2012-2472. Importation of Arms, Ammunition and Implements of War and Machine Guns, Destructive Devices, and Certain Other Firearms; Extending the Term of Import Permits (2010R-26P)

AGENCY:

Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), Department of Justice.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Department of Justice is proposing to amend the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to extend the term of import permits for firearms, ammunition, and defense articles from 1 year to 2 years. The additional time will allow importers sufficient time to complete the importation of the authorized commodity. In addition, it will eliminate the need for the importer to submit a new import application, ATF Form 6, where the importation was not completed within the 1-year period. Extending the term of import permits will result in a substantial cost and time savings for both the industry and ATF. This proposed change would be consistent with Executive Order 13563 of January 18, 2011, which directs agencies to review existing significant rules to make regulatory programs more effective or less burdensome in achieving regulatory objectives.

DATES:

Written comments must be postmarked and electronic comments must be submitted on or before May 7, 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—

• Deborah G. Szczenski, Industry Operations Specialist, Mailstop 6N-602, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Avenue NE., Washington, DC 20226; ATTN: ATF 43P. Written comments must appear in minimum 12-point size of type (.17 inches), include the commenter's mailing address, be signed, and may be of any length.
• [phone] (facsimile).
• http://www.regulations.gov. Federal eRulemaking portal; follow the instructions for submitting comments.

You may also view an electronic version of this proposed 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:

Deborah G. Szczenski, 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: [phone].

SUPPLEMENTARY INFORMATION:

I. Background

The Attorney General is responsible for enforcing the provisions of section 38 of the Arms Export Control Act of 1976 (AECA), 22 U.S.C. 2778, that relate to the importation of defense articles and defense services, and also for enforcing the provisions of the National Firearms Act (NFA), 26 U.S.C. Chapter 53. The Attorney General is also responsible for enforcing the provisions of the Gun Control Act of 1968 (GCA), 18 U.S.C. Chapter 44, relating to commerce in firearms and ammunition. He has delegated all of those responsibilities to the Director of ATF (“Director”), subject to the direction of the Attorney General and the Deputy Attorney General. 28 CFR 0.130.

A. Importation of Arms, Ammunition, and Implements of War (27 CFR Part 447)

Regulations that implement the provisions of the AECA that are concerned with the importation of arms, ammunition, and implements of war are set forth in 27 CFR part 447. The regulation at 27 CFR 447.41(a) generally provides that articles on the U.S. Munitions Import List may not be imported into the United States except pursuant to a permit. Section 447.42(a) states that persons required to obtain a permit must file with ATF an ATF Form 6—Part I (5330.3A), Application and Permit for Importation of Firearms, Ammunition, and Implements of War (“ATF Form 6”). The application must be signed and dated and must contain the information requested on the form, including:

1. The name, address, telephone number, license and registration number, if any (including expiration date), of the importer;

2. The country from which the defense article is to be imported;

3. The name and address of the foreign seller and foreign shipper;

4. A description of the defense article to be imported, including—

a. The name and address of the manufacturer;

b. The type (e.g., rifle, shotgun, pistol, revolver, aircraft, vessel, and in the case of ammunition only, ball, wadcutter, shot, etc.);

c. The caliber, gauge, or size;

d. The model;

e. The length of barrel, if any (in inches);

f. The overall length, if a firearm (in inches);

g. The serial number, if known;

h. Whether the defense article is new or used;

i. The quantity;

j. The unit cost of the firearm, firearm barrel, ammunition, or other defense article to be imported;

k. The category of U.S. Munitions Import List under which the article is regulated;

5. The specific purpose of importation, including final recipient information if different from the importer; and

6. Certification of origin.

Section 447.43(a) provides that import permits are valid for 1 year from their issuance date unless a different period of validity is stated thereon. Furthermore, under § 447.43(b), if shipment cannot be completed during the period of validity of the permit, another application must be submitted for a permit to cover the unshipped balance.

B. Importation of Machine Guns, Destructive Devices, and Certain Other Firearms Under the NFA (27 CFR Part 479)

Regulations that implement the provisions of the NFA are set forth in 27 CFR part 479, which contains the procedural and substantive requirements relative to the importation, manufacture, making, exportation, transfer, taxing, identification and registration of, and the dealing in, machine guns, destructive devices, and certain other firearms. With respect to NFA firearms, the regulation at 27 CFR 479.111(a) provides that no firearm may be imported or brought into the United States or any territory under its control or jurisdiction unless the person importing or bringing in the firearm establishes to the satisfaction of the Director that the firearm to be imported or brought in is being imported or brought in for certain specified purposes, e.g., scientific or research purposes. This paragraph further provides that any person desiring to import or bring a firearm into the United States must file with the Director an application on ATF Form 6. As specified, the approval of an application to import a firearm shall be automatically terminated at the expiration of 1 year from the date of approval unless, upon request, it is further extended by the Director.

Section 479.113 provides that the Director shall permit the conditional importation of any NFA firearm for the purpose of examining and testing to determine whether the importation of such firearm will be authorized. As specified, an application on ATF Form 6 shall be filed with the Director. The Director may impose conditions upon any importation, and the person importing the firearm must agree to either export or destroy the weapon if a final determination is made that it may not be imported.

C. Importation of Firearms and Ammunition (27 CFR Part 478)

Regulations in Subpart G of part 478 provide the procedural and substantive requirements of the GCA relative to the importation of firearms and ammunition. Section 478.112 states that no firearm, firearm barrel, or ammunition shall be imported or brought into the United States by a licensed importer unless the Director has authorized the importation of the firearm, firearm barrel, or ammunition. This section further provides that the licensed importer must file with the Director an application for a permit, ATF Form 6, to import or bring a firearm, firearm barrel, or ammunition into the United States. If the Director approves the application, such approved application will serve as the permit to import the firearm, firearm barrel, or ammunition described on the permit, and importation of such firearms, firearm barrels, or ammunition may continue to be made by the licensed importer under the approved application (permit) during the period specified on the permit.

Similar procedures are set forth in section 478.113 with respect to the importation of a firearm, firearm barrel, or ammunition into the United States by a licensee other than a licensed importer.

Requirements for the conditional importation of firearms, firearm barrels, and ammunition for the purpose of examination and testing to determine whether the Director will authorize their importation are set forth in § 478.116. This section provides that an application on ATF Form 6 for such conditional importation must be filed with the Director. If approved, the Director may impose conditions on the importation, and the person importing the firearm, firearm barrel, or ammunition must agree to either export or destroy the imported item if it is determined that the item may not be imported.

II. FAIR Trade Group Petition

ATF received a petition, dated August 10, 2010, filed on behalf of the FireArms Import-Export Roundtable (FAIR) Trade Group. As stated in the petition, FAIR is an organization that represents importers and exporters of firearms, ammunition, firearms parts, and accessories. The petitioner requested an amendment of the regulations to change the ATF Form 6 period of validity from 1 year to 2 years. According to the petitioner, this amendment would be beneficial to both the industry and to ATF, without having any impact on public safety or compliance with the law. As stated in the petition:

[E]xtending the period a license [permit] is valid could reduce the workload for [ATF] examiners by lowering the number of renewals submitted to ATF and reduce the uncertainty importers face when dealing with long-lead time deals. [Many licensed and/or registered importers import the same defense articles year after year. ATF processes these “renewal” permits.]

Renewals are a relatively common procedure—whether for items stored in a CBD [sic] or for transactions that take longer than a year to complete—that the industry must undertake at this time. Renewals of existing permits are perfunctory processes that consume the valuable resources of both the industry and the ATF. The time necessary to log, process and approve these permits does not appear to provide any additive compliance or enforcement value to the importation process.

The petitioner contends that extending the term of an import permit from 1 year to 2 years will not significantly impact compliance with the law and that “ATF would clearly retain all authorities to revoke permits should such action be necessary based on changes to the law, interpretations of the law, or changes to the regulations governing imports.”

Of the approximately 11,000 ATF Form 6 import applications ATF processes each year, 9,000 are submitted by an ATF licensed or registered importer. Subsequent information provided by the petitioner indicates that the renewal rate on import permits for industry members is approximately 50 percent. If the term of an import permit is changed from 1 year to 2 years, ATF estimates the number of import permit applications submitted by licensed or registered importers would be reduced to 4,500 each year. This would result in significant economic savings for both the industry and ATF. As indicated, there is a substantial amount of information requested on the import permit application. ATF estimates that it takes a compliance officer employed by a federally licensed or registered importer approximately 30 minutes to complete an ATF Form 6 permit application. According to the Occupational Employment Statistics (May 2009), published by the Bureau of Labor Statistics, U.S. Department of Labor, the average hourly wage of a compliance officer is $26.50. Reducing the number of permits submitted by the industry by half (4,500) would result in an annual savings of approximately $59,625.

Increasing the term of an import permit to 2 years would also result in an economic benefit for ATF. ATF employs data entry contractors who spend an average of 2 hours completing quality review and data entry functions for each import application. The average salary of a contractor is $14 per hour. ATF examiners typically spend 4 hours processing an ATF Form 6 application. The average hourly rate for an examiner is $24.74. If the number of applications was reduced to 4,500 each year, the annual savings to ATF would be approximately $571,320.

III. Proposed Rule—Extending the Term of Import Permits From 1 Year to 2 Years

The Department has determined that an amendment of the regulations to extend the term of import permits for firearms, ammunition, and defense articles from 1 year to 2 years is warranted. The additional time will allow importers sufficient time to complete the importation of the authorized commodity, and will eliminate the need for the importers to submit a new import application when the importation is not completed within the 1-year period. Accordingly, in order to reduce the paperwork burden on the industry and to increase the efficiency of ATF in processing requests for importation, the Department is proposing to amend the regulations in parts 447 and 479 to increase the term of import permits from 1 year to 2 years.

The regulations in part 478 do not specify the period of validity for import permits as 1 year, and therefore, the Department is not proposing to amend the regulations in part 478. The regulations in part 478 provide that importation may continue to be made by the applicant during the period specified on the approved application (permit). As stated on the ATF Form 6, the permit is valid for 12 months from the Director's approval date on the permit. If this proposed rule is adopted, the ATF Form 6 will be revised to reflect the amended period of validity for importation as 2 years from the Director's approval date on the permit.

The term of validity for import permits filed by members of the United States military returning to the United States from abroad with firearms and for non-immigrant aliens temporarily importing firearms into the United States for lawful hunting and sporting purposes is unaffected by this proposed rule and will remain at 1 year.

IV. How This Document Complies With the Federal Administrative Requirements for Rulemaking

A. Executive Orders 12866 and 13563

This proposed rule has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), Principles of Regulation and in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review,” section 1(b) General Principles of Regulation and section 6 Retrospective Analysis of Existing Rules. The Department of Justice has determined that this proposed rule is a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this proposed rule has been reviewed by the Office of Management and Budget.

Further, both Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has assessed the costs and benefits of this regulation and believes that the regulatory approach selected maximizes net benefits.

This proposed 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 proposed rule is not an “economically significant” rulemaking as defined by Executive Order 12866.

Executive Order 13563 section 6, Retrospective Analysis of Existing Rules, directs agencies to develop a plan to review existing significant rules that may be “outmoded, ineffective, insufficient, or excessively burdensome,” and to make appropriate changes where warranted. The Department selected and reviewed this rule under the criteria set forth in its Plan for Retrospective Analysis of Existing Rules. During this review, ATF calculated that it processes approximately 11,000 import applications each year. Approximately 82 percent of those applications (9,000) are submitted by federally licensed or registered importers. ATF estimates that it takes a compliance officer employed by a federally licensed or registered importer approximately 30 minutes to complete an ATF Form 6 permit application. According to the Occupational Employment Statistics (May 2009), published by the Bureau of Labor Statistics, U.S. Department of Labor, the average hourly wage of a compliance officer is $26.50. If the term of an import permit was extended to 2 years, ATF estimates that the number of ATF Form 6 permit applications submitted by licensed or registered importers would be reduced to 4,500 each year. Reducing the number of permits submitted by the industry by half (4,500) would result in an annual savings of approximately $59,625.

Increasing the term of an import permit to 2 years would also result in an economic benefit for ATF. ATF employs data entry contractors who spend an average of 2 hours completing quality review and data entry functions for each import application. The average salary of a contractor is $14 per hour. ATF examiners typically spend 4 hours processing an ATF Form 6 application. The average hourly rate for an examiner is $24.74. If the number of applications was reduced to 4,500 each year, the annual savings to ATF would be approximately $571,320. The Department invites comments on whether this proposed revision will reduce the administrative burdens on the industry and ATF as anticipated, thereby making this rule less burdensome in achieving its regulatory objectives, consistent with Executive Order 13563.

B. Executive Order 13132

This proposed regulation will not have substantial direct effects on the States, on the relationship between the Federal 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 proposed regulation will not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

C. Executive Order 12988

This proposed 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(b)) 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 proposed rule and, by approving it, certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities.

The Department believes that this proposed rule will have a positive economic impact on both the industry and ATF. The number of permits and the time required for industry to file those permits and for ATF to process them will be significantly reduced.

An industry compliance officer spends approximately 30 minutes completing an ATF Form 6. According to the Occupational Employment Statistics (May 2009), published by the Bureau of Labor Statistics, United States Department of Labor, the average hourly wage of a compliance officer is $26.50. Reducing the number of permits submitted by the industry by half (4,500) would result in an annual savings of approximately $59,625.

E. Small Business Regulatory Enforcement Fairness Act of 1996

This proposed 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 proposed 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 companies to compete with foreign-based companies in domestic and export markets.

F. Unfunded Mandates Reform Act of 1995

This proposed 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

This proposed rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act. ATF Form 6 currently states that a permit is valid for 12 months from the Director's date of approval, which is specified on the permit. If this proposed rule is adopted, the ATF Form 6 will be revised under currently approved OMB control number 1140-0005 to reflect the 2 year (24 months) amended period of validity for import permits.

Public Participation

A. Comments Sought

ATF is requesting comments on the proposed rule from all interested persons. All comments must reference this document docket number (ATF 43P), be legible, and include your name and mailing address. ATF will treat all comments as originals and will not acknowledge receipt of comments.

Comments received on or before the closing date will be carefully considered. Comments received after that date will be given the same consideration if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before the closing date.

B. Confidentiality

Comments, whether submitted electronically or in paper, will be made available for public viewing at ATF, and on the Internet as part of the eRulemaking initiative, and are subject to the Freedom of Information Act. Commenters who do not want their name or other personal identifying information posted on the Internet should submit their comment by mail or facsimile, along with a separate cover sheet that contains their personal identifying information. Both the cover sheet and comment must reference this docket number. Information contained in the cover sheet will not be posted on the Internet. Any personal identifying information that appears within the comment will be posted on the Internet and will not be redacted by ATF.

Any material that the commenter considers to be inappropriate for disclosure to the public should not be included in the comment. Any person submitting a comment shall specifically designate that portion (if any) of his comments that contains material that is confidential under law (e.g., trade secrets, processes, etc.). Any portion of a comment that is confidential under law shall be set forth on pages separate from the balance of the comment and shall be prominently marked “confidential” at the top of each page. Confidential information will be included in the rulemaking record but will not be disclosed to the public. Any comments containing material that is not confidential under law may be disclosed to the public. In any event, the name of the person submitting a comment is not exempt from disclosure.

C. Submitting Comments

Comments may be submitted in any of three ways:

• Mail: Send written comments to the address listed in the ADDRESSES section of this document. Written comments must appear in minimum 12-point size of type (.17 inches), include the commenter's mailing address, be signed, and may be of any length.
• Facsimile: You may submit comments by facsimile transmission to [phone]. Faxed comments must:

(1) Be legible and appear in minimum 12-point size of type (.17 inches);

(2) Be on 81/2″ × 11″ paper;

(3) Contain a legible, written signature; and

(4) Be no more than five pages long. ATF will not accept faxed comments that exceed five pages.

• Federal eRulemaking Portal: To submit comments to ATF via the Federal eRulemaking portal, visit http://www.regulations.gov and follow the instructions for submitting comments.

D. Request for Hearing

Any interested person who desires an opportunity to comment orally at a public hearing should submit his or her request, in writing, to the Director of ATF within the 90-day comment period. The Director, however, reserves the right to determine, in light of all circumstances, whether a public hearing is necessary.

Disclosure

Copies of this proposed rule and the comments received 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: [phone].

Drafting Information

The author of this document is Deborah G. Szczenski; Enforcement Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and Explosives.

List of Subjects

27 CFR Part 447

• Administrative practice and procedure
• Arms control
• Arms and munitions
• Authority delegations
• Chemicals
• Customs duties and inspection
• Imports
• Penalties
• Reporting and recordkeeping requirements
• Scientific equipment
• Seizures and forfeitures

27 CFR Part 479

• Administrative practice and procedure
• Arms and munitions
• Authority delegations
• Customs duties and inspection
• Exports
• Imports
• Military personnel
• Penalties
• Reporting and recordkeeping requirements
• Research
• Seizures and forfeitures
• Transportation

Authority and Issuance

Accordingly, for the reasons discussed in the preamble, 27 CFR parts 447 and 479 are proposed to be amended as follows:

PART 447—IMPORTATION OF ARMS, AMMUNITION AND IMPLEMENTS OF WAR

1. The authority citation for 27 CFR part 447 continues to read as follows:

Authority: 22 U.S.C. 2778.

§ 447.43

[Amended]

2. Section 447.43 is amended by removing the phrase “one year” in paragraph (a) and adding in its place the phrase “two years”.

PART 479—MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN OTHER FIREARMS

3. The authority citation for 27 CFR part 479 continues to read as follows:

Authority: 26 U.S.C. 7805.

§ 479.111

[Amended]

4. Section 479.111 is amended by removing the phrase “one year” in the eighth sentence in paragraph (a)(3) and adding in its place the phrase “two years”.

Dated: January 30, 2012.

Eric H. Holder, Jr.,

Attorney General.