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You Can't Get There from Here: Obama Administration Shrugs Off Woes of International Travelers

Friday, April 17, 2015

You Can't Get There from Here: Obama Administration Shrugs Off Woes of International Travelers

For weeks, we have been reporting on how a long-dormant State Department rule change is suddenly being enforced to the detriment of Americans trying to travel lawfully overseas with firearms.

In brief, exports of rifles and handguns generally require a license from the State Department. Nevertheless, an exemption has long applied for U.S. persons who temporarily export up to three firearms and 1,000 rounds of ammunition. This allows hunters, sportsmen, and industry employees to travel overseas with firearms for legal purposes, subject to the laws of the destination countries.

Previously, travelers simply visited a U.S. Customs office at some point before departure, where they would provide information about their firearms on a form (known as the 4457) that was signed or stamped by a Customs official.  Upon returning to the U.S., the traveler could use the form to verify prior possession of the firearms in the U.S.

Recently, Customs and Border Protection (CBP), which has primary responsibility for enforcing the relevant regulations, announced that licensing exemptions could only be claimed by filing a declaration in the Automated Export System (AES), a database maintained by the Census Bureau. That database, however, was designed for use by commercial entities and, among other things, requires an Employer Identification Number (EIN), which is normally applicable to businesses.  Nevertheless, the State Department, which issued the underlying regulation, claims private individuals can also register with the Internal Revenue Service (IRS) as "sole proprietors" for the purposes of obtaining the EIN necessary to use AES. According to the IRS, however, EINs are issued for business purposes, and applicants for one must state a business reason for obtaining it.

This puts international travelers in the untenable position of having to make false declarations to the IRS in order to comply with State Department regulations and avoid enforcement actions by CBP.

This puts international travelers in the untenable position of having to make false declarations to the IRS in order to comply with State Department regulations and avoid enforcement actions by CBP. The AES online interface that travelers are supposed to use, meanwhile, is very complicated and involves a 34-page user guide, a 30-question quiz, and various special codes that must be used. It was neither designed for nor is easily navigated by private travelers.

Your NRA has been actively involved in trying to resolve these contradictions and getting to the bottom of what is really required of international travelers transporting firearms, given that we've received widely varying reports of what travelers are actually experiencing at airports and CBP offices. Yesterday, NRA personnel, along with representatives of the Congressional Sportsmen’s Foundation, National Shooting Sports Foundation, and Safari Club International, met with officials from CBP, the Census Bureau, Department of Homeland Security (DHS), and Immigration and Customs Enforcement (ICE). With that many bureaucrats in one room, we were hoping that someone could provide straight answers and reassurance for international travelers with firearms who want nothing more than to comply with the law. Unfortunately, that was not the case.

Yet when confronted directly with whether the fact sheet was the final word on how private travelers should comply with the new policies, a high-ranking DHS official refused to commit and said it would "depend on the facts."Participants at the meeting had received a document entitled, "Fact Sheet: International Travel with Firearms on Commercial Airliners Departing the United States." To date, this "fact" sheet does not appear to have been posted online. It largely reiterates guidance that ICE and CBP continue to promote on their websites, although the online information specifically states that the requirements apply to all travel outside the U.S., including by motor vehicle and foot, not just via commercial airlines. The fact sheet reinforces the necessity of travelers declaring their exemptions for personally transported firearms and ammunition through AES and then presenting the resulting "internal transaction number" (ITN) and firearms for inspection to a CBP officer at the point of departure. "Yet when confronted directly with whether the fact sheet was the final word on how private travelers should comply with the new policies, a high-ranking DHS official refused to commit and said it would "depend on the facts."

Somewhat more helpfully, a CBP official assured those at the meeting that CBP is committed to ensuring that travelers who arrive at their points of departure early (for example, two or three hours for international flights) and demonstrate good faith willingness to comply will be accommodated. Yet he also said that prior declaration by the traveler through AES is the official procedure and should be considered the norm. When challenged about the fact that travelers were actually experiencing different procedures at different points of departure, he admitted that not all of the some 25,000 relevant employees were operating under the same understanding and some still had to be educated on the new policies.

The officials present were also challenged on the prospect of whether registering for an EIN with IRS could lead to adverse scrutiny of tax filings or imports of trophies or could raise questions about why “business” people were not filing business tax returns or complying with other commercial regulations.  Various officials insisted they had been in contact with IRS on the matter, but none produced any written guidance or rulings from the agency to resolve these concerns, and no one was present with the authority to speak on behalf of IRS. At least one of the officials acknowledged her agency “could not guarantee” that unforeseen problems or misunderstandings might not arise over travelers obtaining EINs merely to make AES declarations. Assurances were made, however, that IRS was being cooperative.
Frankly, we're not impressed or convinced. As one attendee said, even if high-ranking agency officials pledge to cooperate with one another in conversations or memos, that doesn't mean the message will filter down to the rank-and-file enforcement personnel making decisions in the field.
Frankly, we're not impressed or convinced. As one attendee said, even if high-ranking agency officials pledge to cooperate with one another in conversations or memos, that doesn’t mean the message will filter down to the rank-and-file enforcement personnel making decisions in the field. Indeed, even within the single agency of CBP, many field personnel seem wholly unaware of the new polices, as evidenced by recent reports from travelers. The officials were also very dismissive of concerns about travelers effectively having to register their firearms in a government database in order to travel with them. No promises were made that the information entered would be purged once travelers returned from their trips.

This leaves NRA in a difficult position when advising members on what to do. All we can say for sure is:

  • Officially, travelers taking personal handguns or rifles abroad for personal or business purposes must register their intentions and claim any applicable exemptions through AES. Travelers then must take the resulting ITN and declared firearms to a CBP officer at the point of departure for inspection. The Census Bureau has a help line (1-800-549-0595) for travelers navigating AES, and real people are available to assist. We called the line and spoke to a representative promptly. He was courteous and was familiar with problems travelers are facing, although he could not resolve the problem with private travelers having to obtain an EIN through IRS to use the system. He also acknowledged that not all travelers will have ready access to a CBP office at their point of departure.
     
  • CBP provided assurances that travelers who are not aware of the new requirements and who try to use the old procedures will be accommodated, provided they arrive at the CBP office well before their departure. The nature of the “accommodations” was not specified in any detail, but we can say we’ve yet to hear of a traveler being refused departure with his or her firearms at this point.

Your NRA continues to use every available means to address these ongoing issues and to ensure that international travel may continue unimpeded. We will continue to report on any new information.

In the meantime, we urge you to contact your representative and senators and tell them that the situation facing international travelers with firearms is unacceptable and should revert to the prior paper-based procedures until a reasonable, workable, and user-friendly alternative can be instituted.

You can contact your U.S. Representative or Senators by using our "Write Your Lawmakers" tool at www.NRAILA.org, or by phone at (202) 224-3121.

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.