States.
Based on these reasons, ATF interpreted the 1998 Act's statutory
prohibitions to apply to any alien in the United States in a
nonimmigrant classification, as defined by section 101(a)(15) of the
INA (8 U.S.C. 1101(a)(15)). That definition included, in large part,
persons visiting the United States temporarily for business or
pleasure, persons studying in the United States who maintain a
residence abroad, and various categories of temporary foreign workers.
The interim rule also amended the regulations to give the Attorney
General or his delegate the authority to require nonresidents bringing
firearms and ammunition into the United States for hunting or sporting
purposes to obtain an import permit (except for those exempt
importations specified in the regulations).\1\
---------------------------------------------------------------------------
\1\ The text of the regulations expressly provides that the
Secretary of the Treasury or his delegate possesses the authority to
require these permits. After the January 2003 transfer of ATF from
the Department of the Treasury to the Department of Justice,
however, references to the Secretary of the Treasury were ``deemed
to refer'' to the Attorney General. See 28 CFR 0.133(a)(4).
---------------------------------------------------------------------------
The comment period for Notice No. 935 closed on May 6, 2002.
III. Analysis of Comments: The Interim Rule is Inconsistent With the
Plain Language of the Statute Regarding the Application of the
Nonimmigrant Alien Prohibition
In response to Notice No. 935, ATF received 72 comments. Several
commenters disagreed with ATF's broad interpretation that the new
prohibitions on transfer and possession of firearms and ammunition in
18 U.S.C. 922(d)(5)(B) and 922(g)(5)(B) applied to all aliens in the
United States in a nonimmigrant classification, not just those aliens
who were admitted to the United States with a nonimmigrant visa.
For example, one commenter (Comment No. 60) noted that:
Nonimmigrant aliens not required to have visas are primarily
Canadians or citizens of countries in the Visa Waiver Program (which
are friendly to the U.S.), and this new statutory prohibition
plainly does not apply to them. * * * The proposed rule should be
redrafted to conform to the statute.
The commenter further stated that, ``[b]y confining the reach of the
provision to aliens admitted under a non-immigrant visa, Congress made
the policy decision not to include aliens from countries from which the
United States does not require a visa.''
Similar concerns were raised by other commenters, including a trade
association that represents the interests of importers and exporters of
firearms and ammunition on matters that impact the industry.
The U.S. Department of Defense (DOD) also disagreed with ATF's
interpretation, particularly with respect to the possible application
to foreign military personnel. DOD maintained that the regulations (1)
Are contrary to the plain language and legislative history of the Act,
(2) are inconsistent with existing ATF regulatory treatment of foreign
military personnel, and (3) have the potential to adversely affect
national security and the global war on terrorism. DOD also asserted
that Canadian and other allied military personnel are not admitted to
the United States under a nonimmigrant visa, but rather are part of the
Visa Waiver Program or are subject to other regulatory waivers.
ATF also received a number of public comments on other aspects of
the interim rule. This final rule is limited solely to the nonimmigrant
visa provisions. All other issues raised by the interim rule, and the
public comments on those issues, will be addressed in a separate,
forthcoming final rule.
[[Page 33627]]
IV. Advice From the Office of Legal Counsel
Given the commenters' concerns, in 2011 ATF requested the opinion
of the Department of Justice's Office of Legal Counsel (OLC) regarding
ATF's interpretation in the interim rule that the prohibition in 18
U.S.C. 922(g)(5)(B) applied to any alien who has the status of
``nonimmigrant alien,'' regardless of whether the alien required a visa
in order to be admitted to the United States. Pursuant to 28 U.S.C.
510, the Attorney General has delegated to OLC responsibility for,
among other things, preparing the formal opinions of the Attorney
General, rendering opinions to the various federal agencies, assisting
the Attorney General in the performance of his function as legal
advisor to the President, and rendering opinions to the Attorney
General and the heads of the various organizational units of the
Department of Justice. See 28 CFR 0.25.
In an October 28, 2011 memorandum to ATF, OLC concluded that the
plain text of the statute applies only to nonimmigrant aliens who must
have visas to be admitted to the United States, not to all aliens with
nonimmigrant status: ``[t]he statutory reference to nonimmigrants
`admitted * * * under a nonimmigrant visa' * * * indicates that
Congress intended the firearms disabilities in section 922(g)(5)(B) to
apply only to a subset of nonimmigrants--namely those who possess a
`nonimmigrant visa.' '' \2\ OLC also found no affirmative support in
the legislative history for the conclusion that the prohibition applies
to all nonimmigrant aliens.
---------------------------------------------------------------------------
\2\ Memorandum for Stephen R. Rubenstein, Chief Counsel, Bureau
of Alcohol, Tobacco, Firearms and Explosives, from Virginia A.
Seitz, Assistant Attorney General, Office of Legal Counsel, Re:
Nonimmigrant Aliens and Firearms Disabilities Under the Gun Control
Act 4 (Oct. 28, 2011) (first omission in original).
---------------------------------------------------------------------------
V. The Present Final Rule
Upon review of the comments and in light of the OLC opinion, the
Department is issuing a final rule that applies to the firearms
disabilities in section 922(d)(5)(B) and 922(g)(5)(B) only to aliens
admitted to the United States under a nonimmigrant visa, as that term
is defined in section 101(a)(26) of the INA (8 U.S.C. 1101(a)(26)).
Nonimmigrant aliens lawfully admitted to the United States without a
visa, pursuant either to the Visa Waiver Program or other exemptions
from visa requirements, will not be prohibited from shipping,
transporting, receiving, or possessing firearms or ammunition, and the
regulations will also no longer proscribe the sale or other disposition
of firearms or ammunition to such nonimmigrant aliens.\3\
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\3\ Under section 217 of the INA, 8 U.S.C. 1187, 36 countries
have been designated for participation in the Visa Waiver Program,
and eligible nationals of those countries may seek admission to the
United States without a nonimmigrant visa as temporary visitors for
business or pleasure for up to 90 days, if otherwise admissible. See
8 CFR 217.2. VWP travelers are required to have a valid
authorization through the Electronic System for Travel Authorization
prior to travel. See 8 CFR 217.5. There is a separate visa waiver
program for admission to Guam or the Commonwealth of the Northern
Mariana Islands for eligible travelers from 12 designated countries
and geographic areas for temporary visits for business or pleasure
for up to 45 days. See 8 CFR 212.1(q). Nonimmigrant aliens may be
eligible for travel to the United States without a visa under
additional authorities. See, e.g., 8 CFR 212.1; 22 CFR 41.2(l);
https://www.travel.state.gov/visa/temp/without/without_1990.html#countries.
Canadian citizens are permitted to enter the United States as
nonimmigrants without a visa for most purposes. However, certain
categories of Canadians are required to enter with a visa (falling
within the nonimmigrant visa categories E, K, S, or V). See 8 CFR
212.1(a)(1); 22 CFR 41.2(a).
Other regulatory provisions allow nationals of certain other
countries to enter the United States without a visa in limited
circumstances. See generally 8 CFR 212.1; 22 CFR 41.2. However, with
only very narrow exceptions, Mexican nationals generally require a
nonimmigrant visa (or a Border Crossing Card, Form DSP-150, which is
itself a visa) to be admitted to the United States. See 8 CFR
212.1(c); 22 CFR 41.2(g).
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Accordingly, this final rule makes conforming revisions to the
regulations in 27 CFR 478.32, 478.44, 478.45, 478.99, 478.120, and
478.124. The final rule also amends the regulations by adding a
definition for the term ``Nonimmigrant visa'' that mirrors the
definition in section 101(a)(26) of the INA (8 U.S.C. 1101(a)(26)). ATF
will be making conforming changes to the Form 4473 and its
instructions. ATF is also making purely clarifying changes to the
language of Sec. Sec. 478.44 and 478.45 to more clearly state the
statutory exceptions.
In addition, ATF is adding language in Sec. 478.120(a) (and will
also be revising the Form 6NIA) to make clear that nonimmigrants
lawfully admitted to the United States without a visa will continue to
be required to apply for and obtain an approved Form 6NIA if they are
temporarily importing or bringing firearms or ammunition into the
United States for lawful hunting or sporting purposes. The amended
Sec. 478.120, however, will no longer require nonimmigrant aliens
admitted to the United States without a visa to submit documentation
that they fall within one of the exceptions in 18 U.S.C. 922(y)(2) or
the waiver in section 922(y)(3).\4\ The existing provisions of Sec.
478.120 are being recodified in paragraph (b), which deals with aliens
who are admitted under a nonimmigrant visa (and who are required to
submit such documentation).
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\4\ Aliens who desire to import firearms or ammunition for other
than legitimate hunting or lawful sporting purposes may apply for an
import permit by filing an ATF Form 6--Part I.
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In the 2002 interim rule, ATF explained its reasons for imposing a
requirement that nonimmigrants bringing firearms and ammunition into
the United States for hunting or sporting purposes obtain an import
permit. See 67 FR at 5424; see also 27 CFR 478.115(e)
(``Notwithstanding the provisions of paragraphs (d) (1), (2), (3), (4)
and (5) of this section, the [Attorney General] or his delegate may in
the interest of public safety and necessity require a permit for the
importation or bringing into the United States of any firearms or
ammunition.''). Even though aliens admitted to the United States who
did not require a nonimmigrant visa will no longer be subject to the
nonimmigrant prohibition on possession of firearms, the 2002 interim
rule also cited two additional reasons for requiring all nonimmigrant
aliens seeking to bring firearms or ammunition into the United States
to obtain import permits: ``It will also enable ATF to be aware of non-
immigrant aliens who are bringing or attempting to bring firearms or
ammunition into the United States. Finally, it will ensure
nonimportable firearms and ammunition do not enter the United States.''
67 FR 5424. In short, the permit process is designed to ensure that the
nonimmigrant aliens can lawfully possess a firearm in the United States
(i.e., that they do not fall within any of the other statutory
prohibitions on possession of firearms) and it gives ATF an opportunity
to conduct a background check on the applicant if warranted.\5\ Thus,
the language of Sec. 478.120(a) makes no change in the status quo for
nonimmigrant aliens lawfully admitted to the United States without a
visa, except that they will no longer be required to submit
documentation that they fall within one of the statutory exceptions for
the nonimmigrant prohibition, consistent with the changes being made in
this final rule.
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\5\ Regulations at 28 CFR 25.6(j)(1) allow access to the
National Instant Criminal Background Check System Index for purposes
of providing information to federal agencies in connection with
issuance of a firearms-related or explosives-related permit or
license.
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The remaining issues raised in the interim rule (including other
issues with respect to the regulations in 27 CFR 478.120 on importation
of firearms and ammunition), along with a discussion of the comments
received in response to these aspects of the interim rule, will be
[[Page 33628]]
addressed in a separate, forthcoming final rule.\6\
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\6\ With respect to the concerns presented by DOD, ATF notes
that nonimmigrant aliens designated as distinguished foreign
visitors by the State Department, as well as foreign military
personnel, are exempt, under certain circumstances, from the general
prohibition on aliens possessing firearms in the United States.
Foreign military personnel are exempt from the prohibition when they
can verify that the firearm or ammunition they seek to possess is
for their exclusive use in performance of their official duties
while in the United States and that the firearm or ammunition will
be removed from the United States when they leave. This is
consistent with the information provided on ATF Form 6NIA (5330.3D),
Application/Permit for Temporary Importation of Firearms and
Ammunition by Nonimmigrant Aliens. General Information number 4
exempts certain diplomats, distinguished foreign visitors, law
enforcement officers of friendly foreign governments entering the
United States on official law enforcement business, and foreign
military officers entering the United States on official duty.
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How This Document Complies With the Federal Administrative Requirements
for Rulemaking
A. Executive Order 12866 and Executive Order 13563
This rule has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), Principles of Regulation, and with Executive Order 13563,
``Improving Regulation and Regulatory Review.'' The Department of
Justice has determined that this rule is a ``significant regulatory
action'' under Executive Order 12866, section 3(f), and accordingly
this rule has been reviewed by the Office of Management and Budget
(OMB). However, this rule will not have an annual effect on the economy
of $100 million, nor will it adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health, or safety, or State, local or tribal
governments or communities. Accordingly, this rule is not an
economically significant rulemaking action for purposes of review under
Executive Order 12866.
Further, the Department has assessed both costs and benefits of
this rule as required by Executive Order 12866, section 1(b)(6), and
has made a reasoned determination that the benefits of this regulation
justify the costs. The Department believes that the costs associated
with compliance with this final rule are minimal. This final rule does
not adversely affect U.S. businesses. This rule will simplify the
process for nonimmigrant aliens who were not admitted to the United
States under a nonimmigrant visa to purchase and rent items from these
businesses for legitimate purposes. There will be negligible cost or
time impact on individuals.
B. Executive Order 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, the Attorney General has determined that this
regulation does not have sufficient federalism implications to warrant
the preparation of a federalism summary impact statement.
C. Executive Order 12988
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice
Reform.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 605-612) requires an
agency to conduct a regulatory flexibility analysis of any rule subject
to notice and comment rulemaking requirements unless the agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. The Attorney General has reviewed this regulation and,
by approving it, certifies that this rule will not have a significant
economic impact on a substantial number of small entities.
Most U.S. firearms dealers should not be significantly impacted by
this final rule. The restrictions on the purchase of firearms by aliens
admitted under a nonimmigrant visa have not changed under this final
rule. (The provisions of the interim final rule relating to these
aliens, and the public comments concerning these provisions, will be
addressed in a separate, forthcoming final rule.) Individuals traveling
to the United States with a valid hunting license, or registrations or
invitations to trade shows or competitive sporting events, are still
able to purchase ammunition and accessories and rent firearms.
Additionally, nonimmigrant aliens may purchase firearms for export to
their home countries. Moreover, nonimmigrants admitted to the United
States who did not require a visa are no longer considered to be
prohibited, and accordingly they would not need to avail themselves of
the exceptions under 18 U.S.C. 922(y)(2) or the waiver under section
922(y)(3).
E. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
804. This rule 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.
F. Unfunded Mandates Reform Act of 1995
This rule will not 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 will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
G. Paperwork Reduction Act
The regulations that are being amended in this final rule revise
collections of information covered by the Paperwork Reduction Act of
1995, Public Law 104-13, 44 U.S.C. ch. 35, and its implementing
regulations, 5 CFR part 1320. The collections of information at
Sec. Sec. 478.44, 478.45, 478.120, and 478.124(c)(3)(iii), were
approved by OMB under control number 1140-0060 under the interim rule.
On November 15, 2011, the Department published a 60-day notice of
information collection in the Federal Register advising the public that
it was seeking an extension of the currently approved collection (1140-
0060) and requesting comments from the public and affected agencies on
the information collection (76 FR 70757). The comment period closed on
January 17, 2012. On January 20, 2012, the Department published a
notice in the Federal Register advising that it was seeking public
comment for an additional 30 days (77 FR 3006). The extended comment
period closed on February 21, 2012 (77 FR 4828, Jan. 31, 2012). ATF did
not receive any comments concerning the information collection.
However, ATF has advised OMB of certain changes that needed to be made
to the approved information collection as a result of this final rule,
e.g., number of respondents, burden hours, etc.
In addition, ATF requested emergency clearance from OMB of
revisions to
[[Page 33629]]
control number 1140-0020 (Form 4473) to conform with these regulatory
changes, and OMB approved those revisions on April 13, 2012, for a
period of 180 days.
ATF also intends to make revisions to Form 6NIA (approved by OMB
under control number 1140-0084), Form 7 (approved by OMB under control
number 1140-0018), and Form 7CR (approved by OMB under control number
1140-0038) to conform with the regulatory changes made in this final
rule. These information collections will be submitted to OMB for review
and approval. In the interim, to ensure that these forms are completed
in a way that conforms with this regulation, ATF will distribute an
informational notice with the affected forms notifying applicants of
the changes and providing clarification as to the proper completion of
the forms.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a valid
control number assigned by OMB.
Disclosure
Copies of the interim rule, the notice of proposed rulemaking
(NPRM), all comments received in response to the NPRM, and this final
rule will be available for public inspection by appointment during
normal business hours at: ATF Reading Room, Room 1E-062, 99 New York
Avenue NE., Washington, DC 20226; telephone: 202-648-8740.
Drafting Information
The author of this document is James P. Ficaretta, Enforcement
Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and
Explosives.
List of Subjects in 27 CFR Part 478
Administrative practice and procedure, Arms and ammunition,
Authority delegations, Customs duties and inspection, Domestic
violence, Exports, Imports, Law enforcement personnel, Military
personnel, Nonimmigrant aliens, Penalties, Reporting requirements,
Research, Seizures and forfeitures, and Transportation.
Authority and Issuance
Accordingly, for the reasons discussed in the preamble, 27 CFR part
478 is amended as follows:
PART 478--COMMERCE IN FIREARMS AND AMMUNITION
0
1. The authority citation for 27 CFR part 478 is revised 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. Section 478.11 is amended by adding a definition for the term
``Nonimmigrant visa'' in alphabetical order to read as follows:
Sec. 478.11 Meaning of terms.
* * * * *
Nonimmigrant visa. A visa properly issued to an alien as an
eligible nonimmigrant by a competent officer as provided in the
Immigration and Nationality Act, 8 U.S.C. 1101 et seq.
* * * * *
0
3. Section 478.32 is amended by revising the introductory text of
paragraphs (a)(5)(ii) and (d)(5)(ii), and by revising paragraph (f), to
read as follows:
Sec. 478.32 Prohibited shipment, transportation, possession, or
receipt of firearms and ammunition by certain persons.
(a) * * *
(5) * * *
(ii) Except as provided in paragraph (f) of this section, has been
admitted to the United States under a nonimmigrant visa: Provided, That
the provisions of this paragraph (a)(5)(ii) do not apply to any alien
who has been lawfully admitted to the United States under a
nonimmigrant visa, if that alien is--
* * * * *
(d) * * *
(5) * * *
(ii) Except as provided in paragraph (f) of this section, has been
admitted to the United States under a nonimmigrant visa: Provided, That
the provisions of this paragraph (d)(5)(ii) do not apply to any alien
who has been lawfully admitted to the United States under a
nonimmigrant visa, if that alien is--
* * * * *
(f) Pursuant to 18 U.S.C. 922(y)(3), any individual who has been
admitted to the United States under a nonimmigrant visa may receive a
waiver from the prohibition contained in paragraph (a)(5)(ii) of this
section if the Attorney General approves a petition for the waiver.
0
4. Section 478.44 is amended by revising paragraph (a)(1)(iii), and by
revising the second sentence in paragraph (b), to read as follows:
Sec. 478.44 Original license.
(a)(1) * * *
(iii) If the applicant (including, in the case of a corporation,
partnership, or association, any individual possessing, directly or
indirectly, the power to direct or cause the direction of the
management and policies of the corporation, partnership, or
association) is an alien who has been admitted to the United States
under a nonimmigrant visa, applicable documentation demonstrating that
the alien falls within an exception specified in 18 U.S.C. 922(y)(2)
(e.g., a hunting license or permit lawfully issued in the United
States) or has obtained a waiver as specified in 18 U.S.C. 922(y)(3);
and
* * * * *
(b) * * * If the applicant (including, in the case of a
corporation, partnership, or association, any individual possessing,
directly or indirectly, the power to direct or cause the direction of
the management and policies of the corporation, partnership, or
association) is an alien who has been admitted to the United States
under a nonimmigrant visa, the application must include applicable
documentation demonstrating that the alien falls within an exception
specified in 18 U.S.C. 922(y)(2) (e.g., a hunting license or permit
lawfully issued in the United States) or has obtained a waiver as
specified in 18 U.S.C. 922(y)(3). * * *
* * * * *
0
5. Section 478.45 is amended by revising the second sentence to read as
follows:
Sec. 478.45 Renewal of license.
* * * If the applicant is an alien who has been admitted to the
United States under a nonimmigrant visa, the application must include
applicable documentation demonstrating that the alien falls within an
exception specified in 18 U.S.C. 922(y)(2) (e.g., a hunting license or
permit lawfully issued in the United States) or has obtained a waiver
as specified in 18 U.S.C. 922(y)(3). * * *
* * * * *
0
6. Section 478.99 is amended by revising the introductory text of
paragraph (c)(5) to read as follows:
Sec. 478.99 Certain prohibited sales or deliveries.
* * * * *
(c) * * *
(5) Is an alien illegally or unlawfully in the United States or,
except as provided in Sec. 478.32(f), is an alien who has been
admitted to the United States under a nonimmigrant visa: Provided, That
the provisions of this paragraph (c)(5) do not apply to any alien who
has been lawfully admitted to the United States under a nonimmigrant
visa if that alien is--
* * * * *
0
7. Section 478.120 is revised to read as follows:
[[Page 33630]]
Sec. 478.120 Firearms or ammunition imported by or for a nonimmigrant
alien.
(a) General. A nonimmigrant alien temporarily importing or bringing
firearms or ammunition into the United States for lawful hunting or
sporting purposes must first obtain an approved ATF Form 6NIA
(5330.3D).
(b) Aliens admitted to the United States under a nonimmigrant visa.
(1) Any alien lawfully admitted to the United States under a
nonimmigrant visa who completes an ATF Form 6NIA to import firearms or
ammunition into the United States, or any licensee who completes an ATF
Form 6 to import firearms or ammunition for such nonimmigrant alien,
must attach applicable documentation to the Form 6NIA or Form 6
establishing the nonimmigrant alien falls within an exception specified
in 18 U.S.C. 922(y)(2) (e.g., a hunting license or permit lawfully
issued in the United States) or has obtained a waiver as specified in
18 U.S.C. 922(y)(3).
(2) Aliens admitted to the United States under a nonimmigrant visa
importing or bringing firearms or ammunition into the United States
must provide the United States Customs and Border Protection with
applicable documentation (e.g., a hunting license or permit lawfully
issued in the United States) establishing the nonimmigrant alien falls
within an exception specified in 18 U.S.C. 922(y)(2) or has obtained a
waiver as specified in 18 U.S.C. 922(y)(3) before the firearm or
ammunition may be imported. This provision applies in all cases,
whether or not a Form 6 is needed to bring the firearms or ammunition
into the United States.
(Approved by the Office of Management and Budget under control number
1140-0060)
0
8. Section 478.124 is amended by revising paragraph (c)(3)(iii) to read
as follows:
Sec. 478.124 Firearms transaction record.
* * * * *
(c) * * *
(3) * * *
(iii) Must, in the case of a transferee who is an alien admitted to
the United States under a nonimmigrant visa who states that he or she
falls within an exception to, or has a waiver from, the prohibition in
section 922(g)(5)(B) of the Act, have the transferee present applicable
documentation establishing the exception or waiver, note on the Form
4473 the type of documentation provided, and attach a copy of the
documentation to the Form 4473; and
* * * * *
Dated: June 1, 2012.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2012-13762 Filed 6-6-12; 8:45 am]
BILLING CODE 4410-FY-P
