S T A T E   O F   N E W   Y O R K
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    S. 2228                                                  A. 5405

                       2009-2010 Regular Sessions

                      S E N A T E - A S S E M B L Y

                            February 13, 2009
                               ___________

IN SENATE -- Introduced by Sen. LAVALLE -- read twice and ordered print-
  ed,  and  when  printed  to be committed to the Committee on Veterans,
  Homeland Security and Military Affairs

IN ASSEMBLY -- Introduced by M. of A. RAMOS -- Multi-Sponsored by --  M.
  of  A.  MARKEY,  ORTIZ  --  read once and referred to the Committee on
  Economic Development, Job Creation, Commerce and Industry

AN ACT to amend the executive law, in  relation  to  providing  for  the
  regulation  of  the sale, use and storage of nitric acid; and to amend
  the penal law, in relation to disseminating material on  the  manufac-
  ture of an explosive

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Legislative intent. The legislature hereby finds that while
there are important uses for substances like nitric acid, it  is  impor-
tant  that  we  safeguard these substances in order to prevent them from
being used to harm both people and property. Nitric acid can be used  to
cause  harmful  explosions and its use carries the ability, if fallen in
the wrong hands, of resulting in massive destruction.
  Currently, the sale of nitric acid is not regulated on an  appropriate
level.  Retailers  are  not  required to check the identification of the
buyers when selling them nitric acid. They  are  also  not  required  to
maintain  records  of  the  sale.  This act would require that retailers
check the identification of buyers purchasing  nitric  acid  and  record
their name and address.
  In  addition,  there are no standard rules or requirements maintaining
the security of nitric acid in academia. While this act does not  hinder
the  important  academic  work  that surrounds the use of nitric acid in
colleges, universities and even high schools, it  would  provide  a  set
standard  ensuring  we  do  our part in not allowing our academic insti-
tutions to become tools for potential terrorists.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07670-01-9
              

S. 2228                             2                            A. 5405

  Finally, while the advent of the internet has  provided  us  countless
benefits,  it  has also increased the threat we face from people looking
to harm Americans, using information widely available on the  web.  This
act  bans websites that provide guides on taking nitric acid and turning
it into explosives.
  S  2. The executive law is amended by adding a new section 716 to read
as follows:
  S 716. NITRIC ACID SECURITY. 1. (A) FOR THE PURPOSES OF THIS  SECTION,
"NITRIC  ACID"  SHALL  INCLUDE NITRIC ACID OR ANY PREPARATION CONTAINING
FREE OR CHEMICALLY UNNEUTRALIZED NITRIC ACID (HN03) IN  A  CONCENTRATION
OF FIVE PER CENTUM OR MORE.
  (B)  THE  PROVISIONS  OF  THIS SECTION SHALL APPLY TO THE RETAIL SALE,
STORAGE AND USE OF NITRIC ACID, NOTWITHSTANDING ANY PROVISION OF SECTION
ONE HUNDRED FORTY-SIX-F OR ARTICLE FOURTEEN-A  OF  THE  AGRICULTURE  AND
MARKETS LAW TO THE CONTRARY.
  2.  (A)  EVERY  PERSON WHO SELLS ANY QUANTITY OF NITRIC ACID AT RETAIL
SHALL RECORD THE DATE OF SALE AND QUANTITY OF  NITRIC  ACID  SOLD  TO  A
PURCHASER,  ALONG WITH THE VALID STATE OR FEDERAL DRIVER LICENSE NUMBER,
OR OTHER PICTURE IDENTIFICATION CARD NUMBER APPROVED FOR PURCHASER IDEN-
TIFICATION BY THE DIRECTOR OF THE STATE OFFICE OF HOMELAND SECURITY,  AS
WELL  AS THE NAME, CURRENT PHYSICAL ADDRESS AND TELEPHONE NUMBER OF SUCH
PURCHASER OF NITRIC ACID.
  (B) SUCH INFORMATION AND  ANY  ADDITIONAL  INFORMATION,  AS  SHALL  BE
DETERMINED  BY THE DIRECTOR, SHALL BE MAINTAINED BY THE RETAIL SELLER OF
NITRIC ACID AT THE PLACE OF SALE OF THE NITRIC ACID FOR A PERIOD OF  NOT
LESS  THAN  THREE  YEARS  IN  A  FORM OR USING A FORMAT DEVELOPED BY THE
DIRECTOR.
  (C) EVERY PERSON WHO SELLS NITRIC ACID AT RETAIL SHALL, IN  COMPLIANCE
WITH  ANY  FEDERAL AND STATE REQUIREMENTS REGARDING THE DISSEMINATION OF
SUCH INFORMATION, PROVIDE THE DIRECTOR, OR ANY OFFICER  OR  EMPLOYEE  OF
THE STATE OFFICE OF HOMELAND SECURITY ACCESS TO SUCH RECORDS.
  3.  NITRIC  ACID,  WHILE  UPON THE PREMISES OF A PERSON ENGAGED IN THE
RETAIL SALE THEREOF, SHALL BE SECURED TO PROVIDE  REASONABLE  PROTECTION
AGAINST  VANDALISM,  THEFT  OR  OTHER  UNAUTHORIZED  ACCESS.  REASONABLE
PROTECTION MAY INCLUDE, BUT NOT BE LIMITED  TO,  ENSURING  THAT  STORAGE
FACILITIES  ARE LOCKED WHEN UNATTENDED, AND INSPECTED DAILY FOR SIGNS OF
ATTEMPTED ENTRY, VANDALISM AND STRUCTURAL INTEGRITY. THE DIRECTOR OF THE
STATE OFFICE OF HOMELAND SECURITY MAY REQUIRE SUCH SECURITY MEASURES FOR
THE STORAGE OF NITRIC ACID AS HE OR SHE SHALL DEEM NECESSARY.
  4. (A) EVERY ELEMENTARY AND SECONDARY SCHOOL, AND EVERY INSTITUTION OF
HIGHER EDUCATION, AS DEFINED IN SUBDIVISION EIGHT OF SECTION TWO OF  THE
EDUCATION  LAW,  WHICH  HAS  NITRIC  ACID  UPON  ITS  PREMISES OR IN ITS
POSSESSION, SHALL SECURE SUCH ACID WHEN IT IS NOT IN  USE  FOR  ACADEMIC
PURPOSES TO PREVENT THE VANDALISM, THEFT OR OTHER UNAUTHORIZED USE THER-
EOF. IN ADDITION, ALL ACADEMIC USES OF NITRIC ACID SHALL BE MONITORED TO
PREVENT  THEFT  AND  UNAUTHORIZED  USES  THEREOF. THE SECURING OF NITRIC
ACID, WHEN NOT IN USE, SHALL INCLUDE, BUT NOT BE LIMITED TO, THE  PLACE-
MENT  OF  ALL  NITRIC  ACID  IN  A STORAGE CONTAINER WHICH IS LOCKED AND
ACCESSIBLE BY MEANS OF A KEY OR SPECIAL COMBINATION MAINTAINED SOLELY BY
THE EMPLOYEE RESPONSIBLE FOR SUCH STORAGE CONTAINER.
  (B) IN THE EVENT ANY QUANTITY OF NITRIC ACID IS TO BE TAKEN  FROM  THE
PREMISES OF ANY SUCH SCHOOL OR INSTITUTION, THE EMPLOYEE RESPONSIBLE FOR
THE  STORAGE OF SUCH ACID SHALL RECORD THE NAME OF THE PERSON TAKING THE
ACID. SUCH RECORDS AND ANY ADDITIONAL INFORMATION, AS  SHALL  BE  DETER-
MINED BY THE DIRECTOR OF THE STATE OFFICE OF HOMELAND SECURITY, SHALL BE
MAINTAINED  FOR A PERIOD OF NOT LESS THAN THREE YEARS IN A FORM OR USING

S. 2228                             3                            A. 5405

A FORMAT DEVELOPED BY THE DIRECTOR. FURTHERMORE, THESE RECORDS SHALL  BE
MADE AVAILABLE TO THE DIRECTOR, AND ANY OFFICER OR EMPLOYEE OF THE STATE
OFFICE OF HOMELAND SECURITY.
  5.  THE  DIRECTOR OF THE STATE OFFICE OF HOMELAND SECURITY MAY, IN HIS
OR HER DISCRETION, PROMULGATE ANY RULES  AND  REGULATIONS  NECESSARY  TO
IMPLEMENT THE PROVISIONS OF THIS SECTION.
  6.  ANY VIOLATION OF THE PROVISIONS OF THIS SECTION SHALL CONSTITUTE A
CLASS A MISDEMEANOR.
  S 3. The penal law is amended by adding a new section 270.40  to  read
as follows:
S 270.40 DISSEMINATING MATERIAL ON THE MANUFACTURE OF AN EXPLOSIVE.
  A  PERSON IS GUILTY OF DISSEMINATING MATERIAL ON THE MANUFACTURE OF AN
EXPLOSIVE WHEN KNOWING THE CHARACTER AND CONTENT  OF  THE  COMMUNICATION
WHICH,  IN  WHOLE OR PART, DESCRIBES OR EXPLAINS THE PROCESS OR MEANS OF
CONSTRUCTING OR MANUFACTURING AN EXPLOSIVE USING NITRIC ACID, HE OR  SHE
INTENTIONALLY  USES  ANY  COMPUTER  COMMUNICATION SYSTEM ALLOWING INPUT,
OUTPUT, EXAMINATION OR TRANSFER OF COMPUTER DATA  OR  COMPUTER  PROGRAMS
FROM ONE COMPUTER TO ANOTHER.
  DISSEMINATING MATERIAL ON THE MANUFACTURE OF AN EXPLOSIVE IS A CLASS D
FELONY.
  S  4.  This  act  shall  take  effect  on  the first of September next
succeeding the date on which it shall have become a law,  provided  that
the  director of the state office of homeland security is authorized and
directed to promulgate any rules and regulations necessary to  implement
the  provisions  of  section two of this act on its effective date on or
before such date.