[Federal Register Volume 77, Number 110 (Thursday, June 7, 2012)]
[Rules and Regulations]
[Pages 33625-33630]
From the Federal Register Online via the Government Publishing 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