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Legally Armed: V20N6

By Teresa G. Ficaretta, Esq. & Johanna Reeves, Esq.

Importing Firearms Into the United States--the Basics

Federal law governing the importation of firearms into the United States is complex, with three applicable statutes: the Gun Control Act of 1968 (GCA), the National Firearms Act (NFA), and the Arms Export Control Act (AECA). This article provides an overview of all three and the process for federal firearms licensees (FFLs) and unlicensed persons to follow to lawfully import a firearm.

I. The Gun Control Act

The GCA was enacted in 1968 to regulate interstate and foreign commerce in firearms and is administered and enforced by the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). The statute’s import provisions apply to firearms, ammunition, and barrels and apply to all importations, whether temporary or permanent. “Importation” is defined in regulations as bringing a firearm into the U.S. (defined as the 50 states, D.C., Puerto Rico, and other possessions of the U.S.). Persons engaged in the business of importing firearms must have a license as an importer under the GCA. Licensed dealers, licensed manufacturers, and licensed collectors may occasionally import firearms without obtaining an importer’s license. Entry of firearms into a Foreign Trade Zone is not an importation.

A. General Prohibitions - and Lots of Exceptions

The GCA generally prohibits the importation of three types of weapons: (1) firearms subject to the NFA; (2) nonsporting firearms; and (3) surplus military firearms. We will discuss NFA firearms and nonsporting firearms later in this article. Surplus military firearms are any firearm which has ever been possessed by a regular or irregular military force.

Like most statutory schemes, the GCA provides exceptions to the general prohibitions. Consequently, the following types of importations are specifically authorized under the statute:

Firearms imported for scientific or research purposes - ATF requires specific information about the type of scientific testing or research that will be conducted. Nonsporting firearms may be imported under this exception.
Curio or Relic firearms - Even if firearms are surplus military firearms, they may be imported if they are curio or relic, but only by a licensed importer. If the firearms are handguns, they must satisfy the requirements of ATF’s Factoring Criteria, ATF Form 4590.
U.S. goods returned - Even if the firearms are nonsporting or surplus military, if the person who exported them is the same person importing the firearms, they may be lawfully imported. U.S. Customs and Border Protection must be provided with appropriate documentary evidence, such as a completed Customs Form 4457, bill of sale, or Form 4473.
Imports for federal, state, or local government agencies - must be accompanied with a purchase order from the agency.

B. Sporting Firearms Are Importable

Firearms generally recognized as particularly suitable for or readily adaptable to sporting purposes may be lawfully imported. The tests ATF uses for determining whether a particular firearm is sporting are as follows:

Handguns - Pistols and revolvers must meet size, weight, and safety requirements of ATF Factoring Criteria, ATF Form 4590.
Rifles - ATF reports published in 1989 and 1998 set forth ATF’s position on nonsporting rifles. The reports are available on ATF’s website.
Shotguns – An ATF report published in 2012 sets forth the features for nonsporting shotguns. The report is available on ATF’s website.

An in-depth discussion of the sporting purposes test may be found in our article published in Vol. 19, No 4, titled “The Sporting Purposes Test for Imported Firearms.” This is online at smallarmsreview.com

C. Special Rules for Machine guns

No discussion of the GCA’s import provisions is complete without mentioning the special rules that apply to machineguns pursuant to 18 U.S.C. § 922(o). This provision of the GCA prohibits the transfer and possession of any machinegun made after 1986. The statute has exceptions for federal, state, and local government agencies, thus an application to import a machinegun for federal, state or local government customer must be supported with an agency purchase order. Licensed importers often import and store machineguns in a Foreign Trade Zone or Customs Bonded Warehouse, and ATF allows these imports without a purchase order so that FFLs may have weapons readily available for law enforcement agencies.

ATF regulations also provide a method for FFLs who pay the Special Occupational Tax to acquire machineguns as sales samples for demonstration to police departments and other law enforcement agencies. Importers who wish to import machineguns to be used as sales samples must submit a letter from a law enforcement agency expressing a need for a demonstration of a particular machinegun. ATF generally limits FFLs to one sample of each particular model of machinegun. A sample of an acceptable format for the demonstration letter is included in the NFA Handbook, available on ATF’s website.

II. THE NATIONAL FIREARMS ACT

The NFA, administered and enforced by ATF, requires all firearms subject to its provisions to be registered by their manufacturer, importer, or maker. Transfers of NFA firearms must be approved in advance by ATF, and exports must be accomplished through an approved ATF Form 9. Firearms regulated by the NFA include machineguns, silencers, short barrel rifles, short barrel shotguns, destructive devices, and other concealable firearms known as “Any Other Weapons.” Most NFA firearms are also subject to the GCA. If you are unsure whether a particular firearm falls within the purview of the NFA, contact ATF’s Firearms and Ammunition Technology Division (fire_tech@atf.gov) for assistance.

The term “import” is defined in the NFA’s implementing regulations as the bringing of firearms within the territory of the United States. As with the GCA, the statute makes no distinction between permanent and temporary importations. Even if a firearm is imported for only a few minutes and then leaves the territory of the U.S., it has been imported under the NFA.

A. General Prohibitions - and a Few Exceptions

Because the NFA imposes more stringent controls on firearms subject to the statute, it is not surprising that the purposes for which NFA firearms may be lawfully imported are limited. NFA firearms are prohibited from importation for general commercial sale and may only be imported for the following purposes:

Official use by federal, state, or local government agencies (purchase order required);
Scientific or research purposes; & Testing
or use as a model by a qualified licensee.

The above authorized imports must be supplemented by another mention of section 922(o) of the GCA. Remember the statute authorizes transfer and possession of machineguns only to federal, state, or local government agencies. Regulations authorize importation of machineguns as sales samples, but there is no statutory exception for scientific or research purposes. Accordingly, ATF will only approve an import permit for machineguns with a purchase order from a federal, state, or local government agency or as a sales sample with the appropriate documentation.

Implementing regulations also include a U.S. goods returned provision that is similar to that under the GCA. Regulations provide that if the NFA firearms were properly registered to the person who is bringing the firearms back into the U.S., the firearms may be lawfully imported. Accordingly, even if the stringent import criteria outlined above cannot be satisfied, ATF will approve an import application for an NFA firearm that meets these requirements.

B. ATF Rul. 2004-2

In 2004, ATF issued a ruling that recognized the limitations of the NFA for licensees who need to temporarily import firearms for purposes of repair, inspection, and recalibration. ATF Rul. 2004-2 makes it clear that even if licensees import firearms pursuant to a Department of State temporary import license, the importation must still comply with the NFA. Significantly, the NFA has no exceptions to the import provisions for repair. Accordingly, ATF used its variance authority to recognize an alternate procedure for importers who have a need to temporarily import NFA firearms for repair. The ruling established the following requirements:

The importer must be properly licensed under the GCA and have paid special (occupational) tax under the NFA;
The importation must be accomplished through issuance of a Department of State temporary import license or qualify for a license exemption;
Within 15 days of release of the firearms from Customs custody, the importer must file an ATF Form 2 with ATF to register the firearms under the NFA;
The firearms must be securely stored while in the U.S.; and The firearms must be exported within four years of importation.

Although not specifically required in the ruling, it is recommended that the exportation be accomplished with an approved ATF Form 9, so that the National Firearms Registration and Transfer Record is appropriately annotated.

Importers who utilize the provisions of ATF Rul. 2004-2 to temporarily import NFA firearms for repair should be aware that ATF Rul. 2014-1 modified, in part, the requirements of ATF Rul. 2004-2. The 2014 ruling held that machineguns temporarily imported pursuant to ATF Rul. 2004-2 may not be lawfully transferred to another FFL without specific written authorization from a federal, state, or local government agency. We discussed ATF Rul. 2014-1 in detail in Vol. 19, No 1, “ATF Rul. 2014-1 Impacts Manufacture and Import of Machineguns,” and refer interested readers to that article for more information.

III. The Arms Export Control Act

The AECA gives the President broad authority to control the export and import of defense articles in the interest of the foreign policy and security of the United States. A delegation order gives the Attorney General authority over permanent imports of defense articles and the Secretary of State authority over temporary imports and exports. The Attorney General delegated his authority over permanent imports to the Director, ATF.

The AECA requires the registration of manufacturers, exporters, importers, and brokers. Importers register with ATF by filing ATF Form 4587. The registration can be accomplished by completing the form on www.pay.gov and using a credit or debit card for payment.

“Defense articles” subject to permanent import controls are enumerated on the U.S. Munitions Import List. Most firearms, including those to .50 caliber, are included in Category I of the list. Sporting shotguns are notably absent from the list - but all shotguns are still regulated under the GCA and thus require an import permit from ATF. Firearms over .50 caliber, including howitzers, mortars, and recoilless rifles, are regulated under Category II of the list.

A. Forgings, Castings and “80 Percent Receivers”

ATF regulations make it clear that firearms in a partially completed state are subject to control under the AECA. This means that forgings and castings, including so-called “80 percent receivers,” must be imported pursuant to a Form 6 import permit issued by ATF. It is a common misperception among FFLs and firearms enthusiasts that these unfinished items are not regulated. If imported without an approved import permit such items are subject to seizure and forfeiture and importers are subject to criminal penalties. If you are unsure whether a particular unfinished item is subject to regulation under the AECA, contact ATF’s Firearms and Ammunition Technology Division for guidance at fire_tech@atf.gov.

B. U.S. Origin Firearms

ATF regulations provide that no military defense article of U.S. manufacture may be imported if the article was furnished to a foreign government under a foreign assistance or foreign military sales program of the U.S. If the firearms are U.S. origin military firearms, ATF and the Department of State presume the firearms were provided under such a program unless there is evidence to the contrary. Regulations authorize approval of import applications for curio or relic firearms (e.g., those over 50 years of age) with written retransfer authorization from the Department of State. State will consider retransfer requests only from foreign governments, and there is information on its website on submitting such requests. Prior to 2013 State authorized retransfers of M1 Garands, M1 Carbines, 1911 pistols, and other U.S. origin firearms for importation and commercial sale using this process. However, in 2013 the Administration announced a policy of denying requests to bring “military-grade” firearms into the U.S. for commercial sale. Until such time as that policy changes, it is clear the Department of State will not be approving retransfers for U.S. origin firearms.

C. Import Restrictions Applicable to Certain Countries

As stated above, the primary purpose of the AECA is to give the President the authority to prohibit imports and exports of defense articles when such transactions are contrary to the foreign policy or security of the United States. The best example of the President’s use of this authority is the prohibitions on imports originating in certain proscribed or embargoed countries. Proscribed countries are those with respect to which the United States does not maintain normal diplomatic relations or state sponsors of terrorism. Examples of such countries include Afghanistan, Belarus, Cuba, Iran, Iraq, Libya, Mongolia, North Korea, Sudan, Syria, and Vietnam. Examples of countries subject to arms embargoes include Burma and China.

Foreign policy changes frequently, and importers should contact ATF’s Firearms and Explosives Imports Branch with questions about import policies for a particular country.

D. Imports from Russia and Other Former Soviet States

ATF’s regulations provide special rules that apply to the importation of firearms from or originating in Russia, Ukraine, and other states of the former Soviet Union. Only firearms on a positive list will be approved for importation into the United States. The regulations in 27 C.F.R. 447.52(b) provide a partial list of the firearms, which was supplemented by additional firearms in 2004. Importers may contact ATF’s Firearms and Explosives Imports Branch to obtain the complete list of firearms.

IV. OTHER IMPORT RESTRICTIONS

Importers should be aware of the economic and trade sanctions implemented by the Treasury Department’s Office of Foreign Assets Control (https://www.treasury.gov/about/organizational-structure/offices/Pages/Office-of-Foreign-Assets-Control.aspx). Such sanctions, which may be country-specific or entity-specific, could impact a proposed import if the transaction involves a targeted country, regime or entity. It is therefore important that importers conduct careful due diligence on all parties and countries involved in the transaction to avoid violating an OFAC
sanctions program.

V. IMPORTATION OF FIREARMS BY UNLICENSED PERSONS

Unlicensed persons are generally prohibited from importing firearms into the U.S., because the GCA makes it unlawful to transport into or receive in your state of residence any firearms obtained outside that state. For this reason, unlicensed persons must arrange for the importation of a firearm by a federal firearms licensee in your State of residence. The firearm may be imported and sold to you by a licensed importer or licensed distributor whose place of business is outside your state of residence, but the firearm must be shipped to an FFL in your state of residence. The local FFL will then have you complete a Form 4473, conduct a NICS check, and transfer the imported firearm to you.

VI. IMPORTATION BY MEMBERS OF THE U.S. ARMED FORCES

Members of the U.S. Armed Forces may lawfully import firearms into the U.S. if they are on active duty outside the U.S. or have been on active duty outside the U.S. within the 60-day period immediately preceding the importation. Firearms to be imported by returning servicemen must be sporting firearms, not surplus military, and intended for the personal use of that person. The importation is accomplished by applying for an import permit on ATF Form 6-Part II.

If ATF approves the application, the serviceman or his or her representative must present a copy of the Form 6 and a copy of Form 6A-Release and Receipt of Imported Firearms to Customs and Border Protection. It is not necessary for the serviceman to channel the firearms through an FFL in his or her state of residence, as is the case with other unlicensed persons who acquire imported firearms.

VII. IMPORTATION OF FIREARMS BY FFLS

FFLs importing firearms into the U.S. must present the approved Form 6 and the Form 6A to Customs and Border Protection to secure release of the firearms. Customs will forward one copy of the Form 6A to ATF, and the importer must forward the second copy of the form to ATF completed with the serial numbers of the firearms imported. Approved Form 6 permits are valid for 2 years and may be used multiple times until the quantity of firearms authorized has been reached.

Current processing time for Form 6 import applications is 6 weeks. However, submission of applications via ATF’s eForms system results in processing time of 3-4 weeks. ATF strongly encourages importers to utilize the eForms system.

VIII. CONCLUSION

ATF’s publication “Firearms Commerce in the United States-Annual Statistical Update 2014” indicates that in 2013 there were over 5 million firearms imported into the United States. it is encouraging to see how active this segment of industry continues to be, despite the regulatory challenges. As firearms enthusiasts grow their collections, we anticipate the market for imported firearms will grow as well.

***The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.

About the authors

Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (www.reevesdola.com). For more than ten years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls.

Teresa Ficaretta is one of the country’s foremost experts on ATF regulations under the Gun Control Act, the National Firearms Act, the Arms Export Control Act and federal explosives laws. Before joining Reeves & Dola in 2013, Teresa served as legal counsel to ATF for 26 years, followed by two years as Deputy Assistant Director in Enforcement Programs and Services. They can be reached at 202-683-4200.

This article first appeared in Small Arms Review V20N6 (July 2016)
and was posted online on May 20, 2016

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