Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations 33625 

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 

Because this rule involves a foreign 

affairs function of the United States, it 

is not subject to Executive Order 12866. 

Signing Authority 

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: 

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; 

* * * * * 

§ 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) 

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, fiance ́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 


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33626 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations 

1The 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). 

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

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. 


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Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations 33627 

2Memorandum 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). 

3Under 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). 

4Aliens 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. 

5Regulations 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. 

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 

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 

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 


wreier-aviles on DSK5TPTVN1PROD with RULES
33628 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations 

6With 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. 

addressed in a separate, forthcoming 

final rule.6

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 foreignbased 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 §§ 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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Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations 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 

■ 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). 

■ 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 

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: 


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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. 

* * * * * 

(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 

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) 

AGENCY: Bureau of Alcohol, Tobacco, 

Firearms, and Explosives (ATF), 

Department of Justice. 

ACTION: Interim final rule with request 

for comments. 

SUMMARY: The Department of Justice is 

amending the regulations of the Bureau 

of Alcohol, Tobacco, Firearms, and 

Explosives (ATF) by removing the 90- 

day 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). 

• http://www.regulations.gov. Federal 

eRulemaking portal; follow the 

instructions for submitting comments. 

You may also view an electronic 

version of this rule at the http:// 

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: 

I. Background 

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 


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