SUPPLEMENTARY INFORMATION:

I. Background

The Arms Export Control Act of 1976 (“AECA”) governs importing and exporting defense articles and services. 22 U.S.C. 2751 et seq. Defense articles and services include firearms, firearm parts, ammunition, and certain other military equipment subject to the AECA. Section 38 of the AECA, codified at 22 U.S.C. 2778, authorizes the President of the United States to control such imports and exports in furtherance of world peace and the security and foreign policy of the United States. In 2013, through Executive Order 13637,^[1] the President delegated to the Secretary of State the AECA section 38 function except as otherwise provided in section 1(n) of the order. The delegation includes, in relevant part, providing foreign policy guidance to persons of the United States involved in exporting and importing defense articles and services. See22 U.S.C. 2778(a)(1); E.O. 13637, sec. 1(n), 78 FR 16130. The Department of State promulgates regulations pursuant to its delegated AECA section 38 authorities in the International Traffic in Arms Regulations (“ITAR”), at 22 CFR parts 120-130.

Within Executive Order 13637, the President also delegated to the Attorney General the AECA section 38 functions that relate to controlling permanent imports of defense articles and services. In turn, the Attorney General has delegated the responsibility for administering and enforcing section 38 of the AECA (relating to importing items on the United States Munitions Imports List and importing defense articles and services) to the Director of ATF (“Director”), subject to the direction of the Attorney General and the Deputy Attorney General. See28 CFR 0.130(a)(6)(vi), (c).^[2 3]

In carrying out such functions, the Attorney General, and, pursuant to the Attorney General's delegated authority, the Director “shall be guided by the views of the Secretary of State on matters affecting world peace, and the external security and foreign policy of the United States.” E.O. 13637, sec. (1)(n)(ii), 78 FR 16130; see also27 CFR 447.55.

ATF enumerates defense articles and services subject to the AECA's permanent importing provisions in its regulations under the United States Munitions Imports List (“USMIL”). See27 CFR 447.21. Defense articles under the USMIL also include the “components,” “accessories,” “attachments,” and “parts” of the defense article. For example, USMIL Category I-Firearms includes “[n]onautomatic and semiautomatic firearms, to caliber .50 inclusive, combat ( printed page 24393) shotguns, and shotguns with barrels less than 18 inches in length, and all components and parts for such firearms,” as well as “[a]utomatic firearms and all components and parts for such firearms to caliber .50 inclusive.” 27 CFR 447.21 (emphasis added). However, the USMIL regulation does not define these compositional terms, nor do ATF's other AECA regulations.

The Department of State's ITAR provisions regulate defense articles and services enumerated on the United States Munitions List (“USML”). 22 CFR 121.1. Like the USMIL, the USML includes “[p]arts, components, accessories, and attachments” of defense articles. 22 CFR 121.1. But unlike the USMIL and ATF's other implementing regulations, the ITAR defines these compositional terms. 22 CFR 120.40.

II. Proposed Rule

When ATF examines importing applications that include accessories, attachments, components, or parts, ATF uses either a determination previously made by the Department of State regarding whether a defense article is an accessory, attachment, component, or part; or ATF's Firearms and Ammunition Technology Division classifies the article relying on the ITAR definitions set forth in 22 CFR 120.40. Because ATF is guided by and largely relies on the Department of State's views on foreign policy and matters of national security for purposes of the AECA,^[4] ATF proposes to add the compositional terms defined in 22 CFR 120.40—“accessories and attachments,” “component,” and “part”—to its AECA regulations so that ATF's regulations include definitions for these terms and the definitions align with those in the ITAR.

Applying the ITAR's definition of “part” to the USMIL, however, would require ATF to clarify the defense articles included under Category I—Firearms. 27 CFR 447.21. That category regulates “components and parts” but not “accessories and attachments.” 27 CFR 447.21. Yet the ITAR definition for “part” would include “any single unassembled element of a major or a minor component, accessory, or attachment. . .” 22 CFR 120.40 (emphasis added). Fully applying the ITAR definition of “part” to the USMIL Category I—Firearms would consequently lead to the result that unassembled accessories or attachments (falling under the definition of “part”) would be regulated while complete accessories or attachments would not. Therefore, ATF proposes to use paragraph (e) of Category I—Firearms, which is currently reserved, to add a sentence clarifying that “components and parts” does not include unassembled elements of an accessory or attachment. Category I—Firearms would thus include components of regulated firearms as well as unassembled elements of a component, but it would exclude assembled or unassembled attachments and accessories.

Adding the ITAR's definitions would better inform importers of defense articles under the AECA and enable ATF to define these terms consistently when approving or denying import applications. The changes would also ensure that ATF and the Department of State align in how they use these compositional terms with respect to the USMIL and USML. And the proposed clarification within the USMIL would retain the current scope of defense articles regulated under USMIL Category I—Firearms.

III. Statutory and Executive Order Review

A. Executive Orders 12866 and 13563

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits.

Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of agencies quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting public flexibility.

This proposed rule would amend the current regulation at 27 CFR 447.11 to include the definitions of “component,” “accessories and attachments,” and “part,” and to track those definitions with the Department of State's ITAR provisions at 22 CFR 120.40.

The Office of Management and Budget (“OMB”) has determined that this proposed rule would not be a “significant regulatory action” under Executive Order 12866. Therefore, it did not review this rule. This proposed rule would simply add three well-established definitions, with a minor adjustment to one term, to ATF's regulations, but it would make no additional changes to existing obligations, required by the Department of State. This rulemaking would provide qualitative benefits to the public in the form of consistency across Departments.

B. Executive Order 14192

Executive Order 14192 (Unleashing Prosperity Through Deregulation) requires an agency, unless prohibited by law, to identify at least ten existing regulations to be repealed or revised when the agency publicly proposes for notice and comment or otherwise promulgates a new regulation that qualifies as an Executive Order 14192 regulatory action (defined in OMB Memorandum M-25-20 as a final significant regulatory action under section 3(f) of Executive Order 12866 that imposes total costs greater than zero). In furtherance of this requirement, section 3(c) of Executive Order 14192 requires that any new incremental costs associated with such new regulations must, to the extent permitted by law, also be offset by eliminating existing costs associated with at least ten prior regulations. However, this proposed rule would not be an Executive Order 14192 regulatory action because it is not a significant regulatory action as defined by Executive Order 12866 and it would not impose total costs greater than zero. It imposes no costs and is also not significant because it incorporates definitions from the ITAR for consistency between agencies without changing importer requirements.

C. Executive Order 14294

Executive Order 14294 (Fighting Overcriminalization in Federal Regulations) requires agencies promulgating regulations with criminal regulatory offenses potentially subject to criminal enforcement to explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the mens rea standard applicable to each element of those offenses. This proposed rule would not create a criminal regulatory offense and is thus exempt from Executive Order 14294 requirements.

D. Executive Order 13132

This proposed rule would not have substantial direct effects on the states, the relationship between the federal government and the states, or the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132 (Federalism), the Director has determined that this proposed rule would not impose substantial direct compliance costs on state and local governments, preempt state law, or meaningfully implicate federalism. It thus does not warrant preparing a federalism summary impact statement. ( printed page 24394)

E. Executive Order 12988

This proposed rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform).

F. Regulatory Flexibility Act

Under the Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601-612, agencies are required to conduct a regulatory flexibility analysis of any proposed rule subject to notice-and-comment rulemaking requirements unless the agency head certifies, including a statement of the factual basis, that the proposed rule would not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). Small entities include certain small businesses, small not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. 5 U.S.C. 601(6).

The Director certifies, after consideration, that this proposed rule would not have a significant economic impact on a substantial number of small entities or any entities because it utilizes definitions already used by the industry and ATF for importing and exporting defense articles.

G. Unfunded Mandates Reform Act of 1995

This proposed rule does not include a federal mandate that might 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 would not significantly or uniquely affect small governments. Therefore, ATF has determined that no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See2 U.S.C. 1501 et seq.

H. Paperwork Reduction Act of 1995

Under the Paperwork Reduction Act of 1995 (“PRA”), 44 U.S.C. 3501-3521, agencies are required to submit to OMB, for review and approval, any information collection requirements created by a rule or any impacts it has on existing information collections. An information collection includes any reporting, recordkeeping, monitoring, posting, labeling, or other similar actions an agency requires of the public. See5 CFR 1320.3(c). This proposed rule would not create any new information collection requirements or impact any existing ones covered by the PRA.

I. Congressional Review Act

This proposed rule would not be a major rule as defined by the Congressional Review Act, 5 U.S.C. 804.

IV. Public Participation

A. Comments Sought

ATF requests comments on the proposed rule from all interested persons. ATF specifically requests comments on the clarity of this proposed rule and how it may be made easier to understand. In addition, ATF requests comments on the costs or benefits of the proposed rule and on the appropriate methodology and data for calculating those costs and benefits.

All comments must reference this document's RIN 1140-AA77 and, if handwritten, must be legible. If submitting by mail, you must also include your complete first and last name and contact information. If submitting a comment through the federal e-rulemaking portal, as described in section IV.C of this preamble, you should carefully review and follow the website's instructions on submitting comments. Whether you submit comments online or by mail, ATF will post them online. If submitting online as an individual, any information you provide in the online fields for city, state, zip code, and phone will not be publicly viewable when ATF publishes the comment on https://www.regulations.gov. However, if you include such personally identifying information (“PII”) in the body of your online comment, it may be posted and viewable online. Similarly, if you submit a written comment with PII in the body of the comment, it may be posted and viewable online. Therefore, all commenters should review section IV.B of this preamble, “Confidentiality,” regarding how to submit PII if you do not want it published online. ATF may not consider, or respond to, comments that do not meet these requirements or comments containing excessive profanity. ATF will retain comments containing excessive profanity as part of this rulemaking's administrative record but will not publish such documents on https://www.regulations.gov. ATF will treat all comments as originals and will not acknowledge receipt of comments. In addition, if ATF cannot read your comment due to handwriting or technical difficulties and cannot contact you for clarification, ATF may not be able to consider your comment.

ATF will carefully consider all comments, as appropriate, received on or before the closing date.

B. Confidentiality

ATF will make all comments meeting the requirements of this section, whether submitted electronically or on paper, and except as provided below, available for public viewing on the internet through the federal e-rulemaking portal, and subject to the Freedom of Information Act (5 U.S.C. 552). Commenters who submit by mail and who do not want their name or other PII posted on the internet should submit their comments with a separate cover sheet containing their PII. The separate cover sheet should be marked with “CUI//PRVCY” at the top to identify it as protected PII under the Privacy Act. Both the cover sheet and comment must reference this RIN 1140-AA77. For comments submitted by mail, information contained on the cover sheet will not appear when posted on the internet, but any PII that appears within the body of a comment will not be redacted by ATF and may appear on the internet. Similarly, commenters who submit through the federal e-rulemaking portal and who do not want any of their PII posted on the internet should omit such PII from the body of their comment and any uploaded attachments. However, PII entered into the online fields designated for name, email, and other contact information will not be posted or viewable online.

A commenter may submit to ATF information identified as proprietary or confidential business information by mail. To request that ATF handle this information as controlled unclassified information (“CUI”), the commenter must place any portion of a comment that is proprietary or confidential business information under law or regulation on pages separate from the balance of the comment, with each page prominently marked “CUI//PROPIN” at the top of the page.

ATF will not make proprietary or confidential business information submitted in compliance with these instructions available when disclosing the comments that it receives, but will disclose that the commenter provided proprietary or confidential business information that ATF is holding in a separate file to which the public does not have access. If ATF receives a request to examine or copy this information, it will treat it as any other request under the Freedom of Information Act (5 U.S.C. 552). In addition, ATF will disclose such proprietary or confidential business information to the extent required by other legal process. ( printed page 24395)

C. Submitting Comments

Submit comments using either of the two methods described below (but do not submit the same comment multiple times or by more than one method). Hand-delivered comments will not be accepted.

• Federal e-rulemaking portal: ATF recommends that you submit your comments to ATF via the federal e-rulemaking portal at https://www.regulations.gov and follow the instructions. Comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that is provided after you have successfully uploaded your comment.
• Mail: Send written comments to the address listed in the ADDRESSES section of this document. Written comments must appear in minimum 12-point font size, include the commenter's first and last name and full mailing address, and may be of any length. See also section IV.B of this preamble, “Confidentiality.”

Disclosure

Copies of this proposed rule and the comments received in response to it are available through the federal e-rulemaking portal, at https://www.regulations.gov (search for RIN 1140-AA77).

For the reasons discussed in the preamble, ATF proposes to amend 27 CFR part 447 as follows:

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

Authority: 22 U.S.C. 2778; E.O. 13637, 78 FR 16129 (March 8, 2013).

2. Amend § 447.11 by adding, in alphabetical order, definitions for “Accessories and attachments”, “Component”, and “Part”.

The additions read as follows:

3. Revise § 447.21, “Category I—Firearms,” paragraph (e), currently reserved, to read as follows:

91 FR 24392