Justice Dept. Issues Final Rule On Firearms Disabilities For Some Nonimmigrant Aliens

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[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]

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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.

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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, fianc[eacute]e(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\
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    \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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    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.
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    \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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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);
http://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

Agency: