Earlier this month, the Department of Justice announced that the Federal Bureau of Investigation (FBI) had proposed two rules to fully implement important provisions of the Bipartisan Safer Communities Act (BSCA): enhanced background checks for gun buyers under the age of 21, and making it easier for gun makers, importers, and dealers — Federal Firearms Licensees (FFLs) — to run background checks on their employees.
Enacted in June 2022 after the Buffalo and Uvalde mass shootings were committed by 18-year-olds armed with AR-15s, the BSCA also established grants for states to implement crisis intervention programs, including extreme risk protection order (ERPO) programs; provided funding for community violence intervention programs; created penalties for gun trafficking and straw purchasing; and more narrowly defined what it means for people to be “engaged in the business” of dealing in firearms, thus requiring a license.
The firearm handler rule
The FBI’s proposed “Firearm Handlers Rule” would allow Federal Firearms Licensees (FFLs) — gun manufacturers, importers, and dealers — to use the National Instant Criminal Background Check System (NICS) to voluntarily conduct free background checks on certain prospective and current employees to ensure that they can legally possess firearms and ammunition, as directed by Congress in the BSCA. Federal regulations currently prohibit FFLs from using NICS for anything other than firearm transactions.
As the rule states, “FFLs may inadvertently employ prohibited persons, who would then have access to firearms through their employment duties and who may be able to use their positions to engage in illegal trafficking of firearms or to otherwise illegally possess or use firearms.” These voluntary NICS background checks can thus serve as “an additional tool for FFLs to help prevent illegal firearms trafficking and ensure prohibited persons do not obtain firearms.”
Under the rule, FFLs would only be able to run NICS background checks on “employees who have or are likely to have access to firearms or ammunition or, for licensed manufacturers, the materials or tools to make them.” The rule establishes that FFLs can run these background checks once every 12 months unless they have reason to believe an employee may have become prohibited from possessing a firearm or ammunition due to, say, a criminal charge.
the under-21 rule
The FBI’s other proposal, the “Under-21 Rule,” helps implement the enhanced background check procedures that the BSCA now requires for prospective gun buyers under the age of 21. The BSCA requires that the FBI contact certain state and local entities to see if any juvenile records disqualify an under-21 purchaser from possessing the firearm. According to the Department of Justice, such procedures have “denied nearly 1,000 transactions solely because of enhanced outreach” since late 2022.
The Under-21 Rule would require that the FBI, immediately after conducting a NICS background check on the customer, reach out to their state’s 1) criminal history repository or juvenile justice information center, 2) the state custodian of mental health records, and 3) the local law enforcement agency to see if any records exist to prohibit the transaction. To do that, the Under-21 Rule would require FFLs to submit the customer’s full residential address to NICS as part of the background check process. Currently, FFLs only have to provide a customer’s state of residence before running a NICS background check.
The Under-21 Rule would also require that FFLs provide a customer’s full residential address to NICS if the transaction is not immediately approved. That way, the FBI can more easily notify law enforcement if the sale is denied, as required by the NICS Denial Notification Act, enacted in March 2022, giving police a chance to investigate the circumstances.
will the nssf support the background checks it advocated for?
The BSCA has been very successful at keeping guns out of the wrong hands. But the gun industry’s trade association, the National Shooting Sports Foundation (NSSF), ultimately withheld support for the bipartisan legislation — despite being “involved in setting the deal’s general parameters.”
So far, the NSSF has not commented publicly on the FBI’s proposed rules. But earlier this year, Larry Keane, the NSSF’s senior vice president and general counsel, accused the Biden administration of being “quick to implement portions of the [BSCA] that benefit their gun control agenda but seem to be ignoring other parts of the law that would make it easier for firearm retailers to do business,” including allowing FFLs to run NICS background checks on employees. As Keane noted, “That’s a no-nonsense part of the law upon which all sides can agree.”
More recently, Keane repeated his call to implement this BSCA provision, claiming it was an “industry-led effort,” and that it was “beyond aggravating that the Biden-Harris administration continues to stonewall even the common sense solutions that everyone agrees on.”
Time will tell if the NSSF ends up supporting the proposed rules or denouncing them, as it has with the ATF’s ghost gun, arm brace, and “engaged in the business” rules.