[Federal Register Volume 62, Number 76 (Monday, April 21, 1997)]
[Rules and Regulations]
[Pages 19442-19445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10242]
[[Page 19441]]
_______________________________________________________________________
Part V
Department of Treasury
_______________________________________________________________________
Bureau of Alcohol, Tobacco, and Firearms
_______________________________________________________________________
27 CFR Part 178
Residency Requirements for Persons Acquiring Firearms (97R-687P);
Temporary Rule and Proposed Rule
Federal Register / Vol. 62, No. 76 / Monday, April 21, 1997 / Rules
and Regulations
[[Page 19442]]
DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
27 CFR Part 178
[T.D. ATF-389]
RIN 1512-AB66
Residency Requirements for Persons Acquiring Firearms (97R-687P)
AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Department of
the Treasury.
ACTION: Temporary rule (Treasury decision).
-----------------------------------------------------------------------
SUMMARY: This temporary rule amends the regulations to provide for a
firearms purchaser's affirmative statement of his or her State of
residence on ATF Form 4473 (Firearms Transaction Record) and ATF Form
5300.35 (Statement of Intent to Obtain a Handgun) in acquiring a
firearm from a Federal firearms licensee. The temporary rule also
amends the regulations to require that aliens purchasing a firearm
provide proof of residency through the use of substantiating
documentation, such as utility bills or a lease agreement. In addition,
the regulations are being amended to require that licensees examine a
photo identification document from aliens purchasing firearms. Finally,
the definition of ``State of residence'' is being amended to eliminate
the language allowing aliens to establish residency by obtaining a
letter from their embassy or consulate. The definition is also being
amended to define more clearly ``State of residence.'' These
regulations implement President Clinton's March 5, 1997, announcement
of firearms initiatives intended to protect the American public from
gun violence. The temporary rule will remain in effect until superseded
by final regulations.
In the same separate part of this Federal Register, ATF is also
issuing a notice of proposed rulemaking inviting comments on the
temporary rule for a 90-day period following the publication date of
this temporary rule.
DATES: The temporary regulations are effective April 21, 1997. Comments
are due July 21, 1997.
ADDRESSES: Send written comments to: Chief, Regulations Branch; Bureau
of Alcohol, Tobacco and Firearms; Washington, DC 20091-0221.
FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Regulations
Branch, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts
Avenue, NW., Washington, DC 20226 (202-927-8230).
SUPPLEMENTARY INFORMATION:
Background
On February 23, 1997, Ali Hassan Abu Kamal, a nonresident alien
legally in the United States, opened fire on a group of tourists at the
Empire State Building in New York City. Abu Kamal killed one individual
and wounded six others before turning the firearm on himself and
committing suicide. Abu Kamal entered the United States legally
approximately 30 days prior to the incident. He acquired an
identification card issued by the State of Florida that appeared to
identify him as a resident of Florida. The address listed on the card
turned out to be the address of a Florida hotel. Abu Kamal used the
identification card to purchase a handgun from a licensed dealer in
Florida which he transported to New York and used in the shooting
incident.
Abu Kamal clearly was not a ``resident'' as that term is defined in
the regulations in 27 CFR 178.11, since he had not resided in Florida
for 90 days before the purchase of the handgun. However, the Firearms
Transaction Record, ATF Form 4473, does not require an affirmative
statement of a purchaser's State of residence or information
documenting an alien's residence in the State of purchase for a period
of 90 days.
The shooting by Abu Kamal is only one of a growing number of
incidents involving the illegal acquisition of firearms by aliens. ATF
has investigated a number of crimes committed by juveniles and gang
members with firearms that are traced back to alien purchasers. ATF
investigations also reveal that aliens frequently purchase firearms in
the United States that are illegally exported.
In response to the Empire State Building tragedy, on March 5, 1997,
the President directed Treasury Secretary Robert E. Rubin to restrict
gun access by foreign visitors and to tighten up the residency
requirements of the Federal firearms laws. Specifically, the President
directed the Secretary to amend the forms completed by firearms
purchasers to require them to affirmatively identify their State of
residence. In the case of aliens legally in the United States, they
would generally have to be a resident of the State where the sale takes
place for the 90-day period preceding the sale. The President also
directed that the regulations be amended to require that aliens
purchasing firearms provide licensed gun dealers with proof of
residency, such as utility bills, in addition to photo identification.
Section 922(b)(3) of the Gun Control Act of 1968 (GCA) makes it
unlawful for a Federal firearms licensee (FFL) to sell or deliver any
firearm to any person who the licensee knows or has reasonable cause to
believe does not reside in the State in which the licensee's place of
business is located. An exception is provided for over-the-counter
transfers of a rifle or shotgun to out-of-State residents if the
transfer fully complies with the State laws of the buyer and seller.
Regulations which implement section 922(b)(3) are contained in 27 CFR
178.99(a).
Prior to making a transfer of a firearm to a nonlicensed
individual, the regulations (27 CFR 178.124(c)) require the licensee to
obtain a Form 4473 (Firearms Transaction Record) from the transferee
(buyer) showing certain information, including the name, address, date
and place of birth. Paragraph (c)(1) of this section provides that
before transferring a firearm over-the-counter, the licensee must
obtain from the transferee documentation establishing the purchaser's
identity. However, existing regulations do not require that the
licensee obtain from the transferee documentation establishing the
purchaser's State of residence.
The term ``State of residence'' is defined in 27 CFR 178.11 as
follows:
The State in which an individual regularly resides, or maintains
a home, or if such person is on active duty as a member of the
United States Armed Forces, the State in which the person's
permanent duty station is located: Provided, That an alien who is
legally in the United States shall be considered to be a resident of
the State in which (a) the alien is residing or has so resided for a
period of at least 90 days prior to the date of sale or delivery of
a firearm, or (b) the alien's embassy or consulate is located if the
principal officer of such embassy or consulate issues a written
statement to such alien authorizing the alien to acquire a firearm.
Temporary stay in a State does not make the State of temporary stay
the State of residence.
The Brady law, 18 U.S.C. Sec. 922(s), generally imposes a waiting
period of 5 business days before a licensee may sell, deliver, or
transfer a handgun to a nonlicensed individual. Regulations
implementing the Brady law require that, in States subject to the 5-day
waiting period, licensees obtain a statement of the transferee's intent
to obtain a handgun (ATF Form 5300.35) containing, among other
information, the transferee's name, address, and date of birth
appearing on a valid photo identification.
[[Page 19443]]
Temporary Regulations
In general, this temporary rule amends the regulations to require a
firearms purchaser's affirmative statement of his or her State of
residence on ATF Form 4473 and to request this information on ATF Form
5300.35 when acquiring a firearm from a Federal firearms licensee. In
addition, in the case of an alien who is legally in the United States,
the temporary rule will require the purchaser to provide the licensee
with proof of residency through the use of substantiating
documentation, such as utility bills or a lease agreement, which show
that the individual has resided in the State continuously for at least
90 days prior to the transfer of the firearm. The regulations are also
being amended to require that licensees obtain a photo identification
document from aliens purchasing firearms. Photo identification is
already required for handgun purchases by nonlicensees, including
aliens (see 18 U.S.C. Sec. 922(s)(1)) and 27 CFR 178.102(a)). The
regulation extends the photo identification requirement to ALL firearms
purchases by aliens.
Specifically, ATF is amending 27 CFR 178.124(c) to provide that,
prior to making an over-the-counter transfer of a firearm, the licensee
must obtain from the transferee a completed ATF Form 4473 (Firearms
Transaction Record) which shows certain information, including an
affirmative statement as to the transferee's State of residence. In
addition, before transferring a firearm other than a rifle or shotgun,
the licensee will, in the case of a nonlicensee who is an alien legally
in the United States, obtain from the transferee documentation
establishing that the transferee is a resident of the State in which
the licensee's business premises is located. The licensee will also
note on the form the documentation used. Examples of acceptable
documentation include utility bills or a lease agreement which show
that the purchaser has resided in the State continuously for at least
90 days prior to the transfer of the firearm.
Section 178.124(d), relating to an over-the-counter transfer of a
shotgun or rifle, is being amended to require alien purchasers to
present to the licensee documentation establishing that the transferee
is a resident of any State and has resided in such State continuously
for at least 90 days prior to the transfer of the firearm. Examples of
acceptable documentation include utility bills or a lease agreement.
The regulations also require that licensees obtain a government
issued photo identification document, as defined in Sec. 178.11, from
the alien purchaser. The licensee will note on the Form 4473 the
documentation used.
Because the law permits the loan or rental of a firearm for
temporary use for lawful sporting purposes to a nonlicensee who is not
a resident of the State in which the licensee's business premises is
located, 27 CFR 178.124(e) is being amended to provide that the
residency requirements in paragraph (c)(1)(ii) do not apply to such
transfers.
Section 178.124(f) specifies procedures for licensees transferring
firearms to nonlicensees in non-over-the-counter transactions (e.g.,
mail order sales). This regulation is being amended to specifically
make reference to the residency requirements on ATF Form 4473 for
persons acquiring firearms.
With respect to the transfer of firearms curios or relics by
licensed collectors to nonlicensees, a Form 4473 is not required.
However, licensed collectors are required to maintain records of
acquisition and disposition of firearms and to obtain identification
from unlicensed transferees. Section 178.125 is being amended to
provide that the licensee will, in the case of a transferee who is an
alien legally in the United States, obtain from the transferee
documentation establishing that the transferee is a resident of the
State in which the licensee's business premises is located if the
firearm curio or relic is other than a shotgun or rifle, or is a
resident of any State and has resided in such State continuously for at
least 90 days prior to the transfer of the firearm if the firearm curio
or relic is a shotgun or rifle. This section is also being amended to
require that licensed collectors obtain a government issued photo
identification document from aliens purchasing firearms. The
regulations will require the licensee to note on the Acquisition and
Disposition Record the type of documentation and identification used.
With respect to the residency requirement, examples of acceptable
documentation include utility bills or a lease agreement which show
that the transferee has resided in the State continuously for at least
90 days prior to the transfer of the firearm curio or relic.
ATF is also amending Sec. 178.132(a)(2) with respect to the
Statement of Intent to Obtain a Handgun (ATF Form 5300.35) to request
that purchasers affirmatively state their State of residence. In the
case of aliens who are legally in the United States, this would help
identify those who do not meet the 90-day residency requirement. This
information would be requested on the form because 18 U.S.C.
Sec. 922(s)(3) limits the information that can be required to be
disclosed on the form.
Finally, the definition of ``State of residence'' in Sec. 178.11 is
being amended to eliminate the language allowing aliens to establish
residency by obtaining a letter from their embassy or consulate. This
amendment is necessary because such a letter could be obtained by a
person having no actual residence in a State or intent to reside in the
United States. Thus, the only way an alien can be a ``resident'' is by
residing in a State for a period of at least 90 days. In addition, the
definition and the examples following the definition are being amended
to define more clearly State of residency.
Executive Order 12866
It has been determined that this temporary rule is not a
significant regulatory action as defined in E.O. 12866. Therefore, a
regulatory assessment is not required.
Administrative Procedure Act
In light of the recent Empire State Building tragedy, the growing
number of incidents involving the illegal acquisitions of firearms by
aliens, and the immediate need to protect the American public from gun
violence, it is found to be impracticable and contrary to the public
interest to issue this Treasury decision with notice and public
procedure under 5 U.S.C. 553(b), or subject to the effective date
limitation in section 553(d).
Regulatory Flexibility Act
The provisions of the Regulatory Flexibility Act relating to an
initial and final regulatory flexibility analysis (5 U.S.C. 604) are
not applicable to this temporary rule because the agency was not
required to publish a notice of proposed rulemaking under 5 U.S.C. 553
or any other law. Accordingly, a regulatory flexibility analysis is not
required.
Paperwork Reduction Act
This regulation is being issued without prior notice and public
procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553).
For this reason, the collections of information contained in this
regulation have been reviewed under the requirements of the Paperwork
Reduction Act (44 U.S.C. 3507(j)) and, pending receipt and evaluation
of public comments, approved by the Office of Management and Budget
(OMB) under control numbers 1512-0129 and 1512-0130 (Sec. 178.124);
1512-0387 (Sec. 178.125); and 1512-0520 (Sec. 178.130). An agency may
not conduct
[[Page 19444]]
or sponsor, and a person is not required to respond to, a collection of
information unless it displays a valid control number assigned by the
Office of Management and Budget.
The collections of information in this regulation are in 27 CFR
178.124, 178.125, and 178.130. This information is required to ensure
that individuals purchasing firearms meet the residency requirements
mandated by law. The likely respondents are individuals.
For further information concerning the collections of information,
and where to submit comments on the collections of information, refer
to the preamble to the cross-referenced notice of proposed rulemaking
published elsewhere in this issue of the Federal Register.
Drafting Information
The author of this document is James P. Ficaretta, Regulations
Branch, Bureau of Alcohol, Tobacco and Firearms.
List of Subjects in 27 CFR Part 178
Administrative practice and procedure, Arms and ammunition,
Authority delegations, Customs duties and inspection, Exports, Imports,
Military personnel, Penalties, Reporting requirements, Research,
Seizures and forfeitures, and Transportation.
Authority and Issuance
Accordingly, 27 CFR part 178 is amended as follows:
PART 178--COMMERCE IN FIREARMS AND AMMUNITION
Paragraph 1. The authority citation for 27 CFR part 178 continues
to read as follows:
Authority: 5 U.S.C. 552(a); 18 U.S.C. 847, 921-930; 44 U.S.C.
3504(h).
Par. 2. Section 178.11 is amended by revising the definition of
``State of residence'' to read as follows:
Sec. 178.11 Meaning of terms.
* * * * *
State of residence. The State in which an individual resides. An
individual resides in a State if he or she is present in a State with
the intention of making a home in that State. If an individual is on
active duty as a member of the Armed Forces, the individual's State of
residence is the State in which his or her permanent duty station is
located. An alien who is legally in the United States shall be
considered to be a resident of a State only if the alien is residing in
the State and has resided in the State for a period of at least 90 days
prior to the date of sale or delivery of a firearm. The following are
examples that illustrate this definition:
Example 1. A maintains a home in State X. A travels to State Y
on a hunting, fishing, business, or other type of trip. A does not
become a resident of State Y by reason of such trip.
Example 2. A is a U.S. citizen and maintains a home in State X
and a home in State Y. A resides in State X except for weekends or
the summer months of the year and in State Y for the weekends or the
summer months of the year. During the time that A actually resides
in State X, A is a resident of State X, and during the time that A
actually resides in State Y, A is a resident of State Y.
Example 3. A, an alien, travels on vacation or on a business
trip to State X. Regardless of the length of time A spends in State
X, A does not have a State of residence in State X. This is because
A does not have a home in State X at which he has resided for at
least 90 days.
* * * * *
Par. 3. Section 178.124 is amended by revising the first sentence
in the introductory text of paragraph (c), by revising paragraphs
(c)(1), (d), and (e), and by revising the third sentence in paragraph
(f) to read as follows:
Sec. 178.124 Firearms transaction record.
* * * * *
(c) Prior to making an over-the-counter transfer of a firearm to a
nonlicensee who is a resident of the State in which the licensee's
business premises is located, the licensed importer, licensed
manufacturer, or licensed dealer so transferring the firearm shall
obtain a Form 4473 from the transferee showing the name, address
(including county or similar political subdivision), whether the
transferee is a citizen of the United States, State of residence, date
and place of birth, height, weight, and race of the transferee, and
certification by the transferee that the transferee is not prohibited
by the Act from transporting or shipping a firearm in interstate or
foreign commerce or receiving a firearm which has been shipped or
transported in interstate or foreign commerce or possessing a firearm
in or affecting commerce. * * *
(1)(i) Shall cause the transferee to be identified in any manner
customarily used in commercial transactions (e.g., a driver's license),
and shall note on the form the method used: Provided, That in the case
of an alien legally in the United States, shall verify the identity of
the transferee by examining an identification document (as defined in
Sec. 178.11), and shall note on the form the type of identification
used;
(ii) Shall, in the case of a transferee who is an alien legally in
the United States, cause the transferee to present documentation
establishing that the transferee is a resident of the State (as defined
in Sec. 178.11) in which the licensee's business premises is located,
and shall note on the form the documentation used. Examples of
acceptable documentation include utility bills or a lease agreement
which show that the transferee has resided in the State continuously
for at least 90 days prior to the transfer of the firearm; and
(2) * * *
(d) Prior to making an over-the-counter transfer of a shotgun or
rifle under the provisions contained in Sec. 178.96(c) to a nonlicensee
who is not a resident of the State in which the licensee's business
premises is located, the licensee so transferring the shotgun or rifle,
and such transferee, shall comply with the requirements of paragraph
(c) of this section: Provided, That in the case of a transferee who is
an alien legally in the United States, the documentation required by
paragraph (c)(1)(ii) of this section need only establish that the
transferee is a resident of any State and has resided in such State
continuously for at least 90 days prior to the transfer of the firearm.
Examples of acceptable documentation include utility bills or a lease
agreement. The licensee shall note on the form the documentation used.
(e) Prior to making a transfer of a firearm to any nonlicensee who
is not a resident of the State in which the licensee's business
premises is located, and such nonlicensee is acquiring the firearm by
loan or rental from the licensee for temporary use for lawful sporting
purposes, the licensed importer, licensed manufacturer, or licensed
dealer so furnishing the firearm, and such transferee, shall comply
with the provisions of paragraph (c) of this section, except for the
provisions of paragraph (c)(1)(ii).
(f) * * * The transferee also must date and execute the sworn
statement contained on the form showing, in case the firearm to be
transferred is a firearm other than a shotgun or rifle, the transferee
is 21 years or more of age; in case the firearm to be transferred is a
shotgun or rifle, the transferee is 18 years or more of age; whether
the transferee is a citizen of the United States; the transferee's
State of residence, and in the case of a transferee who is an alien
legally in the United States, the transferee has resided in that State
continuously for at least 90 days prior to the transfer of the firearm;
the transferee is not prohibited by the provisions of the Act from
shipping or transporting a firearm in interstate or
[[Page 19445]]
foreign commerce or receiving a firearm which has been shipped or
transported in interstate or foreign commerce or possessing a firearm
in or affecting commerce; and the transferee's receipt of the firearm
would not be in violation of any statute of the State or published
ordinance applicable to the locality in which the transferee resides. *
* *
* * * * *
Par. 4. Section 178.125(f) is amended by removing the text
following the seventh sentence and in its place adding a new phrase and
paragraphs (f)(1) through (f)(3) to read as follows:
Sec. 178.125 Record of receipt and disposition.
* * * * *
(f) Firearms receipt and disposition by licensed collectors. * * *
In addition, the licensee shall--
(1) Cause the transferee, if other than a licensee, to be
identified in any manner customarily used in commercial transactions
(e.g., a driver's license), and note on the record the method used, and
(2) In the case of a transferee who is an alien legally in the
United States and who is other than a licensee--
(i) Verify the identity of the transferee by examining an
identification document (as defined in Sec. 178.11), and
(ii) Cause the transferee to present documentation establishing
that the transferee is a resident of the State (as defined in
Sec. 178.11) in which the licensee's business premises is located if
the firearm curio or relic is other than a shotgun or rifle, and note
on the record the documentation used or is a resident of any State and
has resided in such State continuously for at least 90 days prior to
the transfer of the firearm if the firearm curio or relic is a shotgun
or rifle and shall note on the record the documentation used. Examples
of acceptable documentation include utility bills or a lease agreement
which show that the transferee has resided in the State continuously
for at least 90 days prior to the transfer of the firearm curio or
relic.
(3) The format required for the record of receipt and disposition
of firearms by collectors is as follows:
Firearms Collectors Acquisition and Disposition Record
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Description of firearm Receipt Disposition
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
For transfers to
Driver's license aliens,
Name and address Name and address Date of birth if No. or other documentation
Manufacturer and/or importer Model Serial No. Type Caliber or gauge Date or name and Date or name and nonlicensee identification used to
license No. license No. if nonlicensee establish
residency
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
Par. 5. Section 178.130(a)(2) is revised to read as follows:
Sec. 178.130 Statement of intent to obtain a handgun after February
27, 1994, and before November 30, 1998.
(a)(1) * * *
(2) In order to establish residency and to facilitate the transfer
of a handgun and enable the chief law enforcement officer to verify the
identity of the person acquiring the handgun, Form 5300.35 requests
certain additional optional information. This information includes the
social security number, height, weight, sex, alien registration number,
whether the person is a citizen of the United States, State of
residence, and place of birth of the transferee. Such information may
help ensure the lawfulness of the sale and avoid the possibility of the
transferee being misidentified as a felon or other prohibited person.
* * * * *
Signed: April 4, 1997.
John W. Magaw,
Director.
Approved: April 11, 1997.
John P. Simpson,
Deputy Assistant Secretary (Regulatory, Tariff and Trade Enforcement).
[FR Doc. 97-10242 Filed 4-18-97; 8:45 am]
BILLING CODE 4810-31-P
