N.Y. Executive Law § 228: National instant criminal background checks

§ 228. National instant criminal background checks. 1. (a) The

division is hereby authorized and directed to serve as a state point of

contact for implementation of 18 U.S.C. sec. 922 (t), all federal

regulations and applicable guidelines adopted pursuant thereto, and the

national instant criminal background check system for the purchase of

firearms and ammunition.

(b) Upon receiving a request from a licensed dealer pursuant to

section eight hundred ninety-six or eight hundred ninety-eight of the

general business law, the division shall initiate a background check by

(i) contacting the National Instant Criminal Background Check System

(NICS) or its successor to initiate a national instant criminal

background check, and (ii) consulting the statewide firearms license and

records database established pursuant to subdivision three of this

section, in order to determine if the purchaser is a person described in

sections 400.00 and 400.03 of the penal law, or is prohibited by state

or federal law from possessing, receiving, owning, or purchasing a

firearm or ammunition.

2. (a) The division shall report the name, date of birth and physical

description of any person prohibited from possessing a firearm pursuant

to 18 U.S.C. sec. 922(g) or (n) to the national instant criminal

background check system index, denied persons files.

(b) Information provided pursuant to this section shall remain

privileged and confidential, and shall not be disclosed, except for the

purpose of enforcing federal or state law regarding the purchase of

firearms or ammunition.

(c) Any background check conducted by the division, or delegated

authority, of any applicant for a permit, firearms identification card

license, ammunition sale, or registration, in accordance with the

requirements of section 400.00 of the penal law, shall not be considered

a public record and shall not be disclosed to any person not authorized

by law or this chapter to have access to such background check,

including the applicant. Any application for a permit, firearms

identification card, ammunition sale, or license, and any document

reflecting the issuance or denial of such permit, firearms

identification card, or license, and any permit, firearms identification

card, license, certification, certificate, form of register, or

registration statement, maintained by any state or municipal

governmental agency, shall not be considered a public record and shall

not be disclosed to any person not authorized by law to have access to

such documentation, including the applicant, except on the request of

persons acting in their governmental capacities for purposes of the

administration of justice.

3. The division shall create and maintain a statewide firearms license

and records database which shall contain records held by the division

and any records that it is authorized to request from the division of

criminal justice services, office of court administration, New York

state department of health, New York state office of mental health, and

other local entities. Such database shall be used for the certification

and recertification of firearm permits under section 400.02 of the penal

law, assault weapon registration under subdivision sixteen-a of section

400.00 of the penal law, and ammunition sales under section 400.03 of

the penal law. Such database shall also be used to initiate a national

instant criminal background check pursuant to subdivision one of this

section upon request from a licensed dealer. The division may create and

maintain additional databases as needed to complete background checks

pursuant to the requirements of this section.

4. The superintendent shall promulgate a plan to coordinate background

checks for firearm and ammunition purchases pursuant to this section and

to require any person, firm or corporation that sells, delivers or

otherwise transfers any firearm or ammunition to submit a request to the

division in order to complete the background checks in compliance with

federal and state law, including the National Instant Criminal

Background Check System (NICS), in New York state. Such plan shall

include, but shall not be limited to, the following features:

(a) The creation of a centralized bureau within the division to

receive and process all background check requests, which shall include a

contact center unit and an appeals unit. Staff may include but is not

limited to: bureau chief, supervisors, managers, different levels of

administrative analysts, appeals specialists and administrative

personnel. The division shall employ and train such personnel to

administer the provisions of this section.

(b) Procedures for carrying out the duties under this section,

including hours of operation.

(c) An automated phone system and web-based application system,

including a toll-free telephone number and/or web-based application

option for any licensed dealer requesting a background check in order to

sell, deliver or otherwise transfer a firearm which shall be operational

every day that the bureau is open for business for the purpose of

responding to requests in accordance with this section.

5. (a) Each licensed dealer that submits a request for a national

instant criminal background check pursuant to this section shall pay a

fee imposed by the bureau for performing such background check. Such fee

shall be allocated to the background check fund established pursuant to

section ninety-nine-pp of the state finance law. The amount of the fee

shall not exceed the total amount of direct and indirect costs incurred

by the bureau in performing such background check.

(b) The bureau shall transmit all moneys collected pursuant to this

paragraph to the state comptroller, who shall credit the same to the

background check fund.

6. On January fifteenth of each calendar year, the bureau shall submit

a report to the governor, the temporary president of the senate, and the

speaker of the assembly concerning:

a. the number of employees used by the bureau in the preceding year

for the purpose of performing background checks pursuant to this

section;

b. the number of background check requests received and processed

during the preceding calendar year, including the number of "proceed"

responses and the number and reasons for denials;

c. the calculations used to determine the amount of the fee imposed

pursuant to this paragraph.

7. Within sixty days of the effective date of this section, the

superintendent shall notify each licensed dealer holding a permit to

sell firearms of the requirement to submit a request to the division to

initiate a background check pursuant to this section as well as the

following means to be used to apply for background checks:

i. any person, firm or corporation that sells, delivers or otherwise

transfers firearms shall obtain a completed ATF 4473 form from the

potential buyer or transferee including name, date of birth, gender,

race, social security number, or other identification numbers of such

potential buyer or transferee and shall have inspected proper

identification including an identification containing a photograph of

the potential buyer or transferee.

ii. it shall be unlawful for any person, in connection with the sale,

acquisition or attempted acquisition of a firearm from any transferor,

to willfully make any false, fictitious oral or written statement or to

furnish or exhibit any false, fictitious, or misrepresented

identification that is intended or likely to deceive such transferor

with respect to any fact material to the lawfulness of the sale or other

disposition of such firearm under federal or state law. Any person who

violates the provisions of this subparagraph shall be guilty of a class

A misdemeanor.

8. Any potential buyer or transferee shall have thirty days to appeal

the denial of a background check, using a form established by the

superintendent. Upon receipt of an appeal, the division shall provide

such applicant a reason for a denial within thirty days. Upon receipt of

the reason for denial, the appellant may appeal to the attorney general.