SUPPLEMENTARY INFORMATION:

I. Background

The Attorney General is responsible for enforcing the National Firearms Act (“NFA”), as amended, 26 U.S.C. chapter 53.^[1] Congress and the Attorney General have delegated the responsibility for administering and enforcing the NFA to the Director of ATF (“Director”), subject to the direction of the Attorney General and the Deputy Attorney General. See28 U.S.C. 599A(b)(1), (c)(1); 28 CFR 0.130(a)(1)-(2); Treas. Order No. 221(2)(a), (d), 37 FR 11696-97 (June 10, 1972).^[2] Accordingly, the Department and ATF have promulgated regulations to implement the NFA in 27 CFR part 479.

Through Executive Order 13637, the President delegated authorities under the Arms Export Control Act (“AECA”) to the Secretary of State, including controls for exporting and temporarily importing defense articles and defense services. E.O. 13637, sec. 1(n)(i), 78 FR 16129 (Mar. 8, 2013). The International Traffic in Arms Regulations (“ITAR”), 22 CFR part 120 et seq., implements the Secretary of State's delegated AECA authorities and enumerates the defense articles and defense services the Secretary of State regulates for export and temporary import purposes on the regulatory United States Munitions List (“USML”) at 22 CFR 121.1.

Additionally, the President delegated to the Attorney General authority under the AECA to control permanently importing defense articles and defense services. SeeE.O. 13637, sec. 1(n)(ii). In exercising that authority, the Attorney General “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.” Id. The Attorney General has delegated this AECA permanent import control authority to ATF. See28 CFR 0.130(a)(6)(vi). ATF promulgated its AECA regulations at 27 CFR part 447. ATF's AECA regulations include the United States Munitions Import List (“USMIL”) at 27 CFR 447.21. The USMIL enumerates AECA defense articles and defense services that are controlled by the Attorney General for permanent import purposes pursuant to the AECA, 22 U.S.C. 2778, and Executive Order 13637. While the defense articles and services on the USML under ITAR for export and temporary import and the defense articles and services on the USMIL for permanent import purposes are separate lists, there is some overlap between items listed on the USML and USMIL.

In 2009, the Export Control Reform initiative (“ECR”) was launched to conduct a comprehensive review of the U.S. export control system.^[3] As part of ECR regulatory revisions to update the U.S. export control system, the Department of State revised, for export and temporary import control purposes, the ITAR listing of some defense articles and services on the USML, with the effect that those defense articles and services became subject to the Department of Commerce's Commerce Control List (“CCL”) in the Export Administration Regulations (“EAR”), 15 CFR parts 730-774.^[4] This revision was based on the Department of State's determination that those defense articles and services no longer warrant export and temporary import control under the ITAR. As a result of these ECR regulatory changes, which became effective in March 2020,^[5] the Department of State and the Department of Commerce now have divided jurisdiction over export and temporary import controls for items that are also USMIL defense articles controlled by ATF for permanent import purposes. Specifically, the Department of State now controls for export and temporary import purposes those AECA defense articles also appearing on the USMIL that are subject to their export and temporary import jurisdiction under the ITAR, and the Department of Commerce now controls for export and temporary import purposes those AECA defense articles also appearing on the USMIL that are subject to their export and temporary import jurisdiction under the EAR.

ATF is therefore amending ATF regulations in this direct final rule to add a reference to the Department of Commerce, as appropriate, in those regulatory provisions that currently refer only to the Department of State.

II. Direct Final Rule

This direct final rule updates ATF's regulatory provisions by adding references to the Department of Commerce in 27 CFR part 447 (regulations promulgated under the AECA) and 27 CFR part 479 (regulations promulgated under the NFA) to conform to the Department of Commerce's control over certain items as a result of the ECR. More specifically, this direct final rule adds references to the Department of Commerce in the applicable sections in parts 447 and 479 to refer to those transactions that implicate the Department of Commerce's export and temporary import jurisdiction.

A. 27 CFR Part 447, Importing Arms, Ammunition, and Defense Articles

This direct final rule amends the articles-in-transit provision at 27 CFR 447.46 to add a reference to the Department of Commerce and its EAR at 15 CFR 758.10. Articles subject to 27 CFR part 447 import permit procedures that are entering the United States only temporarily pending removal, and articles temporarily taken out of the United States for subsequent return to the United States, are not considered imported or exported for part 447 purposes. Those temporary import and temporary export transactions are now subject to in transit or temporary export procedures of either the Department of State or the Department of Commerce. In addition, this rule makes a minor plain writing edit to remove the words “shall be” and “will be,” replacing the first with the word “are.”

This direct final rule also amends the exemption provisions at § 447.53(a)(3) and (b) to add references to the Department of Commerce after existing ( printed page 24354) references to the Department of State. Section 447.53(a)(3) currently states that part 447 provisions do not apply to importing articles (other than firearms as defined in 18 U.S.C. 921(a)(3)) manufactured in foreign countries for persons in the United States that are subject to Department of State approval. ATF is adding “or Department of Commerce” after “Department of State” to conform to the regulatory changes made through the ECR such that the exemption applies to articles subject to either department's approval. The provision at 27 CFR 447.53(b) currently states that any person seeking to import USMIL defense articles exempt under § 447.53(a) may obtain release of such articles from Customs custody by submitting, to the customs officer with authority to release, a statement claiming the exemption accompanied by satisfactory proof of eligibility. The proof may be in the form of a letter from the Department of Defense or State, as the case may be, confirming the person has met the exemption conditions. This direct final rule replaces “Department of Defense or State” with “Departments of Defense, State, or Commerce” in § 447.52(b).

Additionally, this direct final rule makes technical amendments to § 447.53(a)(1)-(3) to change the word “importation” to “importing” where it appears in each paragraph, and to § 447.53(a)(3) to add a missing punctuation mark, specifically to close the parenthetical phrase that ends after the citation “18 U.S.C. 921(a)(3),” and to change the term “Customs” to the term “Customs and Border Protection” and its subsequent abbreviation, to conform with that agency's preference.

B. 27 CFR Part 479, Machine Guns, Destructive Devices, and Certain Other Firearms

This direct final rule also amends the requirements at § 479.122(b), on exporting firearms caliber .22 or larger, by adding a conforming reference to the Department of Commerce—“other authorization from” in addition to the license requirement—due to Department of Commerce practices. In addition, this rule amends the requirements (1) by restructuring the last sentence to clarify up front that the person must obtain the license or authorization prior to exporting, rather than mentioning that at the end as the existing regulation does, and (2) by providing the public updated contact information for the Department of State and for the Department of Commerce regarding export authorizations.

Finally,^[6] the direct final rule adds to § 479.122(b) a new last sentence to simply remind exporters of an existing obligation, which is that they should abide by the terms and conditions of the applicable exemption or license exemption prior to exporting firearms caliber .22 or larger. This sentence reads, “Any such person should also comply with the terms and conditions of an applicable Department of State exemption or Department of Commerce license exception prior to exporting such firearms.” As described above, these changes are necessary to bring ATF's export control regulations into conformity with changes made in March 2020 as a result of the ECR. Those changes included a split of Department of State authority over export and temporary import controls between the Department of State and the Department of Commerce, which now both control export and temporary import controls for items that are USMIL defense articles that are also controlled by ATF for permanent import purposes.

III. Statutory and Executive Order Review

A. Administrative Procedure Act

Under 5 U.S.C. 553(b)(B) of the Administrative Procedure Act (“APA”), an agency may forgo notice and comment when the agency for good cause finds such procedures impracticable, unnecessary, or contrary to the public interest. Agencies may dispense with the APA's notice-and-comment requirements as unnecessary in situations in which the rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public. Util. Solid Waste Activities Grp. v. E.P.A., 236 F.3d 749, 755 (D.C. Cir. 2001). This formulation is consistent with the explanation of the “unnecessary” prong of the good cause exemption that the Attorney General issued contemporaneously to the APA. See Dep't of Justice, Attorney General's Manual on the Administrative Procedure Act 31 (1947) (explaining that “unnecessary” refers to a “minor rule or amendment in which the public is not particularly interested”).

This rule makes minor technical edits in the applicable sections in 27 CFR parts 447 and 479 to conform ATF's regulations with regulatory changes already implemented by the Departments of State and Commerce to divide their agency roles with regard to controlled arms items. The rule achieves this primarily by adding references to the Department of Commerce and its authorization for exports, plus a minor technical edit to restructure a sentence so it is clearer that persons must submit applications and comply with the terms of any exception they have before exporting.

ATF does not anticipate controversy or significant comments on these changes because the public and industry are well informed of the export control reform changes that were initiated several years ago and became effective in 2020 as discussed in section I of this preamble. The rule simply updates the regulation to reflect that import and export controls are now divided between the Departments of State and Commerce, as opposed to solely the Department of State. However, ATF is nonetheless providing a full opportunity for notice and comment. Prior to the effective date of this rule, we will consider any significant adverse comments we receive and withdraw the rule, if necessary, to address them. Thus, ATF finds, for good cause, that it is unnecessary to first publish a notice of proposed rulemaking for this rule.

In Recommendation 95-4, the Administrative Conference of the United States (“ACUS”) endorsed direct final rulemaking as an appropriate procedure to expedite promulgation of rules that are not controversial and that are not expected to generate significant adverse comment.^[7] The direct final rule process allows an agency to issue a rule that it believes to be noncontroversial “without having to go through the review process twice . . . while at the same time offering the public the opportunity to challenge the agency's view that the rule is noncontroversial.” ^[8] ACUS recommended that agencies use the direct final rule process when they act under the “unnecessary” prong of the good cause exemption in 5 U.S.C. 553(b)(B). Consistent with this recommendation, ATF is making the changes to 27 CFR 447.11, 447.46, 447.53, 479.114, and 479.122 through a direct final rule because this rule makes noncontroversial changes, and ATF does not expect to receive any significant adverse comments.

Unless we receive a significant adverse comment that warrants revising the rule by June 5, 2026, this rule will become effective on July 6, 2026. If any timely significant adverse comments are ( printed page 24355) received, ATF will publish a notice in the Federal Register withdrawing this direct final rule before its effective date. See section IV.A of this preamble on “Comments sought” for a description of what is considered a significant adverse comment.

B. 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 direct final rule adds conforming references to the Department of Commerce in the ATF regulations at 27 CFR parts 447 and 479 as appropriate and relevant and a minor technical edit to restructure a sentence so it is clearer that applications must be submitted before exporting.

The Office of Management and Budget (“OMB”) has determined that this rule is not a “significant regulatory action” under Executive Order 12866. Therefore, it did not review this rule. There are no changes in ATF standards or compliance requirements; therefore, ATF anticipates no costs or savings for this rule.

C. 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 direct final rule is not an Executive Order 14192 regulatory action because it is not a significant regulatory action as defined by Executive Order 12866 and it does not impose total costs greater than zero.

D. 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 rule does not create a criminal regulatory offense and is thus exempt from Executive Order 14294 requirements.

E. Executive Order 13132

This 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 (Federalism), the Director has determined that this regulation does 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.

F. Executive Order 12988

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

G. 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 rule subject to notice-and-comment rulemaking requirements unless the agency head certifies, including a statement of the factual basis, that the rule will not have a significant economic impact on a substantial number of small entities. 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.

This rule simply adds references to the Department of Commerce in 27 CFR part 447 and part 479 to reflect the Department of Commerce's control over certain items as a result of the ECR and to refer to those transactions that implicate the Department of Commerce's export and temporary import jurisdiction. It also restructures a sentence to make it more understandable in plain language of an existing obligation that the public already complies with. The Director therefore certifies that this rule will not have a significant economic impact on a substantial number of small entities as it imposes no additional costs.

H. Unfunded Mandates Reform Act of 1995

This direct final rule does not include a federal mandate that will 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 (as adjusted for inflation), and it will not significantly or uniquely affect small governments.

Therefore, the ATF has determined that no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

I. 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 a rule creates or any impacts it has on existing information collections. An information collection includes any reporting, record-keeping, monitoring, posting, labeling, or other similar actions an agency requires of the public. See5 CFR 1320.3(c). This direct final rule does not create any new information collection requirements or impact any existing ones covered by the PRA.

J. Congressional Review Act

This 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 this direct final rule from all interested persons. Pertinent to this direct final rule, a significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including by identifying challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is significant in the following circumstances:

(1) The comment opposes ATF's assessment regarding the non-controversial nature of the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response may be required when:

(a) The comment causes ATF to reconsider its position or conduct additional analysis; ( printed page 24356)

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by ATF.

(2) The comment proposes a salient change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition; or

(3) The comment causes ATF to make a change (other than editorial or administrative changes) to the rule.

All comments must reference this document's RIN 1140-AA66 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-AA66. 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.

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 rule and any public comments received in response to it are available through the federal e-rulemaking portal at https://www.regulations.gov (search for RIN 1140-AA66).

For the reasons discussed in the preamble, ATF amends 27 CFR parts 447 and 479 as follows:

91 FR 24352