N.Y. Comp. Codes R. & Regs. tit. 14 § 643.1

Current through Register Vol. 46, No. 50, December 11, 2024

Section 643.1 - Background and intent

(a) The Federal Brady Handgun Violence Prevention Act of 1993 (Brady Act), as amended, among other provisions, 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 (18 U.S.C. section 922et seq.) was amended to mandate that states must report certain persons disqualified from receiving or possessing firearms to 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 on both the Federal and State levels 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 13.09(f) of the Mental Hygiene Law authorizes the Office for People With Developmental Disabilities (OPWDD), in cooperation with the NYS Unified Court System and other State agencies, to collect, retain, modify or transmit data or records for inclusion in NICS 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 OPWDD is authorized by law to collect, retain, modify, or transmit, include information identifying persons who have been involuntarily committed to an OPWDD facility pursuant to article 15 of the Mental Hygiene Law, article 730 or section 330.20 of the Criminal Procedure Law, or section 322.2 or 353.4 of the Family Court Act. In accordance with the above-referenced Federal law, Mental Hygiene Law, section 13.09 (f) also requires OPWDD 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 OPWDD pursuant to Mental Hygiene Law, section 13.09(f), and who have been or may be disqualified from purchasing and/or 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 NICS by OPWDD in accordance with section 13.09(f) of the Mental Hygiene Law. 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 § 643.1

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016