MRD-40-09-00004-E Appeals Process for Certain Disqualified Individuals with Developmental Disabilities Who Wish to Purchase or Possess a Firearm

10/7/09 N.Y. St. Reg. MRD-40-09-00004-E

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 40

October 07, 2009

RULE MAKING ACTIVITIES

OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES

EMERGENCY RULE MAKING

 

I.D No. MRD-40-09-00004-E

Filing No. 1108

Filing Date. Sept. 18, 2009

Effective Date. Sept. 19, 2009

Appeals Process for Certain Disqualified Individuals with Developmental Disabilities Who Wish to Purchase or Possess a Firearm

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Addition of Part 643 to Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 13.09(b) and (f)

Finding of necessity for emergency rule:

Preservation of public health, public safety and general welfare.

Specific reasons underlying the finding of necessity:

The NICS Improvement Amendments Act of 2007 (Public Law 110-180, Section 105, enacted on January 8, 2008) requires that states have a relief from disabilities program that meets the requirements of the Act. In order to apply for the grant funding provided for under the NICS Improvement Amendments Act of 2007, the U.S. Department of Justice has required that all states must certify by June 22, 2009, that the state has implemented a relief from disabilities program. OMRDD filed emergency regulations on that date which are now expiring. New emergency regulations are necessary to continue the relief for disabilities program until such point that permanent regulations can be adopted.

The receipt of the grant money will enable New York State to more expeditiously perform the administrative functions necessary to assemble relevant records and transmit information about disqualified individuals to NICS. These disqualified individuals are then added to the list of persons who are not able to legally purchase or possess firearms anywhere in the United States. The underlying assumption of the NICS Improvement Amendments Act of 2007 is that keeping firearms out of the hands of these potentially dangerous individuals prevents violence and enhances the public health, safety and welfare.

Subject:

Appeals process for certain disqualified individuals with developmental disabilities who wish to purchase or possess a firearm.

Purpose:

To establish a process so a person who is disqualified from being able to purchase a firearm can appeal the disqualification.

Text of emergency rule:

14 NYCRR is amended by the addition of a new Part 643 as follows:

PART 643

CERTIFICATE OF RELIEF FROM DISABILITIES (PROHIBITIONS) RELATED TO FIREARMS POSSESSION

(Statutory authority: Mental Hygiene Law Sections 13.09(b) and 13.09(f))

Section 643.1 Background and intent.

(a) The federal Brady Handgun Violence Prevention Act of 1993, 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 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. Sections 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 of Mental Retardation and Developmental Disabilities (OMRDD), 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 OMRDD is authorized by law to collect, retain, modify, or transmit, include information identifying persons who have been involuntarily committed to an OMRDD facility pursuant to Article 15 of the Mental Hygiene Law, Article 730 or Section 330.20 of the Criminal Procedure Law, or Sections 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 OMRDD 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 OMRDD 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. Sections 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 OMRDD 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.

Section 643.2 Applicability.

This Part applies to any person who has been or may be disqualified from possessing a firearm pursuant to 18 USC Sections 922 (d)(4) and (g)(4), due to being involuntarily committed to an OMRDD facility pursuant to Article 15 of the Mental Hygiene Law, or Article 730 or Section 330.20 of the Criminal Procedure Law, or Sections 322.2 or 353.4 of the Family Court Act and whose records were submitted to NICS by OMRDD in accordance with Section 13.09(f) of the Mental Hygiene Law.

Section 643.3 Process.

(a) Request for relief.

(1) An individual who has been or may be disqualified from attempting to purchase or otherwise possess a firearm in accordance with the provisions of Section 13.09(f) of the Mental Hygiene Law and whose records were submitted to NICS by OMRDD, may request administrative review by OMRDD to have his or her civil rights restored for such limited purpose.

(2) A request for relief shall be made on forms developed by OMRDD, which shall be available on OMRDD’s public web site. At a minimum, the forms shall require the applicant to answer all of the following questions under penalty of perjury:

(i) Is the applicant under indictment for, or ever been convicted of, a crime punishable by imprisonment for more than one year?

(ii) Is the applicant a fugitive from justice?

(iii) Is the applicant an unlawful user of, or is addicted to, any controlled substance?

(iv) Has the applicant been adjudicated as having a mental disability or committed to a mental institution, including but not limited to involuntary commitment to an OMRDD facility (pursuant to Article 15 of the Mental Hygiene Law, or Article 730 or Section 330.20 of the Criminal Procedure Law, or Sections 322.2 or 353.4 of the Family Court Act)? (Note: “adjudicated as having a mental disability” has the same meaning as the term “adjudicated as a mental defective” is defined in 27 C.F.R. 478.11. “Committed to a mental institution” has the same meaning as the term is defined in the cited federal regulation.)

(v) Is the applicant an illegal alien, or has he/she been admitted to the United States under a nonimmigrant visa?

(vi) Was the applicant discharged from the U.S. Armed Forces under dishonorable conditions?

(vii) Has the applicant renounced U.S. citizenship?

(viii) Is the applicant subject or ever been subject to a court order restraining him or her from harassing, stalking, or threatening an intimate partner or child?

(ix) Has the applicant been convicted in any court of a misdemeanor crime of domestic violence?

(3) In addition to the forms provided, the applicant shall be required to submit further information in support of the request for relief. The information must include, but is not limited to:

(i) true and certified copies of medical/clinical records detailing the applicant’s psychiatric and/or intellectual or developmental disability history, which shall include records pertaining to the involuntary commitment to an OMRDD facility, which is the subject of the request for relief;

(ii) true and certified copies of medical/clinical records from all of the applicant’s current treatment and service providers, if the applicant is receiving treatment or services;

(iii) a true and certified copy of all criminal history information maintained on file at the New York State Division of Criminal Justice Services and the Federal Bureau of Investigation pertaining to the applicant, or a copy of a response from such Division and Bureau indicating that there is no criminal history information on file;

(iv) notarized letters of reference from current and past employers, family members or personal friends, which may include affidavits from character witnesses or the applicant, or other character evidence;

(v) any further information specifically requested by OMRDD. Such documents requested by OMRDD shall be certified copies of original documents.

(4) The applicant must provide a psychiatric evaluation performed no earlier than 90 calendar days from the date the request for relief was submitted to OMRDD, conducted by a qualified psychiatrist as defined in Section 9.01 of the Mental Hygiene Law. The evaluation must include an opinion as to whether or not the applicant’s record and reputation are such that the applicant will or will not be likely to act in a manner dangerous to public safety and whether or not the granting of the relief to allow for firearms possession would be contrary to the public interest.

(5) The applicant must also provide an evaluation by a licensed psychologist which includes current IQ and adaptive behavior assessment.

(6) OMRDD reserves the right to request that the applicant undergo a clinical evaluation and risk assessment as determined by the Commissioner or his/her designee(s). The evaluation must be performed 45 calendar days from the date OMRDD requests the evaluation, unless OMRDD allows an extension of time.

(7) The request for relief must include an authorization form permitting OMRDD to obtain and/or review health and other information from any health, mental health, alcohol/substance abuse providers, or providers of services for persons with developmental disabilities with respect to care and services provided prior to the date of the application, for the purposes of reviewing the application for relief. Such authorization must comply with applicable federal or state laws governing the privacy of health information, including but not limited to, as relevant, 45 CFR Parts 160 and 164, 42 CFR Part 2, Public Health Law Section 17 and Article 27-F, and Mental Hygiene Law Section 33.13.

(8) It is the responsibility of the applicant to ensure that all required information accompanies the request for relief at the time it is submitted to OMRDD. Unless specifically requested by OMRDD, information provided after receipt by OMRDD of the initial request for relief will not be considered. Information specifically requested by OMRDD must be received by OMRDD within 60 days of the date requested in order for it to be considered. Failure to meet this time frame will result in a denial of the certificate of relief.

(b) Scope of review.

(1) The Commissioner or his/her designee(s) shall perform an administrative review of the request for relief, which shall include a review of all information submitted by the applicant in accordance with subdivision (a) of this Section. The person(s) who conducts the review will not be the individual(s) who gathered the information for the administrative request for relief.

(3) The scope of the review shall be to determine whether the applicant will not be likely to act in a manner dangerous to public safety and granting the relief will not be contrary to the public interest.

(c) Decision.

(1) After review of the application in accordance with subdivision (b) of this section, the Commissioner or his/her designee(s) shall prepare a written determination, which shall include:

(i) a summary of the information utilized in reaching the decision;

(ii) a summary of the applicant’s criminal history (if any);

(iii) a summary of the psychiatric evaluation prepared to support the request for relief (if any);

(iv) a summary of the applicant’s mental health and intellectual/developmental disabilities history;

(v) a summary of the circumstances surrounding the firearms disability imposed by 18 USC Sections 922(d)(4) and (g)(4);

(vi) an opinion as to whether or not the applicant’s record and reputation are such that the applicant will or will not be likely to act in a manner dangerous to public safety and whether or not the granting of the relief would be contrary to the public interest; and

(vii) a determination as to whether or not the relief is granted.

(2) OMRDD shall provide a copy of the written determination to the applicant without undue delay. In addition to a copy of the written determination:

(i) if the relief is granted:

(a) the applicant must be provided with written notice that while the certificate of relief removes the disability from Federal firearms prohibitions (disabilities) imposed under 18 U.S.C. Sections 922(d)(4) and (g)(4), the determination does not otherwise qualify the applicant to purchase or possess a firearm, and does not fulfill the requirements of the background check pursuant to the Brady Handgun Violence Prevention Act of 1993 (Pub. L. 103-159), as amended; and

(b) OMRDD must notify NICS that the certificate of relief has been granted; or

(ii) if the relief is denied:

(a) the applicant must be notified of the right to have the decision reviewed in accordance with applicable State law; and

(b) OMRDD must further advise that the applicant cannot apply again for a request for relief until a year after the date of the written determination to deny the relief requested.

Section 643.4 Records.

OMRDD, on being made aware that the basis under which a record was made available by OMRDD to NICS does not apply or no longer applies, shall, as soon as practicable:

(a) update, correct, modify or remove the record from any database that the Federal or State government maintains and makes available to NICS, consistent with the rules pertaining to that database; and

(b) notify the United States Attorney General that such basis no longer applies so that the record system in which the record is maintained is kept up to date.

This notice is intended

to serve only as an emergency adoption, to be valid for 90 days or less. This rule expires December 16, 2009.

Text of rule and any required statements and analyses may be obtained from:

Barbara Brundage, Director of RAU, Office of Mental Retardation & Developmental Disabilities, 44 Holland Avenue, Albany, New York 12229, [phone], email: [e-mail]

Additional matter required by statute:

Pursuant to the requirements of SEQRA and 14 NYCRR Part 602, OMRDD has determined that the action described herein will have no effect on the environment, and an E.I.S is not needed.

Regulatory Impact Statement

1. Statutory authority:

a. Subdivision (b) of Section 13.09 of the Mental Hygiene Law grants the Commissioner of the Office of Mental Retardation and Developmental Disabilities the authority and responsibility to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction.

b. Subdivision (f) of Section 13.09 of the Mental Hygiene Law requires the Commissioner of the Office of Mental Retardation and Developmental Disabilities to adopt regulations to establish the relief from disabilities program.

2. Legislative objectives: The regulations which are required by New York State Mental Hygiene Law further the legislative objectives embodied in subdivisions 13.09(b) and 13.09(f) of the New York State Mental Hygiene Law by establishing a process within OMRDD so that a person who is disqualified from being able to purchase a firearm can appeal the disqualification, in conformance with the statutory requirement.

3. Needs and benefits: Pursuant to federal and state law, OMRDD is required to submit information about individuals who have been involuntarily committed to an OMRDD facility to the National Instant Criminal Background Check System (NICS). These individuals will be disqualified (prohibited) from purchasing or possessing a firearm. Federal and state law also requires that OMRDD promulgate regulations to establish a process for these individuals to appeal this disqualification.

The implementation of this administrative “certificate of relief from disabilities” process is required under the federal NICS Improvement Amendments Act of 2007 and Public Law 110-180, Section 105, which amended the federal Brady Handgun Violence Prevention Act of 1993 to establish NICS, and by Chapter 491 of the Laws of 2008. The process established by these regulations applies to individuals who have been involuntarily committed to an OMRDD facility and whose names were provided by OMRDD to NICS. These individuals can petition for relief from disabilities by demonstrating that their gun ownership would not be dangerous to public safety or contrary to public interest through the provision of the required information and documentation to OMRDD.

Failure to implement this administrative “certificate of relief from disabilities” process could result in loss of future federal funds under the federal legislation.

4. Costs:

(a) Cost to regulated persons: Individuals who are disqualified can choose to apply to OMRDD if they want to be able to purchase or possess a firearm. These costs are therefore OPTIONAL. The regulations require applicants to submit the results of an evaluation by a psychologist and a psychiatrist. OMRDD estimates that if the individuals privately pay for these evaluations they will cost approximately $800 - $1,200 for the psychologist and approximately $300 for the psychiatrist. Obtaining the required criminal history information will cost $50 for the NYS Division of Criminal Justice Services check and $18 for the Federal Bureau of Investigation check. The individual may also incur costs which are difficult to quantify in obtaining required medical records and records from treatment and service providers.

(b) Cost to State and local government: There will be no new costs incurred by the State and local government as a result of the emergency regulations. OMRDD anticipates that few, if any, individuals will apply for relief from disabilities under these regulations, and will process any applications received within existing resources.

5. Paperwork: As noted above, disqualified individuals can choose to apply to OMRDD and therefore the associated paperwork is OPTIONAL. The applicant is required to complete a form developed by OMRDD and submit a variety of records and documents. These include copies of medical/clinical records pertaining to the involuntary commitment to an OMRDD facility, copies of medical/clinical records from all of the applicant’s current treatment and service providers, copies of all criminal history information maintained on file at the New York State Division of Criminal Justice Services, notarized letters of recommendation, and copies of any further information requested by OMRDD.

6. Local government mandates: This regulatory amendment will not result in any additional imposition of duties or responsibilities upon county, city, town, village, school or fire districts.

7. Duplication: There are no duplicate, overlapping or conflicting mandates which may affect this rule.

8. Alternative approaches: OMRDD considered forgoing the promulgation of these regulations as an emergency at this time and using the regular rulemaking process, which would result in the promulgation of regulations at a later date. However, New York State would not be eligible to receive federal grant monies if it did not have a process in place within the required timeframe.

9. Federal standards: The regulatory amendment does not exceed any minimum standards of the federal government for the same or similar subject areas.

10. Compliance schedule: Similar emergency regulations were effective on June 22, 2009.

Regulatory Flexibility Analysis

The rulemaking serves to establish a “certificate of relief from disabilities” process as required under the federal NICS Improvement Amendments Act of 2007 and Public Law 110-180, Section 105, which amended the federal Brady Handgun Violence Prevention Act of 1993. There will be no adverse economic impact on small businesses or local governments; therefore, a regulatory flexibility analysis is not submitted with this notice.

Rural Area Flexibility Analysis

A Rural Area Flexibility Analysis for the proposed amendments has not been submitted. OMRDD has determined that the amendments will not impose any adverse impact, reporting, recordkeeping, or other compliance requirements on public or private entities in rural areas. The amendments establish a process so a person who is disqualified from being able to purchase a firearm can appeal the disqualification.

Job Impact Statement

A Job Impact Statement is not submitted because the amendment will not present an adverse impact on existing jobs or employment opportunities. The amendments establish a process so a person who is disqualified from being able to purchase a firearm can appeal the disqualification.