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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: February 5, 2002 (Volume 67, Number 24)]
[Rules and Regulations]               
[Page 5421-5427]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05fe02-24]                         

[[Page 5421]]
-----------------------------------------------------------------------
Part IV

Department of the Treasury
-----------------------------------------------------------------------
Bureau of Alcohol, Tobacco, and Firearms
-----------------------------------------------------------------------
27 CFR Part 178

Implementation of Public Law 105-277, Omnibus Consolidated and 
Emergency Supplemental Appropriations Act, 1999, Relating to Firearms 
Disabilities for Nonimmigrant Aliens, and Requirement for Import Permit 
for Nonimmigrant Aliens Bringing Firearms and Ammunition Into the 
United States (2001R-332P); Final and Proposed Rules

[[Page 5422]]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY

Bureau of Alcohol, Tobacco and Firearms

27 CFR Part 178

[T.D. ATF-471]
RIN 1512-AB93

Implementation of Public Law 105-277, Omnibus Consolidated and 
Emergency Supplemental Appropriations Act, 1999, Relating to Firearms 
Disabilities for Nonimmigrant Aliens, and Requirement for Import Permit 
for Nonimmigrant Aliens Bringing Firearms and Ammunition Into the 
United States (2001R-332P)

AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Department of 
the Treasury.

ACTION: Temporary rule (Treasury decision).
-----------------------------------------------------------------------
SUMMARY: We are amending the regulations to implement the provision of 
Public Law 105-277, Omnibus Consolidated and Emergency Supplemental 
Appropriations Act, 1999, relating to firearms disabilities for 
nonimmigrant aliens. These regulations implement the law by 
prohibiting, with certain exceptions, the transfer to and possession of 
firearms and ammunition by aliens in the United States in a 
nonimmigrant classification. In addition, we are amending the 
regulations to give the Secretary of the Treasury or his delegate the 
authority to require nonresidents bringing firearms and ammunition into 
the United States for hunting or sporting purposes to obtain an import 
permit. In the interest of national security and public safety, ATF 
will require nonimmigrant aliens to obtain import permits for all 
importations of firearms and ammunition into the United States (except 
for those exempt importations specified in the regulations) as of the 
effective date of this regulation. The temporary rule will remain in 
effect until superseded by final regulations.
    In the same issue, but a separate part of this Federal Register, we 
are also issuing a notice of proposed rulemaking inviting comments on 
the temporary rule for a 90-day comment period following the 
publication date of this temporary rule.

DATES: The temporary regulations are effective February 19, 2002.

FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Regulations 
Division, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts 
Avenue, NW., Washington, DC 20226 (202-927-8210).

SUPPLEMENTARY INFORMATION:

Background

I. Public Law 105-277--Firearms Disabilities for Nonimmigrant Aliens

    On October 21, 1998, Public Law 105-277 (112 Stat. 2681), Omnibus 
Consolidated and Emergency Supplemental Appropriations Act, 1999 
(hereafter, ``the Act''), was enacted. The Act amended the Gun Control 
Act of 1968 (GCA), as amended (18 U.S.C. Chapter 44). One of the new 
statutory provisions prohibits, with certain exceptions, the transfer 
to and possession of firearms and ammunition by aliens in the United 
States in a nonimmigrant classification. While this prohibition became 
effective upon the date of enactment, we have not been able to 
effectively enforce the prohibition without implementing regulations. 
One reason for the delay was the fact that language in the Act did not 
correspond with existing immigration law. Numerous meetings with the 
Department of Justice, including the Immigration and Naturalization 
Service (INS), were required to determine how to interpret and apply 
the Act. This includes enabling the National Criminal Instant 
Background Check System to query INS data on nonimmigrant aliens.
    On September 11, 2001, grave acts of terrorism were committed 
against the United States by foreign terrorists, at least some of whom 
were in the United States in a nonimmigrant classification. On 
September 23, 2001, in Executive Order 13224 (published in the Federal 
Register on September 25, 2001 (66 FR 49079)), President Bush found 
these acts of terrorism, together with the ``continuing and immediate 
threat of further acts on United States nationals or the United States 
constitute an unusual and extraordinary threat to the national 
security, foreign policy, and economy of the United States.'' Immediate 
enhanced enforcement of the general prohibition on nonimmigrant aliens 
possessing and receiving firearms is necessary to counter this threat. 
The new statutory provision and the regulation changes necessitated by 
the law are as follows:
Firearms Disabilities for Nonimmigrant Aliens
    Section 922(g)(5) of the GCA makes it unlawful for any person who 
is an alien illegally or unlawfully in the United States to ship or 
transport any firearm or ammunition in interstate or foreign commerce, 
or receive any firearm or ammunition which has been shipped or 
transported in interstate or foreign commerce, or possess any firearm 
or ammunition in or affecting commerce. Section 922(d)(5) makes it 
unlawful for any person to sell or otherwise dispose of a firearm or 
ammunition to any person knowing or having reasonable cause to believe 
that the recipient is an alien illegally or unlawfully in the United 
States.
    The Act amended section 922(g)(5) and (d)(5) to expand the list of 
persons who may not lawfully ship, transfer, possess, or receive 
firearms or ammunition to include, with certain exceptions, aliens 
admitted to the United States under a nonimmigrant visa, as that term 
is defined in section 101(a)(26) of the Immigration and Nationality Act 
(8 U.S.C. 1101(a)(26)). A nonimmigrant visa does not itself provide 
nonimmigrant status. A visa simply facilitates travel, and expedites 
inspection and admission to the United States, by showing that the 
State Department does not believe the individual to be inadmissible and 
has authorized him or her to apply for admission at a U.S. port of 
entry. Moreover, just under fifty percent of nonimmigrant aliens need a 
nonimmigrant visa to enter the United States. All other nonimmigrant 
aliens fall within various categories which are exempt from needing a 
nonimmigrant visa (e.g., participation in the Visa Waiver Program; 
Canadian visitors). The legislative history of the Act demonstrates 
Congress intended the new prohibition to cover all aliens in the United 
States in a nonimmigrant classification (as defined by section 
101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)(15))), not merely nonimmigrants who possess a visa. Therefore, 
we interpret the Act to apply to any alien in the United States in a 
nonimmigrant classification and have provided an applicable definition 
of ``nonimmigrant alien'' in this temporary rule. This definition 
includes, in large part, persons traveling temporarily in the United 
States for business or pleasure, persons studying in the United States 
who maintain a residence abroad, and certain foreign workers.
    Furthermore, the prohibition is based on an alien's present status. 
Therefore, for example, if an alien was admitted to the United States 
in a nonimmigrant classification, but has become a permanent resident 
alien by the time he or she tries to purchase a firearm, he or she is 
not a prohibited person. The fact he or she was admitted in the 
nonimmigrant classification is not determinative.

[[Page 5423]]

    The prohibition does not apply to aliens lawfully admitted for 
permanent residence. It also does not apply to any other alien who is 
not a nonimmigrant alien, including an alien who (1) has been granted 
asylum under section 208 of the Immigration and Nationality Act, 8 
U.S.C. 1158; (2) has been paroled into the United States under section 
212(d)(5) of the Immigration and Nationality Act, 8 U.S.C. 1182(d)(5); 
or (3) has been admitted to the United States as a refugee under 
section 207 of the Immigration and Nationality Act, 8 U.S.C. 1157. 
However, the prohibition does apply to any alien in a nonimmigrant 
classification who has a pending asylum application. Note also that 
although the nonimmigrant prohibition does not apply to aliens who are 
illegally or unlawfully in the United States (including a nonimmigrant 
alien whose authorized period of stay has expired or who has violated 
the terms of the nonimmigrant category in which he or she was admitted) 
those aliens are subject to firearms and ammunition disabilities under 
the prohibition pertaining to aliens illegally or unlawfully in the 
United States, 18 U.S.C. 922(g)(5)(A).
    As indicated, there are certain exceptions to the general rule. The 
prohibition does not apply if the nonimmigrant alien is:
    (A) Admitted to the United States for lawful hunting or sporting 
purposes or is in possession of a hunting license or permit lawfully 
issued in the United States;
    (B) An official representative of a foreign government who is--
    (1) Accredited to the United States Government or the Government's 
mission to an international organization having its headquarters in the 
United States; or
    (2) En route to or from another country to which that alien is 
accredited;
    (C) An official of a foreign government or a distinguished foreign 
visitor who has been so designated by the Department of State; or
    (D) A foreign law enforcement officer of a friendly foreign 
government entering the United States on official law enforcement 
business.
    The temporary regulation provides that with respect to exception 
(A) above, ``admitted to the United States for lawful hunting or 
sporting purposes'' means: (1) Is entering the United States to 
participate in a competitive target shooting event sponsored by a 
national, State, or local organization, devoted to the competitive use 
or other sporting use of firearms; or (2) is entering the United States 
to display firearms at a sports or hunting trade show sponsored by a 
national, State, or local firearms trade organization, devoted to the 
competitive use or other sporting use of firearms. We do not interpret 
the ``admitted to'' prong to cover persons entering the United States 
to hunt, because it would be difficult to verify this justification. 
Moreover, such persons can take steps to fall within the hunting 
license or permit exception.
    With respect to exceptions B and C, the exceptions only apply to 
officials who are shipping, transporting, receiving, or possessing 
firearms or ammunition in their official capacity. Therefore, exception 
B does not apply, for example, to a diplomat who wants to possess a 
firearm to go hunting for pleasure (although the diplomat would qualify 
under exception A if he or she possessed a hunting license or permit 
lawfully issued in the United States). This limitation will not apply 
to distinguished foreign visitors who are private citizens and 
therefore do not have an official capacity.
    Finally, with regard to exception D, we interpret a ``friendly 
foreign government'' to be any government with whom the United States 
has diplomatic relations and whom the United States does not identify 
as a State sponsor of terrorism.
    In addition, the law gives the Attorney General the authority to 
waive the prohibition upon approval of a petition filed by the 
nonimmigrant alien. The waiver provision will be addressed in 
regulations issued by the Department of Justice.
    As with the nonimmigrant alien disability in general, these 
exceptions apply only to aliens in lawful nonimmigrant status. For 
example, an alien who has overstayed his or her period of lawful 
admission is prohibited from purchasing or possessing a firearm 
regardless of whether or not the alien has a hunting license.
    Several amendments have been made to Sec. 178.124 to reflect 
changes to the Firearms Transaction Record, ATF Form 4473, which have 
been made to ensure prohibited nonimmigrant aliens do not obtain 
firearms from Federal firearms licensees. Specifically, every person 
must list on Form 4473 their country of citizenship, rather than just 
answering if they are a United States citizen. Moreover, any person who 
is not a United States citizen must include his or her INS-issued alien 
number or admission number on the Form 4473. In addition, for any 
nonimmigrant alien relying on an exception or waiver from the 
prohibition, the nonimmigrant must present applicable documentation 
establishing the exception or waiver and the licensee must note the 
type of documentation on the Form 4473 and attach a copy of the 
documentation to the form. Significantly, even if a nonimmigrant alien 
falls within an exception to, or obtains a waiver from, the 
nonimmigrant alien prohibition contained in section 922(g)(5)(B), he or 
she cannot purchase a firearm from a Federal firearms licensee unless 
he or she satisfies the State of residency requirements. (See 
Sec. 178.11, definition of ``State of residence.'')
    We are also amending Secs. 178.44 and 178.45 to require any 
nonimmigrant alien applying for a Federal firearms license or renewal 
of a Federal firearms license, including a collector's license, to 
provide applicable documentation that he or she falls within an 
exception to, or has obtained a waiver from, the nonimmigrant alien 
prohibition. This requirement will apply, in the case of a corporation, 
partnership, or association, to any individual possessing, directly or 
indirectly, the power to direct or cause the direction of the 
management and policies of the corporation, partnership, or 
association. This amendment is necessary to ensure ATF does not issue a 
license to any person who is prohibited from possessing a firearm or 
ammunition. This is consistent with 18 U.S.C. 923(d)(1)(B), which 
allows ATF to deny an application for license to any applicant who is 
prohibited from receiving firearms or any applicant whose officers or 
directors are so prohibited.
    Moreover, we are amending the regulations to require any 
nonimmigrant alien who completes a Form 6 (or any licensee who 
completes a Form 6 to import firearms or ammunition for a nonimmigrant 
alien) to attach applicable documentation to the Form 6 establishing 
that the alien falls within an exception to, or has obtained a waiver 
from, the nonimmigrant alien prohibition. This is necessary to ensure 
we do not issue import permits to prohibited nonimmigrant aliens. We 
are also amending the regulations to require nonimmigrant aliens who 
fall within an exception to, or have obtained a waiver from, the 
nonimmigrant alien prohibition to provide applicable documentation to 
the United States Customs Service establishing the exception or waiver, 
before importing or bringing a firearm or ammunition into the United 
States. This requirement applies whether or not the nonimmigrant is 
required to complete a Form 6. This is necessary to ensure prohibited 
nonimmigrant aliens do not possess firearms or ammunition in the United 
States.

[[Page 5424]]

    Conforming changes to the regulations are prescribed in 
Secs. 178.11, 178.32, 178.99, 178.120, and 178.124.

II. Public Law 105-277--Additional Provisions

    The Act amended the GCA to require, with certain exceptions, 
applicants for dealer's licenses to certify that secure gun storage or 
safety devices will be available at any place where firearms are sold 
to nonlicensees. The law also amended certain definitions in the GCA, 
including ``antique firearm,'' ``rifle,'' and ``shotgun.'' Proposed 
regulations implementing these provisions of the Act will be addressed 
in a separate forthcoming rulemaking document.

III. Importation of Firearms and Ammunition by Nonresidents of the 
United States

    This temporary rule amends section 178.115(d)(2)-(d)(5) and section 
178.115(e). Section 178.115(d)(2)-(d)(5) states that the importation of 
firearms and ammunition by certain foreign military personnel, official 
representatives of foreign governments, distinguished foreign visitors, 
and foreign law enforcement officers of friendly foreign governments 
are considered exempt importations for which an ATF Form 6 (an 
application to import a firearm or ammunition) is not required. Section 
178.115(e) states that notwithstanding section 178.115(d)(2)-(d)(5), 
the Secretary of the Treasury may in the interest of public safety and 
necessity require a permit for the importation of firearms and 
ammunition. This regulation adds those persons covered by section 
178.115(d)(1) to those persons to which section 178.115(e) applies.
    Section 178.115(d)(1) states that the importation of firearms and 
ammunition by nonresidents of the United States for legitimate hunting 
or lawful sporting purposes (if the firearms and ammunition are taken 
out of the United States when the shooting activity is concluded) is 
considered an exempt importation for which an ATF Form 6 is not 
required. As of the effective date of this regulation, ATF will require 
nonimmigrant aliens to obtain import permits for all importations of 
firearms and ammunition into the United States, except for those exempt 
importations listed in section 178.115(d)(2)-(d)(5). This will ensure 
these individuals do not fall within the nonimmigrant alien 
prohibition. It will also enable ATF to be aware of non-immigrant 
aliens who are bringing or attempting to bring firearms or ammunition 
into the United States. Finally, it will ensure nonimportable firearms 
and ammunition do not enter the United States.
    ATF also is amending section 178.115(d)(2)-(d)(5). In the interest 
of national security and public safety, these provisions are being 
amended so that they only apply if the firearms and unexpended 
ammunition are taken back out of the territorial limits of the United 
States when the person who brought them in leaves the country.

How This Document Complies With the Federal Administrative 
Requirements for Rulemaking

A. Executive Order 12866

    We have determined that this temporary rule is not a significant 
regulatory action as defined in Executive Order 12866, in part, because 
the economic effects flow directly from the underlying statute and not 
from this temporary rule. Therefore, a regulatory assessment is not 
required.

B. Administrative Procedure Act

    In light of the recent terrorist attack on America by persons, at 
least some of whom were nonimmigrant aliens, and the continuing and 
immediate threat of further attacks on United States nationals or the 
United States, which the President has found constitute an ``unusual 
and extraordinary threat to the national security, foreign policy, and 
economy of the United States,'' we have found it 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). Moreover, the 
amendments are excluded from the rulemaking provisions of 5 U.S.C. 553 
because they involve a foreign affairs function of the United States. 
Accordingly, it is not necessary to issue this Treasury decision with 
notice and public procedure thereon under 5 U.S.C. 553(b), or subject 
to the effective date limitations in 5 U.S.C. 553(d).

C. Regulatory Flexibility Act

    It is hereby certified that this regulation will not have a 
significant economic impact on a substantial number of small entities. 
The paperwork burdens associated with compliance with the regulation 
are not significant. Accordingly, a regulatory flexibility analysis is 
not required.

D. 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 number 1512-0570. 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 the 
Office of Management and Budget.
    The collections of information in this regulation are in sections 
27 CFR 178.44, 178.45, 178.120, and 178.124.
    This information is required to ensure compliance with the 
provisions of Public Law 105-277. The collections of information are 
mandatory. The likely respondents are individuals and businesses.
    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 in the same separate part of this Federal Register.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in the Federal Register in April and October of each year. The RIN 
contained in the heading of this document can be used to cross-
reference this action with the Unified Agenda.

Drafting Information

    The author of this document is James P. Ficaretta, Regulations 
Division, Bureau of Alcohol, Tobacco and Firearms.

List of Subjects in Part 178

    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 requirements, 
Research, Seizures and forfeitures, and Transportation.

Authority and Issuance

    For the reasons discussed in the preamble, ATF amends 27 CFR Part 
178 as follows:

[[Page 5425]]

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 178.1(a) is revised to read as follows:


Sec. 178.1  Scope of regulations.

    (a) General. The regulations contained in this part relate to 
commerce in firearms and ammunition and are promulgated to implement 
Title I, State Firearms Control Assistance (18 U.S.C. Chapter 44), of 
the Gun Control Act of 1968 (82 Stat. 1213) as amended by Pub. L. 99-
308 (100 Stat. 449), Pub. L. 99-360 (100 Stat. 766), Pub. L. 99-408 
(100 Stat. 920), Pub. L. 103-159 (107 Stat. 1536), Pub. L. 103-322 (108 
Stat. 1796), Pub. L. 104-208 (110 Stat. 3009), and Pub. L. 105-277 (112 
Stat. 2681).
* * * * *
    Par. 3. Section 178.11 is amended by adding definitions for 
``Admitted to the United States for lawful hunting or sporting 
purposes,'' ``Alien,'' ``Friendly foreign government,'' ``Hunting 
license or permit lawfully issued in the United States,'' and 
``Nonimmigrant alien'' to read as follows:


Sec. 178.11  Meaning of terms.

* * * * *
    Admitted to the United States for lawful hunting or sporting 
purposes. (a) Is entering the United States to participate in a 
competitive target shooting event sponsored by a national, State, or 
local organization, devoted to the competitive use or other sporting 
use of firearms; or
    (b) Is entering the United States to display firearms at a sports 
or hunting trade show sponsored by a national, State, or local firearms 
trade organization, devoted to the competitive use or other sporting 
use of firearms.
    Alien. Any person not a citizen or national of the United States.
* * * * *
    Friendly foreign government. Any government with whom the United 
States has diplomatic relations and whom the United States has not 
identified as a State sponsor of terrorism.
* * * * *
    Hunting license or permit lawfully issued in the United States. A 
license or permit issued by a State for hunting which is valid and 
unexpired.
* * * * *
    Nonimmigrant alien. An alien in the United States in a nonimmigrant 
classification as defined by section 101(a)(15) of the Immigration and 
Nationality Act (8 U.S.C. 1101(a)(15)).
* * * * *
    Par. 4. Section 178.32 is amended by revising paragraphs (a)(5) and 
(d)(5), and by adding new paragraph (f) to read as follows:


Sec. 178.32  Prohibited shipment, transportation, possession, or 
receipt of firearms and ammunition by certain persons.

    (a) * * *
    (5) Being an alien--
    (i) Is illegally or unlawfully in the United States; or
    (ii) Except as provided in paragraph (f) of this section, is a 
nonimmigrant alien: Provided, That the provisions of this paragraph 
(a)(5)(ii) do not apply to any nonimmigrant alien if that alien is-
    (A) Admitted to the United States for lawful hunting or sporting 
purposes or is in possession of a hunting license or permit lawfully 
issued in the United States;
    (B) An official representative of a foreign government who is 
either accredited to the United States Government or the Government's 
mission to an international organization having its headquarters in the 
United States or is en route to or from another country to which that 
alien is accredited. This exception only applies if the firearm or 
ammunition is shipped, transported, possessed, or received in the 
representative's official capacity;
    (C) An official of a foreign government or a distinguished foreign 
visitor who has been so designated by the Department of State. This 
exception only applies if the firearm or ammunition is shipped, 
transported, possessed, or received in the official's or visitor's 
official capacity, except if the visitor is a private individual who 
does not have an official capacity; or
    (D) A foreign law enforcement officer of a friendly foreign 
government entering the United States on official law enforcement 
business,
* * * * *
    (d) * * *
    (5) Being an alien--
    (i) Is illegally or unlawfully in the United States; or
    (ii) Except as provided in paragraph (f) of this section, is a 
nonimmigrant alien: Provided, That the provisions of this paragraph 
(d)(5)(ii) do not apply to any nonimmigrant alien if that alien is-
    (A) Admitted to the United States for lawful hunting or sporting 
purposes or is in possession of a hunting license or permit lawfully 
issued in the United States;
    (B) An official representative of a foreign government who is 
either accredited to the United States Government or the Government's 
mission to an international organization having its headquarters in the 
United States or en route to or from another country to which that 
alien is accredited. This exception only applies if the firearm or 
ammunition is shipped, transported, possessed, or received in the 
representative's official capacity;
    (C) An official of a foreign government or a distinguished foreign 
visitor who has been so designated by the Department of State. This 
exception only applies if the firearm or ammunition is shipped, 
transported, possessed, or received in the official's or visitor's 
official capacity, except if the visitor is a private individual who 
does not have an official capacity; or
    (D) A foreign law enforcement officer of a friendly foreign 
government entering the United States on official law enforcement 
business,
* * * * *
    (f) Pursuant to 18 U.S.C. 922(y)(3), any nonimmigrant alien may 
receive a waiver from the prohibition contained in paragraph (a)(5)(ii) 
of this section, if the Attorney General approves a petition for the 
waiver.
    Par. 5. Section 178.44 is amended by revising paragraph (a), by 
adding a new sentence in paragraph (b) after the second sentence, and 
by adding a parenthetical text at the end of the section to read as 
follows:


Sec. 178.44  Original license.

    (a)(1) Any person who intends to engage in business as a firearms 
or ammunition importer or manufacturer, or firearms dealer, or who has 
not previously been licensed under the provisions of this part to so 
engage in business, or who has not timely submitted an application for 
renewal of the previous license issued under this part, must file an 
application for license, ATF Form 7 (Firearms), in duplicate, with ATF 
in accordance with the instructions on the form. The application must:
    (i) Be executed under the penalties of perjury and the penalties 
imposed by 18 U.S.C. 924;
    (ii) Include a photograph and fingerprints as required in the 
instructions on the form;
    (iii) If the applicant (including, in the case of a corporation, 
partnership, or association, any individual possessing, directly or 
indirectly, the power to direct or cause the direction of the 
management and policies of the corporation, partnership, or 
association) is a nonimmigrant alien, applicable documentation 
demonstrating that the nonimmigrant alien falls within an

[[Page 5426]]

exception to or has obtained a waiver from the nonimmigrant alien 
provision (e.g., a hunting license or permit lawfully issued in the 
United States; waiver);
    (iv) Be accompanied by a completed ATF Form 5300.37 (Certification 
of Compliance with State and Local Law) and ATF Form 5300.36 
(Notification of Intent to Apply for a Federal Firearms License); and
    (v) Include the appropriate fee in the form of money order or check 
made payable to the Bureau of Alcohol, Tobacco and Firearms.
    (2) ATF Forms 7 (Firearms), ATF Forms 5300.37, and ATF Forms 
5300.36 may be obtained by contacting any ATF office.
    (b) * * * If the applicant (including, in the case of a 
corporation, partnership, or association, any individual possessing, 
directly or indirectly, the power to direct or cause the direction of 
the management and policies of the corporation, partnership, or 
association) is a nonimmigrant alien, the application must include 
applicable documentation demonstrating that the nonimmigrant alien 
falls within an exception to or has obtained a waiver from the 
nonimmigrant alien provision (e.g., a hunting license or permit 
lawfully issued in the United States; waiver). * * *

(Paragraphs (a) and (b) approved by the Office of Management and 
Budget under control number 1512-0570)

    Par. 6. Section 178.45 is amended by adding a new sentence after 
the first sentence and by adding a parenthetical text at the end of the 
section to read as follows:


Sec. 178.45  Renewal of license.

    * * * If the applicant is a nonimmigrant alien, the application 
must include applicable documentation demonstrating that the 
nonimmigrant alien falls within an exception to or has obtained a 
waiver from the nonimmigrant alien provision (e.g., a hunting license 
or permit lawfully issued in the United States; waiver). * * *

(Approved by the Office of Management and Budget under control 
number 1512-0570)

    Par. 7. Section 178.99(c)(5) is revised to read as follows:


Sec. 178.99  Certain prohibited sales or deliveries.

* * * * *
    (c) * * *
    (5) Is an alien illegally or unlawfully in the United States or, 
except as provided in Sec. 178.32(f), is a nonimmigrant alien: 
Provided, That the provisions of this paragraph (c)(5) do not apply to 
any nonimmigrant alien if that alien is--
    (i) Admitted to the United States for lawful hunting or sporting 
purposes or is in possession of a hunting license or permit lawfully 
issued in the United States;
    (ii) An official representative of a foreign government who is 
either accredited to the United States Government or the Government's 
mission to an international organization having its headquarters in the 
United States or en route to or from another country to which that 
alien is accredited. This exception only applies if the firearm or 
ammunition is shipped, transported, possessed, or received in the 
representative's official capacity;
    (iii) An official of a foreign government or a distinguished 
foreign visitor who has been so designated by the Department of State. 
This exception only applies if the firearm or ammunition is shipped, 
transported, possessed, or received in the official's or visitor's 
official capacity, except if the visitor is a private individual who 
does not have an official capacity; or
    (iv) A foreign law enforcement officer of a friendly foreign 
government entering the United States on official law enforcement 
business;
* * * * *
    Par. 8. Section 178.115 is amended by revising paragraphs (d)(2) 
through (d)(5) and by removing ``(d)(2),'' in paragraph (e) and adding 
in its place ``(d)(1), (2),'' to read as follows:


Sec. 178.115  Exempt importation.

* * * * *
    (d) * * *
    (2) Foreign military personnel on official assignment to the United 
States who bring such firearms or ammunition into the United States for 
their exclusive use while on official duty in the United States, and 
such firearms and unexpended ammunition are taken back out of the 
territorial limits of the United States by such foreign military 
personnel when they leave the United States;
    (3) Official representatives of foreign governments who are 
accredited to the U.S. Government or are en route to or from other 
countries to which accredited, and such firearms and unexpended 
ammunition are taken back out of the territorial limits of the United 
States by such official representatives of foreign governments when 
they leave the United States;
    (4) Officials of foreign governments and distinguished foreign 
visitors who have been so designated by the Department of State, and 
such firearms and unexpended ammunition are taken back out of the 
territorial limits of the United States by such officials of foreign 
governments and distinguished foreign visitors when they leave the 
United States; and
    (5) Foreign law enforcement officers of friendly foreign 
governments entering the United States on official law enforcement 
business, and such firearms and unexpended ammunition are taken back 
out of the territorial limits of the United States by such foreign law 
enforcement officers when they leave the United States.
* * * * *
    Par. 9. Section 178.120 is added to Subpart G to read as follows:


Sec. 178.120  Firearms or ammunition imported by or for a nonimmigrant 
alien.

    (a) Any nonimmigrant alien who completes an ATF Form 6 to import 
firearms or ammunition into the United States, or any licensee who 
completes an ATF Form 6 to import firearms or ammunition for a 
nonimmigrant alien, must attach applicable documentation to the Form 6 
(e.g., a hunting license or permit lawfully issued in the United 
States; waiver) establishing the nonimmigrant alien falls within an 
exception to or has obtained a waiver from the nonimmigrant alien 
prohibition.
    (b) Nonimmigrant aliens importing or bringing firearms or 
ammunition into the United States must provide the United States 
Customs Service with applicable documentation (e.g., a hunting license 
or permit lawfully issued in the United States; waiver) establishing 
the nonimmigrant alien falls within an exception to or has obtained a 
waiver from the nonimmigrant alien prohibition before the firearm or 
ammunition may be imported. This provision applies in all cases, 
whether or not a Form 6 is needed to bring the firearms or ammunition 
into the United States.

(Approved by the Office of Management and Budget under control 
number 1512-0570)

    Par. 10. Section 178.124 is amended by removing ``whether the 
transferee is a citizen of the United States;'' in paragraph (c)(1) and 
adding in its place ``the transferee's country of citizenship; the 
transferee's INS-issued alien number or admission number;''; by 
removing ``and alien registration number (if applicable)'' in paragraph 
(c)(2); by redesignating paragraph (c)(3)(iii) as paragraph (c)(3)(iv); 
by adding new paragraph (c)(3)(iii); and by revising the parenthetical 
text at the end of the section to read as follows:

[[Page 5427]]

Sec. 178.124  Firearms transaction record.

* * * * *
    (c) * * *
    (3) * * *
    (iii) Must, in the case of a transferee who is a nonimmigrant alien 
who states that he or she falls within an exception to, or has a waiver 
from, the nonimmigrant alien prohibition, have the transferee present 
applicable documentation establishing the exception or waiver, note on 
the Form 4473 the type of documentation provided, and attach a copy of 
the documentation to the Form 4473.
* * * * *
(Paragraph (c) approved by the Office of Management and Budget under 
control numbers 1512-0544, 1512-0129, and 1512-0570; paragraph (f) 
approved by the Office of Management and Budget under control number 
1512-0130; all other recordkeeping approved by the Office of 
Management and Budget under control number 1512-0129)

    Signed: January 15, 2002.
Bradley A. Buckles,
Director.
    Approved: January 15, 2002.
Timonthy E. Skud,
Acting Deputy Assistant Secretary, (Regulatory, Tariff and Trade 
Enforcement).
[FR Doc. 02-2714 Filed 2-1-02; 8:45 am]
BILLING CODE 4810-31-P



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