STATE OF NEW YORK
        ________________________________________________________________________

                                          2844

                               2021-2022 Regular Sessions

                    IN SENATE

                                    January 26, 2021
                                       ___________

        Introduced  by Sen. KAVANAGH -- read twice and ordered printed, and when
          printed to be committed to the Committee on Finance

        AN ACT to amend the executive law, the  general  business  law  and  the
          penal law, in relation to the point of contact for conducting national
          instant  criminal  background  checks;  and to amend the state finance
          law, in relation to the creation of the background check fund

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section 1. The executive law is amended by adding a new section 228 to
     2  read as follows:
     3    §  228.  National  instant criminal background checks. The division is
     4  hereby authorized and directed to serve as a state point of contact  for
     5  implementation  of  18 U.S.C. sec.  922 (t), all federal regulations and
     6  applicable guidelines adopted pursuant thereto, and the national instant
     7  criminal background check system.
     8    1. The division shall report the name,  date  of  birth  and  physical
     9  description  of any person prohibited from possessing a firearm pursuant
    10  to 18 USC 922(g) or (n) to  the  national  instant  criminal  background
    11  check system index, denied persons files.
    12    2.    The  superintendent  shall promulgate a plan to coordinate back-
    13  ground checks for firearm  purchases and any person, firm or corporation
    14  that sells, delivers or otherwise transfers any  firearm  shall  contact
    15  the  state  police in order to complete the background checks in compli-
    16  ance with federal and state law, including  NICS,  in  New  York  state.
    17  Following  implementation of such plan, no application or record of sale
    18  shall be completed for the purchase  or  transfer  of  a  firearm  by  a
    19  licensed  dealer  without  first  contacting the state police. Such plan
    20  shall include, but shall not be limited to the following features:
    21    (a) The superintendent of the New York State  Police  shall  create  a
    22  centralized  bureau  within  the New York State Police department with a
    23  contact center unit that handles all background  checks and maintains an

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01973-01-1

        S. 2844                             2

     1  appeals unit. Staff may include but is not  limited  to:  bureau  chief,
     2  supervisors,  managers,  different  levels  of  administrative analysts,
     3  appeals specialists and administrative personnel.  The  New  York  State
     4  Police  shall  employ  and  train  such  personnel  to    administer the
     5  provisions of this section.
     6    (b) Procedures for carrying out the duties under this section, includ-
     7  ing at a minimum:
     8    i. that the bureau shall be open for business from 9 a.m.  to  9  p.m.
     9  every  calendar day except for Christmas, Thanksgiving and the fourth of
    10  July, to complete background checks; and
    11    ii. during hours of operation, all phone lines and databases shall  be
    12  operational.
    13    (c)  The superintendent shall set up an automated phone system and web
    14  based application system, in order that the bureau shall provide a toll-
    15  free telephone  number  and/or  web-based  application  option  for  any
    16  person, firm or corporation seeking a background check in order to sell,
    17  deliver  or  otherwise transfer a firearm, that is operational every day
    18  that the office is open for business for the purpose  of  responding  to
    19  requests in accordance with this section.
    20    (d)  i.  Upon  receipt of a background check request, personnel should
    21  check all relevant federal and state databases and records, in order  to
    22  return a result as efficiently as possible.
    23    ii.  In  completing  an  instant  background check, the New York State
    24  Police shall create and maintain an online  automated  check  system  to
    25  search through in accordance with federal and state law. The superinten-
    26  dent  may  create  and  maintain  additional databases of information as
    27  needed to complete background checks.
    28    (e) i. Each person, firm or corporation that sells any firearms  shall
    29  pay  a  fee  that is   imposed by the bureau for performing a background
    30  check.  Such fee will be collected electronically and shall be allocated
    31  to the background check fund established  pursuant  to  section  ninety-
    32  nine-ii of the state finance law. The amount of the fee shall not exceed
    33  the  total amount of direct and indirect costs incurred by the bureau in
    34  performing the background check.
    35    ii. The bureau shall transmit all moneys collected  pursuant  to  this
    36  paragraph  to  the  state  comptroller, who shall credit the same to the
    37  background check fund.
    38    iii. On January fifteenth of each  calendar  year,  the  bureau  shall
    39  report to the joint budget committee concerning:
    40    a.  The  number  of employees used by the bureau in the preceding year
    41  for the  purpose  of  performing  background  checks  pursuant  to  this
    42  section; and
    43    b.  the  calculations  used to determine the amount of the fee imposed
    44  pursuant to this subdivision.
    45    iv. If a person, firm or corporation that sells firearms  demonstrates
    46  hardship  in  electronic  payment, then such person, firm or corporation
    47  can arrange to be invoiced and paid by check  and  regular  mail.  If  a
    48  person,  firm  or corporation that sells firearms does not remit payment
    49  within forty-five days, service shall be cut off.
    50    (f) Upon establishment of such plan, the superintendent  shall  notify
    51  each  person,  firm  or corporation holding a permit to sell firearms of
    52  the change in law as well as the following means to be used to apply for
    53  background checks:
    54    i. any person, firm or corporation that sells, delivers  or  otherwise
    55  transfers firearms must obtain a completed ATF 4473 form from the poten-
    56  tial  buyer  or  transferee including name, date of birth, gender, race,

        S. 2844                             3

     1  social security number, or other identification numbers of  such  poten-
     2  tial   buyer or transferee and must have inspected proper identification
     3  including an identification containing a  photograph  of  the  potential
     4  buyer  or  transferee. Information from the form can then be utilized in
     5  application for a background check through a toll-free telephone line or
     6  web-based application.
     7    ii. it is unlawful for any person, in connection with the sale, acqui-
     8  sition or attempted  acquisition of a firearm from  any  transferor,  to
     9  willfully  make  any  false,  fictitious oral or written statement or to
    10  furnish or exhibit any false, fictitious, or misrepresented  identifica-
    11  tion that is  intended or likely to deceive such transferor with respect
    12  to any fact material to the lawfulness  of the sale or other disposition
    13  of  such firearm under federal or state law. Any person who violates the
    14  provisions of this subparagraph shall be guilty of a class  A  misdemea-
    15  nor.
    16    3.  Any  applicant  shall  have  thirty days to appeal the denial of a
    17  background check, using a form established by  the  superintendent.  The
    18  division  shall research the background check and provide such applicant
    19  a reason for a denial. Upon receipt of the reason for denial, the appel-
    20  lant may appeal to the attorney general.
    21    § 2. Subdivision 2 of section 898 of  the  general  business  law,  as
    22  added by chapter 129 of the laws of 2019, is amended to read as follows:
    23    2.  Before  any sale, exchange or disposal pursuant to this article, a
    24  national instant criminal background check must be completed by a dealer
    25  who [consents] shall contact the division of  state  police  to  conduct
    26  such  check[,  and  upon  completion  of  such  background  check, shall
    27  complete a document, the form of which shall be approved by  the  super-
    28  intendent  of state police, that identifies and confirms that such check
    29  was performed]. Before a dealer who [consents] has contacted  the  divi-
    30  sion  of  state police to conduct a national instant criminal background
    31  check delivers a firearm, rifle or shotgun to  any  person,  either  (a)
    32  NICS  shall  have  issued  a  "proceed" response [to the dealer], or (b)
    33  thirty calendar days shall  have  elapsed  since  the  date  the  dealer
    34  contacted the division of state police to contact the NICS to initiate a
    35  national instant criminal background check and NICS has not notified the
    36  [dealer]  division  of  state  police  that the transfer of the firearm,
    37  rifle or shotgun to such person should be denied.
    38    § 3. Paragraph (c) of subdivision 1 of  section  896  of  the  general
    39  business law, as added by chapter 189 of the laws of 2000, is amended to
    40  read as follows:
    41    (c)  coordinate with the division of state police to provide access at
    42  the gun show to [a firearm dealer licensed  under  federal  law  who  is
    43  authorized  to]  perform  a  national  instant criminal background check
    44  [where the seller or transferor of a firearm, rifle or  shotgun  is  not
    45  authorized  to  conduct such a check by (i) requiring firearm exhibitors
    46  who are firearm dealers licensed under federal law and who  are  author-
    47  ized  to conduct a national instant criminal background check to provide
    48  such a check at cost or (ii) designating a specific location at the  gun
    49  show where a firearm dealer licensed under federal law who is authorized
    50  to  conduct a national instant criminal background check will be present
    51  to perform such a check at cost] prior to any firearm sale or  transfer.
    52  Any  firearm  dealer  licensed under federal law who [performs] contacts
    53  the division of state police to  perform  a  national  instant  criminal
    54  background  check pursuant to this paragraph shall provide the seller or
    55  transferor of the firearm, rifle or shotgun with a copy  of  the  United
    56  States  Department  of Treasury, Bureau of Alcohol, Tobacco and Firearms

        S. 2844                             4

     1  Form ATF F 4473 and such dealer shall maintain such form and  make  such
     2  form  available  for inspection by law enforcement agencies for a period
     3  of ten years thereafter.
     4    §  4.  Subdivision  6  of section 400.03 of the penal law, as added by
     5  chapter 1 of the laws of 2013, is amended to read as follows:
     6    6. If the superintendent of state  police  certifies  that  background
     7  checks  of  ammunition  purchasers may be conducted through the national
     8  instant criminal background check system, [use  of  that  system  by]  a
     9  dealer  or  seller shall contact the division of state police to conduct
    10  such check which shall be sufficient to satisfy  subdivisions  four  and
    11  five  of  this  section [and such checks shall be conducted through such
    12  system, provided that a record of such transaction shall be forwarded to
    13  the state police in a form determined by the superintendent].
    14    § 5. The penal law is amended by adding a new section 400.06  to  read
    15  as follows:
    16  § 400.06 National instant criminal background checks.
    17    1.  Any  dealer  in  firearms that delivers or otherwise transfers any
    18  firearm shall contact the division of state police to conduct a national
    19  instant criminal background check.
    20    2. Failure to comply with the requirements of this section is a  class
    21  A misdemeanor.
    22    § 6. The state finance law is amended by adding a new section 99-ii to
    23  read as follows:
    24    §  99-ii. Background check fund. 1. There is hereby established in the
    25  joint custody of the state comptroller and commissioner of taxation  and
    26  finance a special fund to be known as the "background check fund".
    27    2.  Such  fund  shall  consist  of  all revenues received by the comp-
    28  troller, pursuant to the provisions of section two hundred  twenty-eight
    29  of  the executive law and all other moneys appropriated thereto from any
    30  other fund or source pursuant to law.  Nothing contained in this section
    31  shall prevent the state from receiving grants, gifts or bequests for the
    32  purposes of the fund as defined in this section and depositing them into
    33  the fund according to law.
    34    3. The moneys of the background check fund, following appropriation by
    35  the legislature, shall be allocated for the direct costs associated with
    36  performing background checks pursuant to   section two  hundred  twenty-
    37  eight of the executive law.
    38    4. The state comptroller may invest any moneys in the background check
    39  fund  not  expended  for the purpose of this section as provided by law.
    40  The state comptroller shall credit any interest and income derived  from
    41  the deposit and investment of moneys in the background check fund to the
    42  background check fund.
    43    5.  (a)  Any unexpended and unencumbered moneys remaining in the back-
    44  ground check fund at the end of a fiscal year shall remain in the  back-
    45  ground check fund and shall not be credited to any other fund.
    46    (b)  To the extent practicable, any such remaining funds shall be used
    47  to reduce the amount of the fee described in subdivision two of  section
    48  two hundred twenty-eight of the executive law.
    49    §  7.  This  act shall take effect on the ninetieth day after it shall
    50  have become a law. Effective immediately, the addition, amendment and/or
    51  repeal of any rule or regulation necessary  for  the  implementation  of
    52  this  act  on its effective date are authorized to be made and completed
    53  on or before such effective date.