OMH-39-09-00010-E Certificate of Relief from Disabilities Related to Firearms Possession

9/30/09 N.Y. St. Reg. OMH-39-09-00010-E

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 39

September 30, 2009

RULE MAKING ACTIVITIES

OFFICE OF MENTAL HEALTH

EMERGENCY RULE MAKING

 

I.D No. OMH-39-09-00010-E

Filing No. 1085

Filing Date. Sept. 15, 2009

Effective Date. Sept. 15, 2009

Certificate of Relief from Disabilities Related to Firearms Possession

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

Action taken:

Addition of Part 543 to Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, section 7.09(b) and (j)

Finding of necessity for emergency rule:

Preservation of 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 required that all states certified by June 22, 2009, that they implemented a relief from disabilities program. This rulemaking is meant to continue the emergency which was filed on June 17, 2009.

Subject:

Certificate of Relief from Disabilities Related to Firearms Possession.

Purpose:

To establish an administrative "certificate of relief from disabilities" process pursuant to Federal law.

Text of emergency rule:

A new Part 543 is added to read as follows:

PART 543

CERTIFICATE OF RELIEF FROM DISABILITIES RELATED TO FIREARMS POSSESSION

(Statutory authority: Mental Hygiene Law § 7.09)

§ 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. Sections 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 Articles 9 or 10 of the Mental Hygiene Law, Article 730 or Section 330.20 of the Criminal Procedure Law, Sections 402 or 508 of the Correction Law or Sections 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. 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 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.

§ 543.2 Legal Base.

(a) Section 7.09(b) of the Mental Hygiene Law grants the Commissioner of the Office of Mental Health the power and responsibility to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction.

(b) Section 7.09(j) of the Mental Hygiene Law gives the Commissioner of Mental Health the power and responsibility to establish within the Office of Mental Health an administrative process to permit a person who has been or may be disqualified pursuant to an adjudication under New York State law from possessing a firearm to petition for relief from that disability, and to promulgate regulations for this purpose.

§ 543.3 Applicability.

This Part applies to any 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), due to being committed to a mental institution or adjudicated as having a mental disability, as such terms are defined in this Part and 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.

§ 543.4 Definitions. For the purposes of only this Part:

(a) Adjudicated as having a mental disability or adjudication as having a mental disability means, and shall have the same meaning as the term "adjudicated as a mental defective" is defined in federal regulations at 27 C.F.R. 478.11, a determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease is a danger to himself or to others or lacks the mental capacity to contract or manage his own affairs. Such term includes a finding of insanity by a court in a criminal case; and those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.

(b) Committed to a mental institution means, as such term is defined in federal regulations at 27 C.F.R. 478.11, a formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. Such term includes a commitment to a mental institution involuntarily; commitment for mental defectiveness or mental illness; and commitments for other reasons, such as for drug use, provided, however, that such term does not include a person in a mental institution for observation or a voluntary admission to a mental institution. For purposes of this Part, committed to a mental institution shall include persons who have been involuntarily committed or confined pursuant to Articles 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.

(c) Mental Institution means and includes hospitals, as defined in Section 1.03 of the Mental Hygiene Law, that are licensed or operated by the Office of Mental Health and secure treatment facilities operated by such Office.

(d) Qualified psychiatrist means, as that term is defined in Section 9.01 of the Mental Hygiene Law, a physician licensed to practice medicine in New York state who:

(1) is a diplomate of the American board of psychiatry and neurology or is eligible to be certified by that board; or

(2) is certified by the American osteopathic board of neurology and psychiatry or is eligible to be certified by that board.

§ 543.5 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 subdivision (j) of Section 7.09 of the Mental Hygiene Law and whose records were submitted to the NICS system by the Office of Mental Health, may request administrative review by the Office to have his or her civil rights restored for such limited purpose.

(2) A request for relief shall be made on forms developed by the Office, which shall be available on the Office's public website. 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 has he/she 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?

(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 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 certificate of relief. The information must include, but is not limited to:

(i) true and certified copies of medical records detailing the applicant's psychiatric history, which shall include the records pertaining to the commitment to a mental health facility, or adjudication as having a mental disability (as defined in this Part), which is the subject of the request for relief;

(ii) true and certified copies of medical records from all of the applicant's current treatment providers, if the applicant is receiving treatment;

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

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

(4) The applicant may provide a psychiatric evaluation performed no earlier than 90 calendar days from the date the request for the certificate of relief was submitted to the Office, conducted by a qualified psychiatrist. The evaluation should 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 would be contrary to the public interest.

(5) The Office 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 within 45 calendar days from the date the Office requests the evaluation, unless the Office allows an extension of time.

(6) The request for relief must include an authorization form permitting the Office to obtain and/or review health information from any health, mental health, or alcohol/substance abuse providers with respect to care 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.

(7) 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 the Office. Unless specifically requested by the Office, information provided after receipt by the Office of the initial request for relief will not be considered. Information specifically requested by the Office must be received by the Office 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 consist of a review of all information submitted by the applicant that was required or requested by the Office, in accordance with paragraph (a)(3) of this Section. The person(s) who conducts the review will not be the individual(s) who gathered the evidence for the administrative request for relief.

(2) Failure of the applicant to provide required or requested information may be the sole basis for denial of the certificate of relief.

(3) The scope of the review shall be to determine, from the materials submitted, 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 history;

(v) a summary of the circumstances surrounding the firearms disability imposed by 18 U.S.C. 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) The Office 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. § § 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 Act (Pub. L. 103-159); and

(B) the Office must notify the National Instant Criminal Background Check System (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) the Office 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.

§ 543.6 Records.

The Office of Mental Health, on being made aware that the basis under which a record was made available by the Office to the National Instant Criminal Background Check System 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 the National Instant Criminal Background Check System, 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 a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire December 13, 2009.

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

Joyce Donohue, NYS Office of Mental Health, 44 Holland Avenue, Albany, NY 12229, [phone], email: [e-mail]

Regulatory Impact Statement

1. Statutory Authority: Subdivision (b) of Section 7.09 of the Mental Hygiene Law grants the Commissioner of the Office of Mental Health the authority and responsibility to adopt regulations that are necessary and proper to implement matters under his jurisdiction.

Subdivision (j) of Section 7.09 of the Mental Hygiene Law grants the Commissioner of the Office of Mental Health the power to adopt regulations to establish the relief from disabilities program.

2. Legislative Objectives: 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, as well as Subdivision (j) of Section 7.09 of the Mental Hygiene Law.

3. Needs and Benefits: These regulations will establish within the Office of Mental Health a process whereby a person who has been or may be disqualified pursuant to an adjudication under New York State law, as articulated in Mental Hygiene Law Section 7.09(j), from possessing a firearm to petition for relief from that disability. 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 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. These regulations establish a process for individuals who have been or may be disqualified pursuant to New York law, as articulated in Mental Hygiene Law Section 7.09 (j), from possessing a firearm to petition for relief from disabilities by demonstrating that their gun ownership would not be dangerous to public safety or contrary to public interest. Failure to implement this administrative process could result in loss of future federal funds under the federal legislation.

4. Costs:

(a) Cost to regulated persons: This regulation will impact members of the public who have been or may be disqualified pursuant to an adjudication under New York State law, as articulated in Mental Hygiene Law Section 7.09(j), from possessing a firearm and who choose to petition for relief from that disability. To date, over 100,000 records have been submitted for this purpose, and record submission is ongoing. The Office has no experiential data from which to estimate the number of persons from the variable number of total records submitted who will voluntarily elect to petition for relief, nor is it known to what extent they will undergo costs in obtaining the documentation necessary for the regulatory process. Thus, although there may be some costs incurred by individuals who wish to avail themselves of the certificate of relief process in gathering the required materials, there are no mandatory fees required of applicants, except the cost of retrieving a certified copy of their criminal history information from the New York State Division of Criminal Justice Services and the Federal Bureau of Investigation. There will be no costs to providers regulated by the Office of Mental Health as a result of this regulatory amendment.

(b) Cost to State and local government: There will be no costs to local government. The 2009-2010 enacted State budget has included an appropriation of $272,000 to support the costs associated with the hiring of new employees to implement the administrative program.

5. Paperwork: This rule should not substantially increase the paperwork requirements of regulated parties.

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: The only alternative to this regulatory amendment would be inaction. The development of an administrative relief process is mandated by Section 7.09 of the Mental Hygiene Law. A failure to promulgate these regulations would be contrary to the legislation. Therefore, that alternative was necessarily rejected.

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: The regulatory amendment would be effective immediately upon adoption.

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 is not submitted with this notice because the rulemaking, which serves to establish a "certificate of relief from disabilities" process, will not impose any adverse economic impact on rural areas. The implementation of this 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.

Job Impact Statement

A Job Impact Statement is not submitted with this notice because there will be no adverse impact on jobs and employment opportunities. The rulemaking establishes a certificate of relief from disabilities process. Implementation of this administrative 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.