N.Y. Comp. Codes R. & Regs. tit. 14 § 543.1

Current through Register Vol. 46, No. 43, October 23, 2024

Section 543.1 - Background and intent

(a) The Federal Brady Handgun Violence Prevention Act of 1993 (Brady Act) prohibits any person from selling or otherwise disposing of any firearm or ammunition to any person who has been involuntarily "committed to a mental institution" (18 U.S.C. section 922 [d][4]) and further prohibits any person who has been involuntarily "committed to a mental institution" from shipping or transporting in interstate or foreign commerce, or possessing in or affecting commerce, any firearm or ammunition; or receiving any firearm or ammunition which has been shipped or transported in interstate or foreign commerce (18 U.S.C. section 922 [g][4]).

(b) Under the Federal NICS Improvement Amendments Act of 2007, Public Law 110-180, section 105, the Brady Act was amended to establish the National Instant Criminal Background Check System (NICS). Upon being contacted by a Federal firearm licensee prior to transferring a firearm to an unlicensed person, NICS will provide information on whether a person is prohibited from receiving or possessing a firearm under State or Federal law. NICS contains records concerning certain events, such as criminal convictions and mental health adjudications and findings that may disqualify a person from purchasing a firearm. The 2007 amendments also require the establishment of a "certificate of relief from disabilities" process to permit a person who has been or may be disqualified from possessing a firearm pursuant to 18 U.S.C. section 922(d)(4) and (g)(4) to petition for relief from that disability.

(c) Section 7.09 of the Mental Hygiene Law authorizes the Office of Mental Health to collect, retain, modify or transmit data or records for inclusion in the NICS system for the purpose of responding to NICS queries regarding attempts to purchase or otherwise take possession of firearms, as defined in 18 U.S.C. 921(a)(3). The records which the Office of Mental Health is authorized by law to collect, retain, modify, or transmit are expressly limited to persons who have been involuntarily committed pursuant to article 9 or 10 of the Mental Hygiene Law, article 730 or section 330.20 of the Criminal Procedure Law, section 402 or 508 of the Correction Law or section 322.2 or 353.4 of the Family Court Act. Mental Hygiene Law section 7.09 also requires the office to promulgate regulations establishing a "certificate of relief from disabilities" process for those persons whose records were provided to the Division of Criminal Justice Services or the Federal Bureau of Investigation by the office pursuant to Mental Hygiene Law section 7.09, and who have been or may be disqualified from possessing a firearm pursuant to 18 U.S.C. section 922(d)(4) and (g)(4).

(d) The purpose of these regulations is to establish the required administrative "certificate of relief from disabilities" process for persons whose records were submitted to the NICS system by the Office of Mental Health in accordance with section 7.09 of the Mental Hygiene Law. (The Office of Mental Health has the authority under section 7.09 of the Mental Hygiene Law to transmit the records either directly to the NICS system or through the Division of Criminal Justice Services.) Such relief will be based on a determination of whether the person's record and reputation are such that he/she will not be likely to act in a manner dangerous to public safety and where granting the relief would not be contrary to the public interest.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 543.1