[Federal Register Volume 77, Number 110 (Thursday, June 7, 2012)]
[Rules and Regulations]
[Pages 33630-33634]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13770]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 478
[Docket No. ATF 22I; AG Order No. 3337-2012]
RIN 1140-AA44
Residency Requirements for Aliens Acquiring Firearms (2011R-23P)
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF),
Department of Justice.
ACTION: Interim final rule with request for comments.
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SUMMARY: The Department of Justice is amending the regulations of the
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) by removing
the 90-day State residency requirement for aliens lawfully present in
the United States to purchase or acquire a firearm. The Department has
determined that the Gun Control Act does not permit ATF to impose a
regulatory requirement that aliens lawfully present in the United
States are subject to a 90-day State residency requirement when such a
requirement is not applicable to U.S. citizens. In addition, upon the
effective date of this interim final rule the provisions of ATF Ruling
2004-1 will become obsolete.
DATES: Effective date: This interim rule is effective on July 9, 2012.
Comment date: Written comments must be postmarked and electronic
comments must be submitted on or before September 5, 2012. Commenters
should be aware that the electronic Federal Docket Management System
will not accept comments after Midnight Eastern Time on the last day of
the comment period.
ADDRESSES: Send comments to any of the following addresses--
James P. Ficaretta, Program Manager, Mailstop 6N-602,
Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York
Avenue NE., Washington, DC 20226; ATTN: ATF 22I. Written comments must
appear in minimum 12 point font size (.17 inches), include your mailing
address, be signed, and may be of any length.
202-648-9741 (facsimile).
http://www.regulations.gov. Federal eRulemaking portal;
follow the instructions for submitting comments.
You may also view an electronic version of this rule at the http://www.regulations.gov site.
See the Public Participation section at the end of the
SUPPLEMENTARY INFORMATION section for instructions and requirements for
submitting comments, and for information on how to request a public
hearing.
FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Enforcement
Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and
Explosives, U.S. Department of Justice, 99 New York Avenue NE.,
Washington, DC 20226, telephone (202) 648-7094.
SUPPLEMENTARY INFORMATION:
I. Background
Section 922(b)(3) of the Gun Control Act of 1968 (GCA), 18 U.S.C.
922(b)(3), makes it unlawful for a Federal firearms licensee (FFL) to
sell or deliver any firearm to any nonlicensee 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. Exceptions are
provided for over-the-counter transfers of a rifle or shotgun to out-
of-State residents if the transfers fully comply with the State laws of
the buyer and seller, and for loans and rentals of a firearm for
temporary use for lawful sporting purposes. Regulations that implement
section 922(b)(3) are contained in 27 CFR 478.99(a).
The term ``State of residence'' is defined in 27 CFR 478.11 as
``[t]he 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.'' In addition, for aliens, the definition also
provides that ``[a]n 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.'' This 90-day
length of residency requirement does not apply to U.S. citizens.
Prior to making a transfer of a firearm to a nonlicensed individual
who is a resident of the State in which the licensee's business
premises are located, the regulations at Sec. 478.124(c) require the
licensee to obtain from the transferee (buyer) a completed ATF Form
4473, Firearms Transaction Record, that shows certain information,
including whether the transferee is a citizen of the United States, and
an affirmative statement as to the
[[Page 33631]]
transferee's State of residence. In addition, before transferring to
such a nonlicensee a firearm, the licensee must obtain from the
transferee documentation establishing that the transferee is a resident
of the State in which the licensee's business premises are located.
That is, each transferee must present proof of residence in the State,
in the form of a government-issued identification document (for
example, a driver's license or State-issued identification card)
containing the person's name, residence address, date of birth, and
photograph. In the case of a transferee who is an alien legally in the
United States and who is otherwise not prohibited from possessing a
firearm, the licensee must additionally obtain from the transferee
documentation establishing that the transferee has continuously resided
in the State for 90 days. The licensee must also note on the form the
documentation used to establish this 90-day period of residency.
Examples of acceptable documentation include utility bills or a lease
agreement showing that the purchaser has resided in the State
continuously for at least 90 days prior to the transfer of the firearm.
Section 478.124(d), relating to the exception for over-the-counter
transfers of a shotgun or rifle to out-of-State residents if the
transfers fully comply with the State laws of the buyer and seller,
requires purchasers to present to the licensee documentation
establishing that the transferee is a resident of any State. In the
case of a nonlicensee who is an alien lawfully in the United States,
the licensee must additionally obtain from the transferee documentation
that the transferee has resided in such State continuously for at least
90 days prior to the transfer of the firearm. Again, examples of
acceptable documentation include utility bills or a lease agreement
showing that the purchaser has resided in the State continuously for at
least 90 days prior to the transfer of the firearm.
Section 478.125(f)(2), relating to firearms receipt and disposition
by licensed collectors, provides that the licensee must, in the case of
a transferee who is an alien legally in the United States (and who is
not a licensee), verify the identity of the transferee by examining a
valid identification document and obtain from the transferee
documentation establishing that the transferee is a resident of the
State in which the licensee's business premises are located if the
firearm is other than a shotgun or rifle. If the firearm is a shotgun
or rifle, the licensee must obtain from the transferee 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.
II. ATF Ruling 2004-1
ATF has received questions from aliens concerning the State of
residence requirement. Several aliens have asked why they were
prohibited from purchasing a firearm from a Federal firearms licensee,
contending that they had lived in the State where the licensee was
licensed for more than 90 days. In response to those concerns, ATF
issued a ruling clarifying that an FFL may not lawfully transfer a
firearm to a nonimmigrant alien unless he or she has resided in a State
continuously for at least 90 days immediately prior to the FFL
conducting a National Instant Criminal Background Check System (NICS)
check (ATF Rul. 2004-1, dated March 22, 2004). In addition, the ruling
held that if a NICS check demonstrates a nonimmigrant alien has left
the United States during the 90 days immediately preceding the NICS
check, the nonimmigrant alien does not satisfy the 90-day State of
residency requirement. This is the case even if the nonimmigrant alien
has provided other documentation, such as utility bills or a lease
agreement, to demonstrate 90 days of residency immediately preceding
the NICS check. Although ATF Rul. 2004-1 specifically addresses
transfers of firearms to nonimmigrant aliens, the residency requirement
applies to all aliens.
III. Department Determination
During the review process for a related rulemaking proceeding,
Department of Justice officials raised legal concerns regarding the 90-
day residency requirement for aliens lawfully in the United States who
wish to purchase a firearm from an FFL. The Department concluded that,
as a matter of law, the definition of ``State of residence'' in Sec.
478.11, which differentiates between U.S. citizens and aliens, is not a
permissible interpretation of section 922(b)(3) of the GCA insofar as
it applies a 90-day residency requirement to lawfully present aliens
only. See Clark v. Martinez, 543 U.S. 371, 378 (2005) (holding that a
single, undifferentiated statutory term cannot be given varying
meanings with respect to different categories of persons to which the
statutory provision applies). The Department determined that, as a
matter of law, nothing in the text of section 922(b)(3) indicates that
Congress intended the phrase ``State of residence'' to have different
meanings for different categories of people. Section 922(b)(3) includes
the term `reside in' without any further differentiation or
specification. The statute might support a range of meanings for the
phrase `reside in,' but it does not support an interpretation that
gives the phrase different meanings when applied to lawfully present
aliens and U.S. citizens.
The Department's determination is based on advice received from its
Office of Legal Counsel (OLC) (See memorandum of January 30, 2012, at
http://www.justice.gov/olc/2012/ATF90dayruleFINAL1-30-12.pdf).
IV. Interim Final Rule
Based on the Department's legal determination that the State of
residence requirement imposed by section 922(b)(3) cannot have two
different constructions--one that applies to U.S. citizens and another
that applies to lawfully present aliens--the Department is publishing
this interim final rule to make the necessary changes to existing
regulations. This rule amends the regulations in 27 CFR part 478 by
removing the 90-day residency requirement in the definition of ``State
of residence'' in Sec. 478.11. The rule also removes the unique proof
of residency requirements in Sec. Sec. 478.124 and 478.125 for aliens
purchasing a firearm. Therefore, upon the effective date of this
interim final rule, an alien lawfully present in the United States
acquiring a firearm will be subject to the same residency and proof of
residency requirements that apply to U.S. citizens.
In addition, upon the effective date of this interim final rule,
ATF Ruling 2004-1 (approved March 22, 2004) will become obsolete.
How This Document Complies With the Federal Administrative Requirements
for Rulemaking
A. Executive Order 12866 and Executive Order 13563
This rule has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), The Principles of Regulation, and with Executive Order 13563,
``Improving Regulation and Regulatory Review.'' The Department of
Justice has determined that this rule is a ``significant regulatory
action'' under Executive Order 12866, section 3(f), and accordingly
this rule has been reviewed by the Office of Management and Budget
(OMB). However, this rule will not have an annual effect on the economy
of $100 million, nor will it adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
[[Page 33632]]
environment, public health, or safety, or State, local or tribal
governments or communities. Accordingly, this rule is not an
economically significant rulemaking action as defined by Executive
Order 12866.
The interim final rule removes restrictions and lessens burdens on
various parties. It removes the 90-day residency requirement applicable
only to aliens legally in the United States and not to citizens, as
well as the requirement that aliens, but not citizens, purchasing a
firearm provide proof of 90 days continuous residency through
substantiating documentation (e.g., utility bills or a lease
agreement). Upon the rule's effective date, lawfully present aliens and
U.S. citizens will be subject to the same residency and proof of
residency requirements. This will reduce the time burden on both
nonlicensees (i.e., aliens lawfully present in the United States) and
licensees from completing the paperwork requirements associated with
transferring firearms. As explained below, ATF estimates that this rule
will reduce such burdens by approximately 2,457 hours (1,867 hours for
nonlicensees + 590 hours for licensees).
The burden placed on all nonlicensees acquiring firearms, including
alien purchasers, involves the time it takes to indicate their State of
residence on ATF Form 4473. In calendar year 2010, ATF estimates that
Form 4473 was completed 14,409,616 times and that it took four seconds
for a firearms purchaser to provide his or her State of residence on
the form. As such, ATF estimates the total time for firearms purchasers
to indicate their State of residence on the form to be approximately
16,010 hours. In the case of an alien purchaser who is legally in the
United States, the purchaser must provide the licensee with proof of
residency through the use of documentation showing that the individual
has resided in the State continuously for at least 90 days prior to the
transfer of the firearm. ATF estimates that in calendar year 2010,
approximately 23,582 aliens purchased firearms. ATF estimates the
burden on alien purchasers to comply with this requirement was
approximately 4.75 minutes with an annual burden of approximately 1,867
hours (23, 582 x 4.75 minutes = 1,867 hours). The interim final rule
eliminates this burden.
As indicated, the interim final rule also reduces the economic
burden on licensees as it relates to Form 4473. According to ATF's
National Licensing Center, there are approximately 60,844 Federal
firearms licensees engaged in the business of selling firearms. Before
transferring a firearm to an alien legally in the United States, the
licensee must obtain from the transferee documentation establishing
that the transferee has been a resident of the State in which the
licensee's business premises are located for at least 90 days and note
on the Form 4473 the documentation used for that purpose. ATF estimates
the burden placed on a licensee to comply with this requirement to be
approximately 1.50 minutes per alien purchaser, with an annual burden
of approximately 590 hours (23,582 x 1.50 minutes = 590 hours). The
interim final rule removes this burden.
B. Executive Order 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, the Attorney General has determined that this
regulation does not have sufficient federalism implications to warrant
the preparation of a federalism summary impact statement.
C. Executive Order 12988
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
D. Administrative Procedure Act (APA)
This interim final rule is being published with a process for post-
promulgation submission of public comments. Pursuant to section
553(b)(3)(B) of the Administrative Procedure Act, 5 U.S.C.
553(b)(3)(B), the APA's general requirement to allow for public notice
and comment prior to the promulgation of a rule does not apply when an
agency finds, for ``good cause,'' that such prior notice and comment
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' The Department of Justice has concluded as a matter of law
that the State of residence requirement in the Gun Control Act cannot
have two different constructions, one that applies to U.S. citizens and
another that applies to lawfully present aliens, because the statutory
text applies the requirement, without distinction, to a covered sale or
delivery of a firearm to ``any person.'' This conclusion is compelled
by Supreme Court decisions holding that a single undifferentiated
statutory term must be given a single interpretation across all of its
potential applications. See, e.g., Clark v. Martinez, 543 U.S. 371, 378
(2005); United States v. Santos, 533 U.S. 507 (2008). Section 27 CFR
478.11 does not currently conform with that legal conclusion, because
it requires lawfully present aliens to meet an extra requirement in
order to demonstrate residency. As a result, there is a discrepancy
between the current regulatory definition and the Department's
interpretation of the statute on which that definition is based. For as
long as that discrepancy persists, a departmental regulation will bar
some lawfully present aliens from purchasing firearms on the basis of a
requirement the Department has concluded is not consistent with
applicable law. Because ATF must, as a matter of law, rectify that
discrepancy, pre-publication public comment is unnecessary, and good
cause therefore exists for issuing this rule without employing the
usual notice and comment procedures of the APA. Additionally, the
Attorney General finds that delaying this regulatory action would be
contrary to the public interest. The Department, however, welcomes
public comment on this interim final rule after the rule is published.
E. Regulatory Flexibility Act
The provisions of the Regulatory Flexibility Act relating to an
initial and final regulatory flexibility analysis are not applicable to
this rule because the agency was not required to publish a general
notice of proposed rulemaking under 5 U.S.C. 553 or any other law.
F. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
804. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic and
export markets.
G. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995, Public Law 104-4.
[[Page 33633]]
H. Paperwork Reduction Act
The regulations that are being amended in this interim final rule
revise collections of information covered by the Paperwork Reduction
Act of 1995, Public Law 104-13, 44 U.S.C. ch. 35, and its implementing
regulations, 5 CFR part 1320. The collections of information at
Sec. Sec. 478.124 and 478.125 were approved by OMB under control
numbers 1140-0020 and 1140-0021 (Sec. 478.124), and 1140-0032 (Sec.
478.125). ATF requested emergency clearance from OMB of revisions to
control number 1140-0020 (Form 4473) to conform with these regulatory
changes, and OMB approved those revisions on April 13, 2012, for a
period of 180 days. On October 4, 2011, at ATF's request, the approval
on the collection of information under 1140-0021 was discontinued.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a valid
control number assigned by OMB.
Public Participation
A. Comments Sought
ATF is requesting comments on the interim final rule from all
interested persons. ATF is also specifically requesting comments on the
clarity of this interim final rule and how it may be made easier to
understand.
All comments must reference this document docket number (ATF 22I),
be legible, and include your name and mailing address. ATF will treat
all comments as originals and will not acknowledge receipt of comments.
Comments received on or before the closing date will be carefully
considered. Comments received after that date will be given the same
consideration if it is practical to do so, but assurance of
consideration cannot be given except as to comments received on or
before the closing date.
B. Confidentiality
Comments, whether submitted electronically or on paper, will be
made available for public viewing at ATF, and on the Internet as part
of the eRulemaking initiative, and are subject to the Freedom of
Information Act. Commenters who do not want their name or other
personal identifying information posted on the Internet should submit
their comment by mail or facsimile, along with a separate cover sheet
that contains their personal identifying information. Both the cover
sheet and comment must reference this docket number. Information
contained in the cover sheet will not be posted on the Internet. Any
personal identifying information that appears within the comment will
be posted on the Internet and will not be redacted by ATF.
Any material that the commenter considers to be inappropriate for
disclosure to the public should not be included in the comment. Any
person submitting a comment shall specifically designate that portion
(if any) of his comments that contains material that is confidential
under law (e.g., trade secrets, processes, etc.). Any portion of a
comment that is confidential under law shall be set forth on pages
separate from the balance of the comment and shall be prominently
marked ``confidential'' at the top of each page. Confidential
information will be included in the rulemaking record but will not be
disclosed to the public. Any comments containing material that is not
confidential under law may be disclosed to the public. In any event,
the name of the person submitting a comment is not exempt from
disclosure.
C. Submitting Comments
Comments may be submitted in any of three ways:
Mail: Send written comments to the address listed in the
ADDRESSES section of this document. Written comments must appear in
minimum 12 point font size (.17 inches), include your mailing address,
be signed, and may be of any length.
Facsimile: You may submit comments by facsimile
transmission to (202) 648-9741. Faxed comments must:
(1) Be legible and appear in minimum 12 point font size (.17
inches);
(2) Be on 8\1/2\'' x 11'' paper;
(3) Contain a legible, written signature; and
(4) Be no more than five pages long. ATF will not accept faxed
comments that exceed five pages.
Federal eRulemaking Portal: To submit comments to ATF via
the federal eRulemaking portal, visit http://www.regulations.gov and
follow the instructions for submitting comments.
D. Request for Hearing
Any interested person who desires an opportunity to comment orally
at a public hearing should submit his or her request, in writing, to
the Director of ATF within the 90-day comment period. The Director,
however, reserves the right to determine, in light of all
circumstances, whether a public hearing is necessary.
Disclosure
Copies of this interim rule and the comments received will be
available for public inspection by appointment during normal business
hours at: ATF Reading Room, Room 1E-062, 99 New York Avenue NE.,
Washington, DC 20226, telephone (202) 648-8740.
Drafting Information
The author of this document is James P. Ficaretta, Enforcement
Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and
Explosives.
List of Subjects in 27 CFR Part 478
Administrative practice and procedure, Arms and ammunition,
Authority delegations, Customs duties and inspection, Domestic
violence, Exports, Imports, Law enforcement personnel, Military
personnel, Nonimmigrant aliens, Penalties, Reporting and recordkeeping
requirements, Research, Seizures and forfeitures, and Transportation.
Authority and Issuance
Accordingly, for the reasons stated in the preamble, 27 CFR part
478 is amended as follows:
PART 478--COMMERCE IN FIREARMS AND AMMUNITION
0
1. The authority citation for 27 CFR part 478 continues to read as
follows:
Authority: 5 U.S.C. 552(a); 18 U.S.C. 847, 921-931; 44 U.S.C.
3504(h).
0
2. Section 478.11 is amended by revising the definition of ``State of
residence'' to read as follows:
Sec. 478.11 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, as stated in 18 U.S.C. 921(b). 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 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 to the United States on a three-
week vacation to State X. A does not have a state of residence
[[Page 33634]]
in State X because A does not have the intention of making a home in
State X while on vacation. This is true regardless of the length of
the vacation.
Example 4. A, an alien, travels to the United States to work for
three years in State X. A rents a home in State X, moves his
personal possessions into the home, and his family resides with him
in the home. A intends to reside in State X during the 3-year period
of his employment. A is a resident of State X.
* * * * *
0
3. Section 478.124 is amended as follows:
0
a. By removing and reserving paragraph (c)(3)(ii).
0
b. In paragraph (d), by removing the proviso after the colon and by
removing the colon and adding in its place a period.
0
c. In paragraph (e), by removing the words ``, except for the
provisions of paragraph (c)(3)(ii)'' at the end of the paragraph.
0
d. In paragraph (f), by removing the words ``, 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'' in the third sentence.
0
4. Section 478.125(f) is revised to read as follows:
Sec. 478.125 Record of receipt and disposition.
* * * * *
(f) Firearms receipt and disposition by licensed collectors. (1)
Each licensed collector shall enter into a record each receipt and
disposition of firearms curios or relics. The record required by this
paragraph shall be maintained in bound form under the format prescribed
below. The purchase or other acquisition of a curio or relic shall,
except as provided in paragraph (g) of this section, be recorded not
later than the close of the next business day following the date of
such purchase or other acquisition. The record shall show the date of
receipt, the name and address or the name and license number of the
person from whom received, the name of the manufacturer and importer
(if any), the model, serial number, type, and the caliber or gauge of
the firearm curio or relic. The sale or other disposition of a curio or
relic shall be recorded by the licensed collector not later than 7 days
following the date of such transaction. When such disposition is made
to a licensee, the commercial record of the transaction shall be
retained, until the transaction is recorded, separate from other
commercial documents maintained by the licensee, and be readily
available for inspection. The record shall show the date of the sale or
other disposition of each firearm curio or relic, the name and address
of the person to whom the firearm curio or relic is transferred, or the
name and license number of the person to whom transferred if such
person is a licensee, and the date of birth of the transferee if other
than a licensee. In addition, the licensee shall 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.
(2) The format required for the record of receipt and disposition
of firearms by collectors is as follows:
Firearms Collectors Acquisition and Disposition Record
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Description of firearm Receipt Disposition
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Driver's
Name and Name and license No. or
Serial Caliber address or address or Date of birth other
Manufacturer and/or importer Model No. Type or gauge Date name and Date name and if non- identification
license No. license No. licensee if non-
licensee
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* * * * *
Dated: June 1, 2012.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2012-13770 Filed 6-6-12; 8:45 am]
BILLING CODE 4410-FY-P