[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 2878 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                S. 2878

            To prevent gun trafficking in the United States.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 11, 2009

Mrs. Gillibrand introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
            To prevent gun trafficking in the United States.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Gun Trafficking Prevention Act of 
2009''.

SEC. 2. FINDINGS.

    Congress finds and declares that--
            (1) in the United States, the black market is the source 
        for guns used in more than 90 percent of gun crimes;
            (2) nearly 90 percent of the guns used in gun crimes in New 
        York City, New York come from other States;
            (3) according to the Federal Bureau of Investigation, in 
        2008, in the United States, \2/3\ of all murders committed 
        resulted from the use of a firearm, and 2,364 people under the 
        age of 22 were murdered with a firearm;
            (4) the Bureau of Alcohol, Tobacco, Firearms and Explosives 
        (in this section referred to as the ``ATF'') crime gun trace 
        reports show that only about 1 percent of licensed firearms 
        arms dealers supply nearly 60 percent of crime gun traces;
            (5) ATF has found that Straw Purchasers are the largest 
        source of guns trafficked into the illegal market;
            (6) then Acting ATF Director Michael J. Sullivan's April 
        19, 2007, testimony to the Senate Appropriations Subcommittee 
        on Commerce, Justice, Science, and Related Agencies, named as 
        ``significant regional, national and international trafficking 
        corridors''--
                    (A) the Southwest Border;
                    (B) the I-95 corridor between Miami and Boston;
                    (C) Northern rural Mississippi to Chicago;
                    (D) Northern Indiana to Chicago;
                    (E) the triangle between Los Angeles, Las Vegas and 
                Phoenix; and
                    (F) Birmingham to Chicago;
            (7) there are approximately 2500 agents, and 600 Industry 
        Operator Investigators (in this section referred to as the 
        ``IOI'') for the 115,000 Federal Firearm Licensees in the 
        United States;
            (8) the average cycle of inspection is 7 to 10 years; and
            (9) ATF needs more resources to prevent guns from falling 
        into the hands of those persons not legally allowed to possess 
        them.

SEC. 3. TRAFFICKING IN FIREARMS.

    (a) In General.--Chapter 44 of title 18, United States Code, is 
amended by inserting at the end the following:
``Sec. 932. Trafficking in firearms
    ``(a) In General.--
            ``(1) Offense.--It shall be unlawful for any person 
        knowingly, regardless of whether anything of value is 
        exchanged--
                    ``(A) to ship, transport, transfer, or otherwise 
                dispose to a person, 2 or more firearms in or affecting 
                interstate or foreign commerce, if the transferor knows 
                or has reasonable cause to believe that such 
                disposition would be in violation of, or would result 
                in a violation of any Federal, State, or local law 
                punishable by a term of imprisonment exceeding 1 year;
                    ``(B) to receive from a person, 2 or more firearms 
                in or affecting interstate or foreign commerce, if the 
                recipient knows or has reasonable cause to believe that 
                such receipt would be in violation of, or would result 
                in a violation of any Federal, State, or local law 
                punishable by a term of imprisonment exceeding 1 year;
                    ``(C) except a licensed importer, licensed 
                manufacturer, or licensed dealer, to make materially 
                false statements to a licensed importer, licensed 
                manufacturer, or licensed dealer, relating to the 
                purchase, receipt, or acquisition from a licensed 
                importer, licensed manufacturer, or licensed dealer of 
                2 or more firearms that have moved in or affected 
                interstate or foreign commerce, for the person, or for 
                or on behalf of any other person; or
                    ``(D) to direct, promote, or facilitate conduct 
                specified in subparagraph (A), (B), or (C).
            ``(2) Penalty.--Any person who violates this section shall 
        be fined under this title, imprisoned not more than 20 years, 
        or both.
            ``(3) Application.--
                    ``(A) Affirmative defense.--It is an affirmative 
                defense to any prosecution for a violation of 
                subparagraph (A) or (B) of paragraph (1) of this 
                subsection or a violation of paragraph (1)(D) of this 
                subsection that relates to conduct specified in 
                subparagraph (A) or (B) of paragraph (1) that the 
                firearm at issue was transferred only after a 
                background check on the actual buyer pursuant to 
                section 922(t) indicated that the actual buyer's 
                receipt of the firearm would not violate section 922 
                (g) or (n) or State law.
                    ``(B) Definitions.--In this subsection--
                            ``(i) the term `term of imprisonment 
                        exceeding 1 year' does not include any offense 
                        classified by such jurisdiction as a 
                        misdemeanor and punishable by a term of 
                        imprisonment of 2 years or less; and
                            ``(ii) the term `actual buyer' means the 
                        individual for whom the firearm is being 
                        purchased, as described in paragraph (1)(C).
                    ``(C) Purchase.--Paragraph (1) shall not apply to a 
                firearm that is--
                            ``(i) lawfully acquired by a person to be 
                        given to another person not prohibited from 
                        possessing a firearm under Federal, State, or 
                        local law as a gift; or
                            ``(ii) lawfully received or otherwise 
                        acquired by a court-appointed trustee, 
                        receiver, or conservator for, or on behalf of, 
                        an estate or creditor or by a person to carry 
                        out a bequest, or an acquisition by intestate 
                        succession under the laws of the State of 
                        residence of the person.
    ``(b) Sentencing Guidelines Enhancements.--Pursuant to its 
authority under section 994(p) of title 28, United States Code, the 
United States Sentencing Commission shall amend the Federal Sentencing 
Guidelines to provide for an appropriate increase in the offense level 
for each of the following violations of this section, if the offense 
involves the shipping, transporting, transferring, disposing of, or 
receiving--
            ``(1) more than 4, but fewer than 15 firearms;
            ``(2) more than 14, but fewer than 25 firearms;
            ``(3) more than 24 but fewer than 100 firearms; and
            ``(4) 100 or more firearms.
    ``(c) Organizer.--If a violation of subsection (a) is committed by 
a person in concert with 5 or more other persons with respect to whom 
such person occupies a position of organizer, a supervisory position, 
or any other position of management, that person may be sentenced to an 
additional term of imprisonment of not more than 5 consecutive years.
    ``(d) Conspiracy.--Any person who attempts or conspires to commit 
any offense defined in this section may be subject to the same 
penalties, including those under subsections (b) and (c), as those 
prescribed for the completed offense.''.
    (b) Technical and Conforming Amendment.--The table of sections of 
chapter 44 of title 18, United States Code, is amended by adding at the 
end the following:

``932. Trafficking in firearms.''.

SEC. 4. CRACKING DOWN ON CORRUPT GUN DEALERS.

    (a) In General.--Section 923 of title 18, United States Code, is 
amended by striking subsections (e) and (f) and inserting the 
following:
    ``(e)(1) If the holder of a license issued under this section 
knowingly violates any provision of this chapter, chapter 53 of the 
Internal Revenue Code of 1986, the Arms Export Control Act (22 U.S.C. 
2751 et seq.), or section 1001 of this title, or any rule or regulation 
as prescribed by the Attorney General, the Attorney General may--
            ``(A) assess on the licensee a civil penalty of not more 
        than $2,500; and
            ``(B) suspend for not more than 6 months, or revoke, any 
        license issued under this section.
    ``(2)(A) Except as provided in subparagraph (B), the Attorney 
General may, after notice and opportunity for hearing, assess a civil 
penalty on, or suspend or revoke any license issued to, a licensee 
under this section, if the licensee fails to have secure gun storage or 
safety devices available at any place in which firearms are sold under 
the license to persons who are not licensees.
    ``(B) Subparagraph (A) shall not apply in any case in which a 
secure gun storage or safety device is temporarily unavailable because 
of theft, casualty loss, consumer sales, backorders from a 
manufacturer, or any other similar reason beyond the control of the 
licensee, the dealer shall not be considered to be in violation of the 
requirement to make available such a device.
    ``(3) The Attorney General may, after notice and opportunity for 
hearing, assess a civil penalty, suspend or revoke the license of a 
dealer who knowingly transfers armor piercing ammunition.
    ``(4) The Attorney General may suspend or revoke any license issued 
under this section if the holder of the license has been indicted for 
knowingly violating any provision of this chapter, chapter 53 of the 
Internal Revenue Code of 1986, the Arms Export Control Act (22 U.S.C. 
2751 et seq.), or section 1001 of this title in a manner that could 
create a threat to public safety.
    ``(f)(1) Any person whose application for a license is denied and 
any holder of a license which is suspended or revoked or who is 
assessed a civil penalty shall receive written notice from the Attorney 
General stating specifically the grounds upon which the application was 
denied or upon which the license was suspended or revoked or the civil 
penalty assessed. Any notice of a fine, suspension, or revocation of a 
license shall be given to the holder of the license not less than 14 
days before the effective date of the suspension, revocation, or 
imposition of a civil penalty, unless the Attorney General determines 
that good cause exists to waive such notification requirement, in which 
case notification shall be given as soon as practicable.
    ``(2) If the Attorney General denies an application for a license, 
or suspends or revokes a license, or assesses a civil penalty, the 
Attorney General shall, upon request by the aggrieved party, promptly 
hold a hearing to review the denial, suspension, revocation, or 
assessment. A hearing under this paragraph shall be held at a location 
convenient to the aggrieved party and shall be conducted pursuant to 
chapter 5 of title 5.
    ``(3) If, after a hearing held under paragraph (2), the Attorney 
General decides not to reverse the decision to deny an application or 
suspend or revoke a license or assess a civil penalty, the Attorney 
General shall give notice in writing of the decision to the aggrieved 
party. The aggrieved party may at any time within 60 days after the 
date of notice is given under this paragraph file a petition with the 
United States district court for the district in which the party 
resides or in which the party's principal place of business is located 
for judicial review of the denial, suspension, revocation, or 
assessment. Such judicial review shall be conducted pursuant to chapter 
7 of title 5. If the court decides that the Attorney General was not 
authorized to deny the application or to suspend or revoke the license 
or to assess the civil penalty, the court shall order the Attorney 
General to take such action as may be necessary to comply with the 
judgment of the court.''.
    (b) Technical and Conforming Amendments.--
            (1) Section 925 of title 18.--Section 925 of title 18, 
        United States Code, is amended--
                    (A) by striking subsection (b);
                    (B) by redesignating subsections (c), (d), (e), and 
                (f) as subsections (b), (c), (d), and (e), 
                respectively; and
                    (C) in subsection (e), as redesignated, by striking 
                ``under subsection (d)'' and inserting ``under 
                subsection (c)''.
            (2) Section 922 of title 18.--Section 922(d) of title 18, 
        United States Code, is amended in the matter following 
        paragraph (9)--
                    (A) by striking ``subsection (b) of section 925'' 
                and inserting ``section 923(e)(4)''; and
                    (B) by striking ``subsection (c)'' and inserting 
                ``subsection (b)''.
            (3) Arms export and control act.--Section 38(b)(1)(B)(i) of 
        the Arms Export and Control Act (22 U.S.C. 2778(b)(1)(B)(i)) is 
        amended by striking ``section 925(e)'' and inserting ``section 
        925(d)''.
            (4) Atomic energy act of 1954.--Section 161A of the Atomic 
        Energy Act of 1954 (42 U.S.C. 2201a) is amended by striking 
        ``section 925(d)(3)'' and inserting ``section 925(c)(3)''.

SEC. 5. CHANGE THE STANDARD FOR GUN SELLER FEDERAL FIREARMS LICENSE 
              APPROVAL.

    Section 923(d)(1) of title 18, United States Code, is amended--
            (1) in subparagraph (C), by striking ``willfully'' and 
        inserting ``knowingly''; and
            (2) in subparagraph (D), by striking ``willfully'' and 
        inserting ``knowingly''.

SEC. 6. STRENGTHEN PENALTIES FOR RECORDKEEPING VIOLATIONS.

    Section 924(a)(3) of title 18, United States Code, is amended by 
striking ``one year'' and inserting ``3 years''.

SEC. 7. CRACKING DOWN ON HIGH-RISK GUN DEALERS.

    Section 923 of title 18, United States Code is amended by adding 
the following:
    ``(m)(1) At least once every year, the Attorney General shall 
identify licensed firearms dealers who have a heightened risk of 
firearms being diverted to criminal use based on criteria determined by 
the Attorney General which may include 2 or more of the following:
            ``(A) Short time-to-crime for crime guns traced to a 
        dealer.
            ``(B) Incomplete crime gun trace results for firearms sold 
        by a dealer.
            ``(C) Significant or frequently reported firearm losses or 
        thefts by a dealer.
            ``(D) Violations of Federal firearms laws by a dealer.
            ``(E) Any additional criteria determined by the Attorney 
        General.
    ``(2)(A) The Attorney General may impose special conditions on 
dealers determined to be subject to a heightened risk of diversion 
under paragraph (1) after written notice 14 days in advance, 
including--
            ``(i) inspection or examination of inventory and records, 
        notwithstanding subsection (g)(1)(B);
            ``(ii) requirements that the dealer secure firearms at its 
        business premises in a manner to be determined by the Attorney 
        General;
            ``(iii) mandatory inventory check and reconciliation of 
        firearms at the business premises by the dealer in a manner to 
        be determined by the Attorney General and notwithstanding any 
        other provision of Federal law;
            ``(iv) notwithstanding section 922(t)(1)(B)(ii), a 
        requirement that the dealer not complete firearm sales or 
        transfers until the national instant criminal background check 
        system has informed the dealer that the sale or transfer may 
        proceed; and
            ``(v) require that the dealer and employees undergo special 
        training in how to avoid illegal sales.
    ``(B) Conditions may be imposed on a dealer identified as a high-
risk dealer under this paragraph for no longer than 1 year, unless the 
Attorney General determines that the dealer continues to have a 
heightened risk of firearms being diverted to criminal use. The 
Attorney General shall notify the dealer in writing of any such 
conditions imposed on such dealer.
    ``(3) After the Attorney General has identified a dealer as a high-
risk dealer and has imposed conditions on that dealer, a knowing 
violation by the dealer of any condition imposed under this subsection 
shall be considered a willful violation of this chapter, for the 
purposes of section 924(a)(1)(D).
    ``(4)(A) Any dealer identified as a high-risk dealer under 
paragraph (1) may challenge the designation by requesting a hearing in 
writing to review within 60 days after notice of such designation.
    ``(B) If after a hearing held under subparagraph (A) the Attorney 
General decides not to reverse the designation of the dealer as a high-
risk dealer, the Attorney General shall give notice of the decision to 
the dealer. The dealer may at any time within 60 days after the date 
notice is given under this subparagraph file a petition with the United 
States district court for the district in which the party resides or in 
which the party's principal place of business is located for judicial 
review of the Attorney General's designation. Such judicial review 
shall be conducted pursuant to chapter 7 of title 5.
    ``(5) Nothing in this subsection shall be construed to limit the 
authority of the Attorney General under section 926.''.

SEC. 8. GOVERNMENT ACCOUNTABILITY OFFICE STUDY ON LOST AND STOLEN 
              FIREARMS.

    (a) Definition.--For the purposes of this section the term 
``firearm''--
            (1) means any weapon which will or is designed to or may 
        readily be converted to expel a projectile by the action of an 
        explosive and the frame or receiver of any such weapon; and
            (2) does not include an antique firearm, as defined in 
        section 921 of title 18, United States Code.
    (b) Study.--The Comptroller General of the United States shall 
conduct a study on firearms in the United States that are lost or 
stolen during commercial shipping, including--
            (1) determining the number of firearms that are lost or 
        stolen during commercial shipping on average per year;
            (2) identifying how firearms are being lost or stolen 
        during commercial shipping;
            (3) what efforts, if any, to reduce the number of firearms 
        that are lost or stolen during commercial shipping are being 
        made by--
                    (A) Federal law enforcement agencies;
                    (B) firearm manufacturers;
                    (C) firearm dealers; and
                    (D) shipping companies that transport firearms; and
            (4) the role that firearms lost or stolen during commercial 
        shipping play in interstate and international gun trafficking.
    (c) Report.--Not later than 1 year after the date of enactment of 
this Act, the Comptroller General of the United States shall submit to 
Congress a report that contains--
            (1) the results of the study required under subsection (a); 
        and
            (2) recommendations for how to reduce the number of 
        firearms that are lost or stolen during commercial shipping.

SEC. 9. AUTHORITY TO HIRE PERSONNEL TO ADDRESS TRAFFICKING IN FIREARMS.

    (a) In General.--The Director of the Bureau of Alcohol, Tobacco, 
Firearms and Explosives may hire additional personnel sufficient for a 
firearms trafficking team of additional agents, Industry Operations 
Investigators, and analysts that would enable the average inspections 
rate of gun dealers to operate on a 3-year inspection cycle.
    (b) Authority To Hire Personnel To Address Trafficking in 
Firearms.--
            (1) In general.--The Director of the Bureau of Alcohol, 
        Tobacco, Firearms, and Explosives shall hire 500 additional 
        Industry Operations Investigators and 1,000 additional Special 
        Agents, subject to the availability of appropriations, for the 
        purpose of addressing trafficking in firearms, as described in 
        section 932 of title 18, United States Code, as added by this 
        Act.
            (2) Authority.--There are authorized to be appropriated for 
        the hiring and maintenance of 500 additional Industry 
        Operations Investigators and 1,000 additional Special Agents--
                    (A) $65,593,500 for fiscal year 2011, to hire 125 
                Industry Operations Investigators and 250 Special 
                Agents;
                    (B) $153,735,425 for fiscal year 2012, to hire 125 
                Industry Operations Investigators and 250 Special 
                Agents;
                    (C) $268,199,200 for fiscal year 2013, to hire 125 
                Industry Operations Investigators and 250 Special 
                Agents; and
                    (D) $387,741,186 for fiscal year 2014, to hire 125 
                Industry Operations Investigators and 250 Special 
                Agents.
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