Removing Triplicate Filing Requirement for Importing Plastic Explosives

Removing Triplicate Filing Requirement for Importing Plastic Explosives

SUPPLEMENTARY INFORMATION:

I. Background

Title XI of the Organized Crime Control Act of 1970 ("OCCA"), Public Law 91-452, 84 Stat. 922 (1970), added chapter 40 (Importation, Manufacture, Distribution, and Storage of Explosive Materials) to 18 U.S.C. ⁽¹⁾ One of the stated purposes for title XI was to reduce the "hazard to persons and property arising from misuse and unsafe or insecure storage of explosive materials." Public Law 91-452, sec. 1101, 84 Stat. at 952. The Attorney General is responsible for implementing title XI. See 18 U.S.C. 847. The Attorney General has delegated that responsibility to the Director of ATF ("Director"), subject to the direction of the Attorney General and the Deputy Attorney General. ² See 28 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). Regulations in 27 CFR part 555 implement title XI.

Persons importing explosive materials into the United States must abide by the general provisions set forth in 27 CFR 555.108. Importers of plastic explosives into the United States are subject to the additional requirements at § 555.183. Id. at § 555.108(d). Under § 555.183, importers of plastic explosives that file an ATF Form 5330.3A, Application/Permit to Import Firearms, Ammunition, and Defense Articles ("Form 6, part I"), ⁽³⁾ must also attach a written statement, prepared in triplicate, declaring, under penalty of perjury, that the plastic explosive they intend to import contains a detection agent as required by § 555.180(b) or that the plastic explosive is a "small amount" to be used for research, training, or testing purposes and is exempt from § 555.182's detection agent requirements.

II. Final Rule

ATF is removing from its regulations at § 555.183 the requirement that importers of plastic explosives attach three copies of their written statement to their Form 6, part I applications. ATF used to require that Form 6, part I applications be submitted in triplicate, therefore making three copies of the additional statement in § 555.183 necessary. As ATF has modernized its processing systems, ATF no longer requires this form to be submitted in triplicate, nor does ATF use the extra copies of the statement when processing the Form 6, part I applications. The triplicate filing requirement has therefore become unnecessary for ATF. While ATF has not received Form 6, part I applications to import plastic explosives in the past three years, removing the requirement to file in triplicate reduces a burden on importers should they import plastic explosives in future. ATF is not removing the requirement to submit the written statement; it is simply removing the requirement to submit the statement in triplicate.

Accordingly, the final rule removes from § 555.183 the phrase, "prepared in triplicate," and an obsolete reference to "on or after April 24, 1997," in the first paragraph. The final rule also updates the section heading by removing the obsolete reference to "on or after April 24, 1997" and modernizes it to read "Importing plastic explosives."

III. Statutory and Executive Order Review

A. Administrative Procedure Act

Generally, the Administrative Procedure Act ("APA") requires that agencies publish a notice of a proposed rulemaking and give interested persons an opportunity to participate in the rulemaking by submitting comments on it. See 5 U.S.C. 553(c). However, the APA provides limited exceptions to its notice-and-comment requirements. One such exception is for "rules of agency organization, procedure, or practice." 5 U.S.C. 553(b)(A); see also Am. Fed'n of Lab. & Cong. of Indus. Orgs. (AFLCIO) v. Nat'l Lab. Rels. Bd., 57 F.4th 1023, 1034 (D.C. Cir. 2023) ("[A]s the text of the APA makes clear, not all rules that might be categorized as procedural are exempted; the limited carveout is intended for `internal house-keeping measures organizing agency activities.' " (citing Am. Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1045 (D.C. Cir. 1987))). The courts have described this exception as covering "agency actions that do not themselves alter the rights or interests of parties, although [they] may alter the manner in which the parties present themselves or their viewpoints to the agency." Id. (citing James V. Hurson Assoc., Inc. v. Glickman, 229 F.3d 277, 280 (D.C. Cir. 2000) (internal quotation marks omitted)). "[I]t is always within the discretion of . . . an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business." Am. Farm Lines v. Black Ball Freight Serv. 397 U.S. 532, 539 (1970) (citations omitted).

By removing the requirement that the attestation on plastic explosives be submitted in triplicate with the Form 6, part I, ATF is neither imposing a substantive requirement on industry or the public, nor relieving industry or the public from any substantive requirements. ATF no longer needs additional copies of the attestation because ATF does not need the Form 6, part I to be in triplicate. The import application is available on ATF's eForms platform, and a majority of importers submit their applications electronically. When submitting electronically, users complete the Form 6, part I application once. While ATF still accepts paper applications, ATF also no longer needs the Form 6, part I in triplicate and, at the time of this rule, is amending the form's instructions to reflect this. Overall, removing the requirement to file the attestation in triplicate is a procedural housekeeping measure that decreases the administrative burden for both industry and ATF without effectuating any substantive change or adversely impacting the broader public.

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 final rule amends 27 CFR 555.183 to remove the requirement that a written statement be submitted in triplicate as it is unnecessary to process the Form 6, part I application to import plastic explosive materials. The Office of Management and Budget ("OMB") has determined that this rule is not a "significant regulatory action" under Executive Order 12866. Although ATF finds that this rule can forgo notice-and-comment because it a procedural, housekeeping rule under 5 U.S.C 553(b)(A), ATF nonetheless includes a brief benefits-costs discussion to illustrate the benefits and deregulatory nature of removing the requirement to submit in triplicate when licensees import plastic explosives.

1. Benefits

The benefits ATF expects to result from this rule would be primarily qualitative in nature and de minimis. Form 6, part I serves as the application form for importing plastic explosives, but also for other items that contain explosive materials, such as propellant for sporting ammunition, propellant for nonsporting ammunition (rounds over 50 caliber, tracer, or incendiary), and destructive devices (for example bombs, mines, grenades, ammunition rounds larger than 23mm, if they contain more than 4 oz of explosive material). Based on ATF data, there have been 55 Form 6 applications submitted over the past three years to import items that contain explosive materials, with an annual average of approximately 18 per year.

Removing the requirement that importers of plastic explosives attach three copies of their written statement with their Form 6, part I application would save importers the marginal burden of printing and signing three copies of the required forms. Where these triplicate forms were once collected on carbon copied physical forms, any additional burden was nonexistent. As the carbon copies were phased out and replaced by physical or electronic forms, a marginal burden emerged where the applicant was required to produce redundant copies of the application. However, the entire form never had to be completed three times. An electronic form could be printed three times instead of once, or a physical form could be photocopied and signed instead of completed again. While no import applications have been submitted for plastic explosives in the past three years, this rule would eliminate any such de minimis burden in the event of a future import of plastic explosives. For the above reasons, ATF expects benefits to be primarily qualitative in nature and quantitatively de minimis.

2. Costs

ATF does not expect any compliance costs to result from the rule, as it is a deregulatory action that would result in marginal benefits and transfers.

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 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. This rule qualifies as an Executive Order 14192 deregulatory action as it removes a requirement for applicants to submit three copies of an attestation with their Form 6, part I application to import plastic explosives.

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

E. Executive Order 13132

This final rule will 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 rule 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 final rule meets the applicable standards set forth in sections 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, ATF has considered whether this final rule will have a significant economic impact on a substantial number of small entities. The term "small entities" comprises 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.

In accordance with sections 603 and 604 of the RFA, a Regulatory Flexibility Analysis is not required for this final rule because ATF was not required to publish a general notice of proposed rulemaking for this matter. However, there are no additional costs to the public as it removes an unnecessary regulatory requirement; therefore, the Director certifies, after consideration, that this final rule will not have a significant economic impact on a substantial number of small entities.

H. Unfunded Mandates Reform Act of 1995

This final 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 will 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.

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 ten or more persons within any 12-month period. See 5 CFR 1320.3(c). This rule does not create any new information collection requirements. There is no existing information collection associated with this triplicate filing requirement because it has not involved ten or more respondents within a 12-month period. 44 U.S.C. 3502(3)(A)(i); 5 CFR 1320.3(c)(4).

J. Congressional Review Act

Pursuant to the Congressional Review Act, 5 U.S.C. 801 et seq., ATF has determined that this rule does not meet the criteria in 5 U.S.C. 804(2) to constitute a major rule. This rule is not a major rule because it would 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.

For the reasons discussed in the preamble, ATF amends 27 CFR part 555 as follows:

PART 555-COMMERCE IN EXPLOSIVES

⁽¹⁾  Some 18 U.S.C. chapter 40 provisions still refer to the "Secretary of the Treasury." However, the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, transferred the functions of ATF from the Department of the Treasury to the Department of Justice, under the general authority of the Attorney General. 26 U.S.C. 7801(a)(2); 28 U.S.C. 599A(c)(1). Thus, for ease of reference, this final rule refers to the Attorney General where relevant.

⁽²⁾  In Attorney General Order Number 6353-2025, the Attorney General delegated authority to the Director to issue regulations pertaining to matters within ATF's jurisdiction, including under OCCA, the National Firearms Act, and the Gun Control Act. ATF's jurisdiction also includes those portions of sec. 38 of the Arms Export Control Act pertaining to permanently importing defense articles and services and the Contraband Cigarette Trafficking Act.

⁽³⁾  A Form 6, part I application to import is generally required for articles on the United States Munitions Imports List ("USMIL"). See 27 CFR 447.41. If importing plastic explosives that fall under USMIL, importers would be required to file a Form 6, part I application and submit the additional information as required by § 555.183. 27 CFR 447.42(a)-(b).