N.J.A.C. 13:54-1.2 Definitions

COMMENT: Commenters object to the proposed amendments in this section of the chapter dealing with the definition of semi-automatic shotguns, which would be considered assault weapons. The commenters hold that currently, semi-auto shotguns that have one, and only one, of the listed features are legal in New Jersey. The proposed amendment decreases the allowable features from "at least two" to "one or more." In addition, the proposed amendment will render shotguns illegal if they have the ability to accept a detachable magazine, with no number of rounds specified. Under existing N.J.S.A. 2C:39-1.w(3), a semi-automatic shotgun may possess a detachable magazine that does not hold more than six rounds. There are numerous shotguns that are legal under the existing definition that would become illegal with the adoption of the proposed changes. This would have the unintended consequence of creating felons out of people who were previously following the law.

RESPONSE: The agency is proposing a change to address the issue identified by the commenters. The definition of semi-automatic shotgun will remain unchanged from the existing rule, in the number of features permitted to one. The change on adoption will specify the number of rounds permitted to be no more than six in either a fixed or detachable magazine which will mirror N.J.S.A. 2C:39-1.w(3).
 
N.J.A.C. 13:54-1.17

COMMENT: This proposed new rule by the Superintendent is a blatant attempt to subvert the statutory law and the Courts, which have ruled contrary to the Superintendent's new rule to allow issuing agencies to create their own additional forms or request additional information. N.J.S.A. 2C:58-3.f says "There shall be no conditions or requirements added to the form or content of the application, required by the licensing authority for the issuance of a permit or identification card, other than those that are specifically set forth in this chapter." Thus, this new rule is not only unauthorized by statute, but it is directly prohibited by statute. It is therefore ultra vires and unlawful.

RESPONSE: The Division is not proposing in this new rule to allow new forms to be created or make additions to existing forms. The proposed new rule clearly states that all applications and/or forms "shall be promulgated by the Superintendent." The added language allowing the issuing agencies to request additional information was intended to allow for a thorough investigation to determine if the applicant is subjected to any disabilities established in N.J.S.A. 2C:58-3.c. The Division is [page=1299] proposing a substantive change to add language to the new rule to clarify that "additional information" is strictly limited to information contained on the forms and applications promulgated by the Superintendent, and the issuing agency may only ask follow-up questions to clarify and or verify information contained on the forms.
 
N.J.A.C. 13:54-3.2, 3.3(d), and 3.10(d)

COMMENT: The commenters oppose the proposed amendment to N.J.A.C. 13:54-3.2, which would prohibit employees of a retail dealer to have access or be permitted to have access to any firearms or records of the acquisition or disposition of firearms without first obtaining a "retail dealers license." The commenters object to this change because it will prevent employees from handling and selling firearms and from processing paperwork for firearms. Furthermore, the commenters point out the proposed amendment would place the burden on the retail dealer to either run their business alone or force each employee to possess a retail dealer license. The commenters also note N.J.A.C. 13:54-3.3(d) is in direct contradiction with the proposed amended rule. It states that employees cannot access or be allowed to access firearms or records unless such employee has been licensed "by the Superintendent." This rule is in direct contradiction with N.J.A.C. 13:54-3.2 based on the fact that retail dealer licenses are granted by the Superior Court Judge in the county in which the business is located and the employee licenses are issued by the Superintendent. Lastly, the proposed amendment to N.J.A.C. 13:54-3.10(d) also restricts employees from accessing firearms and records without an employee license, in further contradiction of N.J.A.C. 13:54-3.2.

RESPONSE: The Division's motive for the proposed amendments to N.J.A.C. 13:54-3.2, 3.3(d), and 3.10(d), was to augment the security and integrity of firearms transactions and acquisitions recordkeeping. However, the conflict created with the proposed amendment to N.J.A.C. 13:54-3.2, specifically, is noted. Therefore, the Division is proposing a substantive change to N.J.A.C. 13:54-3.2 to clarify the requirement for employees of retail firearms dealers to possess an employee license in order to access to firearms and records of the acquisition and disposition of firearms. The proposed amendments to N.J.A.C. 13:54-3.3(d) and 3.10(d) will remain unchanged.
 
N.J.A.C. 13:54-3.16

COMMENT: Commenters object to the inclusion of language requiring all firearms to be maintained at the licensed premises unless expressly permitted by statutory law or Administrative Code to be temporarily removed as proposed in new N.J.A.C. 13:54-3.16(b). Commenters feel there are too many circumstances not expressly covered by law or the Administrative Code where a licensed dealer may have to remove a firearm from the premises. Commenters hold that as long as the retail dealer remains within the bounds of his or her license, there should be no restrictions requiring "express" permission, which is narrow and inflexible.

RESPONSE: The Division agrees with the commenters and is proposing a substantive change to allow firearms to be temporarily removed from the licensed premises unless expressly prohibited (emphasis added) by any other statutory law or Administrative Code.

COMMENT: N.J.A.C. 13:54-3.16(c) mandates that State of New Jersey Certificate of Eligibility forms be "permanently retained" by former dealers who terminate their retail dealers license. Commenters argue this language is undefined and unreasonably over broad. In addition, commenters opposition is based on the fact that the State does not require registration of rifles and shotguns and there is no statutory requirement for record retention for rifles and shotguns. Lastly, the commenters argued this is an unfair mandate for a former business owner to retain records "forever."

RESPONSE: There is no statutory requirement for these records to be maintained after a retail business closes. A final inspection is completed by the New Jersey State Police Firearms Investigation Unit and the retail license is surrendered. The Division does not take possession of the Certificate of Eligibility forms and has no legal authority to maintain or house the information contained therein. However, the Division recognizes the absence of administrative direction in handling these documents. Therefore, the Division is proposing a substantive change to the proposed new rule to allow the option for destruction of all completed Certificate of Eligibility forms upon termination of a retail firearms dealer's license.