There are some significant changes due to take effect early next month in the Empire State.
New York is switching from a jurisdiction in which the Federal Bureau of Investigation (FBI) conducts firearms-related NICS background checks, to one in which the New York State Police will conduct all firearm and ammunition-related background checks using both NICS and a pending “statewide license and record database.” This shift is occurring due to legislation enacted last year, NY Exec. Law § 228, which authorizes the state police to act as the “point of contact” for background checks required under “18 U.S.C. sec. 922(t), all federal regulations and applicable guidelines adopted pursuant thereto, and the national instant criminal background check system for the purchase of firearms and ammunition.”
That law directs the Superintendent of State Police to establish a “centralized bureau” for firearm and ammunition background checks. NY Exec. Law § 228(7) specifies that, within 60 days of July 15, 2023, the superintendent must “notify each licensed dealer holding a permit to sell firearms” to submit requests for background checks to the state police, which appears to be an indirect way of setting a deadline of September 13 (the date the 60-day period expires) for the system to be operational.
Section § 228(5) allows the state to charge fees for background checks using this state database, which fees cannot “exceed the total amount of direct and indirect costs incurred by the bureau in performing such background check.” One source indicates that these fees will add an additional $9 (firearms) and $2.50 (ammunition) to purchases and transfers.
The shift to a state “point of contact” jurisdiction occurs in tandem with a second change, a related but separate development under a state law that mandates background checks for ammunition transfers by “sellers of ammunition.” This background check requirement dates back to the SAFE Act of 2013 and requires that a state database for ammunition background checks be used (federal law, 28 C.F.R. 25.6, limits the use of the NICS system for checks “only in connection with a proposed firearm transfer as required by the Brady Act. FFLs are strictly prohibited from initiating a NICS background check for any other purpose”).
This ammunition background check requirement comes with a statutory precondition and grace period before it may take effect. Specifically, the state police superintendent must first “certify” that “the statewide license and record database established pursuant to [NY Penal Law § 400.02] and the statewide license and record database established for ammunition sales are operational,” followed by a 30-day period after which the ammunition background check requirement is in effect. In a classic example of the New York’s legislature’s signature style of “pass gun control laws first, figure out if they work later,” it became apparent once the SAFE Act was passed that the ammunition background check mandate was unachievable at the time. The-then police superintendent advised that his agency lacked the technology to implement the requirement and had “no idea when ammunition background checks… will begin across the state.”
A further complication is that the entire ammunition background check database project was placed in abeyance due to a 2015 memorandum of understanding (MOU). The agreement, entered into by the Cuomo Administration and then-Republican Senate Majority Leader John Flanagan, promised that no state money would be spent on implementing the ammunition background check database until a cost plan had been approved by the parties. The MOU further stipulated that any certification of the database as operational would not be made until the parties had approved a plan on its implementation. Last year, however, Governor Kathy Hochul indicated she was aware of the “old MOU that was signed related to ammunition sales after laws were passed the decade ago, it was an administration document between the prior administration and the Senate Republicans,” but decided to ignore it – “we are literally tearing it up and New York will now require and conduct background checks for all ammunition purchases.”
There is no indication on either the state police or the governor’s websites that the certification of the statewide license and record database as operational has occurred. However, the NY State Police website currently advises that the “background check requirements imposed on all retail sellers of ammunition are scheduled to take effect on September 13, 2023.”