41F regulation change frustates PA gun dealers

A regulation change finalized last year requiring federal background checks for some transfers of suppressors leaves Pennsylvania gun dealers unsure of how to comply with the law.

“Many PA FFL dealers are frustrated about it,” said Kim Stolfer, president of Firearm Owners Against Crime, a state-based political action committee, in an email to Guns.com last week. “The vagaries of notification combined with the sketchy information trickling out has left dealers more than a little confused and bewildered at the potential legal minefield.”

Last year, the Bureau of Alcohol, Tobacco, Firearms and Explosives approved rule 41F, which redefines “responsible persons” under the National Firearms Act to include trusts, partnerships, associations, companies, or corporations — meaning anyone receiving NFA firearms on behalf of these legal entities must submit photographs, fingerprints and an NFA Responsible Person Questionnaire to the federal government before a transfer can occur. As part of the NFA approval process, responsible persons in the the legal entity must undergo a background check through the National Instant Criminal Background Check System.

If someone other than the identified “responsible persons” should retrieve the suppressor or other NFA firearms from a federally licensed dealer on behalf of the entity, the dealer must conduct a NICS check on that indnividual.

The rule change raises two significant challenges for Pennsylvania gun dealers, Stolfer said.

First, Pennsylvania is one of 13 point-of-contact states. Background check applications aren’t processed through NICS, rather a state database called the Pennsylvania Instant Criminal Check System, managed by the state police.

Stolfer said dealers don’t have access or authorization to perform NICS background checks because of the existing state system — and even if they did, state law doesn’t require checks for suppressors.

Suppressors, however, are defined under the Gun Control Act of 1968, meaning federal background check requirements still apply.

“The murky area is that PA is a POC state meaning the administrative agency is required to abide by ‘all’ federal laws and regulations,” Stolfer said. “The state police splitting hairs like this has many dealers highly upset and frustrated.”

Pennsylvania-based attorney Adam Kraut, of the Prince Law Offices, said in 2015 the then-proposed rule change would force gun dealers to “abuse the system.”

“It would seem that ATF is directing at least one FFL to perform a background check that I can find no legal requirement to perform,” he wrote in a blog post in March 2015. “To my knowledge there has not been an industry wide newsletter or open letter directing that FFLs perform such a check. And even if there were, there is nothing I can find in the law to suggest that it is actually required.”

In a letter dated April 6 provided to Guns.com, the ATF advised Pennsylvania dealers to apply for “limited NICS access for the purpose of conducting suppressor background checks only.”

Kraut told Guns.com Tuesday the letter renders his 2015 statement inaccurate.

“It would be accurate to say that the licensees are now on notice that they must contact NICS to transfer a silencer to an individual who is a member of a legal entity (trust, corporation, LLC, partnership, etc.) which has had an NFA firearm transferred to it,” he said. “As such, they’d be required to register with NICS to do so.”

Stolfer said in an email to Guns.com last month the ATF letter appears to be an afterthought.

“To the extent there is a silver lining of any sort, this is another reason to move to NICS (and get all the records moved to NICS) to make sure that someone can’t just walk in to a Pa. gun dealer and buy a suppressor without an appropriate background check,” he said. “The part I don’t like about that argument is that it assumes that a suppressor is somehow nefarious in and of itself, but I guess we have always treated them, and guns, that way.”