Department of Treasury

Bureau of Alcohol, Tobacco, and Firearms

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










[[Page 19442]]









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 The temporary rule will remain in effect until superseded 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