§ 228 — National instant criminal background checks

§ 228. National instant criminal background checks. 1. (a) The\ndivision is hereby authorized and directed to serve as a state point of\ncontact for implementation of 18 U.S.C. sec. 922 (t), all federal\nregulations and applicable guidelines adopted pursuant thereto, and the\nnational instant criminal background check system for the purchase of\nfirearms and ammunition.\n (b) Upon receiving a request from a licensed dealer pursuant to\nsection eight hundred ninety-six or eight hundred ninety-eight of the\ngeneral business law, the division shall initiate a background check by\n(i) contacting the National Instant Criminal Background Check System\n(NICS) or its successor to initiate a national instant criminal\nbackground check, and (ii) consulting the statewide firearms license and\nrecords database established pursuant to subdivision three of this\nsection, in order to determine if the purchaser is a person described in\nsections 400.00 and 400.03 of the penal law, or is prohibited by state\nor federal law from possessing, receiving, owning, or purchasing a\nfirearm or ammunition.\n 2. (a) The division shall report the name, date of birth and physical\ndescription of any person prohibited from possessing a firearm pursuant\nto 18 U.S.C. sec. 922(g) or (n) to the national instant criminal\nbackground check system index, denied persons files.\n (b) Information provided pursuant to this section shall remain\nprivileged and confidential, and shall not be disclosed, except for the\npurpose of enforcing federal or state law regarding the purchase of\nfirearms or ammunition.\n (c) Any background check conducted by the division, or delegated\nauthority, of any applicant for a permit, firearms identification card\nlicense, ammunition sale, or registration, in accordance with the\nrequirements of section 400.00 of the penal law, shall not be considered\na public record and shall not be disclosed to any person not authorized\nby law or this chapter to have access to such background check,\nincluding the applicant. Any application for a permit, firearms\nidentification card, ammunition sale, or license, and any document\nreflecting the issuance or denial of such permit, firearms\nidentification card, or license, and any permit, firearms identification\ncard, license, certification, certificate, form of register, or\nregistration statement, maintained by any state or municipal\ngovernmental agency, shall not be considered a public record and shall\nnot be disclosed to any person not authorized by law to have access to\nsuch documentation, including the applicant, except on the request of\npersons acting in their governmental capacities for purposes of the\nadministration of justice.\n 3. The division shall create and maintain a statewide firearms license\nand records database which shall contain records held by the division\nand any records that it is authorized to request from the division of\ncriminal justice services, office of court administration, New York\nstate department of health, New York state office of mental health, and\nother local entities. Such database shall be used for the certification\nand recertification of firearm permits under section 400.02 of the penal\nlaw, assault weapon registration under subdivision sixteen-a of section\n400.00 of the penal law, and ammunition sales under section 400.03 of\nthe penal law. Such database shall also be used to initiate a national\ninstant criminal background check pursuant to subdivision one of this\nsection upon request from a licensed dealer. The division may create and\nmaintain additional databases as needed to complete background checks\npursuant to the requirements of this section.\n 4. The superintendent shall promulgate a plan to coordinate background\nchecks for firearm and ammunition purchases pursuant to this section and\nto require any person, firm or corporation that sells, delivers or\notherwise transfers any firearm or ammunition to submit a request to the\ndivision in order to complete the background checks in compliance with\nfederal and state law, including the National Instant Criminal\nBackground Check System (NICS), in New York state. Such plan shall\ninclude, but shall not be limited to, the following features:\n (a) The creation of a centralized bureau within the division to\nreceive and process all background check requests, which shall include a\ncontact center unit and an appeals unit. Staff may include but is not\nlimited to: bureau chief, supervisors, managers, different levels of\nadministrative analysts, appeals specialists and administrative\npersonnel. The division shall employ and train such personnel to\nadminister the provisions of this section.\n (b) Procedures for carrying out the duties under this section,\nincluding hours of operation.\n (c) An automated phone system and web-based application system,\nincluding a toll-free telephone number and/or web-based application\noption for any licensed dealer requesting a background check in order to\nsell, deliver or otherwise transfer a firearm which shall be operational\nevery day that the bureau is open for business for the purpose of\nresponding to requests in accordance with this section.\n 5. (a) Each licensed dealer that submits a request for a national\ninstant criminal background check pursuant to this section shall pay a\nfee imposed by the bureau for performing such background check. Such fee\nshall be allocated to the background check fund established pursuant to\nsection ninety-nine-pp of the state finance law. The amount of the fee\nshall not exceed the total amount of direct and indirect costs incurred\nby the bureau in performing such background check.\n (b) The bureau shall transmit all moneys collected pursuant to this\nparagraph to the state comptroller, who shall credit the same to the\nbackground check fund.\n 6. On January fifteenth of each calendar year, the bureau shall submit\na report to the governor, the temporary president of the senate, and the\nspeaker of the assembly concerning:\n a. the number of employees used by the bureau in the preceding year\nfor the purpose of performing background checks pursuant to this\nsection;\n b. the number of background check requests received and processed\nduring the preceding calendar year, including the number of "proceed"\nresponses and the number and reasons for denials;\n c. the calculations used to determine the amount of the fee imposed\npursuant to this paragraph.\n 7. Within sixty days of the effective date of this section, the\nsuperintendent shall notify each licensed dealer holding a permit to\nsell firearms of the requirement to submit a request to the division to\ninitiate a background check pursuant to this section as well as the\nfollowing means to be used to apply for background checks:\n i. any person, firm or corporation that sells, delivers or otherwise\ntransfers firearms shall obtain a completed ATF 4473 form from the\npotential buyer or transferee including name, date of birth, gender,\nrace, social security number, or other identification numbers of such\npotential buyer or transferee and shall have inspected proper\nidentification including an identification containing a photograph of\nthe potential buyer or transferee.\n ii. it shall be unlawful for any person, in connection with the sale,\nacquisition or attempted acquisition of a firearm from any transferor,\nto willfully make any false, fictitious oral or written statement or to\nfurnish or exhibit any false, fictitious, or misrepresented\nidentification that is intended or likely to deceive such transferor\nwith respect to any fact material to the lawfulness of the sale or other\ndisposition of such firearm under federal or state law. Any person who\nviolates the provisions of this subparagraph shall be guilty of a class\nA misdemeanor.\n 8. Any potential buyer or transferee shall have thirty days to appeal\nthe denial of a background check, using a form established by the\nsuperintendent. Upon receipt of an appeal, the division shall provide\nsuch applicant a reason for a denial within thirty days. Upon receipt of\nthe reason for denial, the appellant may appeal to the attorney general.\n