ATF

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Bureau of Alcohol, Tobacco, Firearms and Explosives

Department of Treasury
Bureau of Alcohol, Tobacco, and Firearms

TD ATF-389
Residency Requirements for Persons Acquiring Firearms (97R-687P)

Temporary Rule and Proposed Rule



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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).

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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 The temporary rule will remain in effect until superseded 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.

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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

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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

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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