1.This Act may be cited as
the Gun Trafficking Prevention Act of
2012
.
2.Congress finds and declares that—
(1)in gun crimes
occurring in New York City, approximately 90 percent of the guns used were
originally sold in other States and moved across State lines before being
recovered in crimes;
(2)according to the
Federal Bureau of Investigation, in 2010, in the United States,
2/3 of all murders committed resulted from the use of a
firearm, and 2,199 people under the age of 22 were murdered with a
firearm;
(3)the Bureau of
Alcohol, Tobacco, Firearms and Explosives (in this section referred to as the
ATF
) has found that straw purchasers are the largest source of
guns trafficked into the illegal market;
(4)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;
(5)there are
approximately 2,500 agents, 824 Industry Operator Investigators, and 640
supervisory, field-based industry operations investigators responsible for
inspecting approximately 120,000 Federal firearm licensees and 11,000 Federal
explosive licensees;
(6)the average cycle
of inspection is 7 to 10 years; and
(7)the ATF needs
more resources to prevent guns from falling into the hands of those persons not
legally allowed to possess them.
3.
(a)Chapter 44 of title 18, United States Code, is amended by
inserting at the end the following:
932.
(a)
(1)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)Any
person who violates this section shall be fined under this title, imprisoned
not more than 20 years, or both.
(3)
(A)It is an affirmative defense to any prosecution for a
violation of subparagraph (A) or (B) of paragraph (1) or a violation of
paragraph (1)(D) 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 subsection (g) or
(n) of section 922 or State law.
(B)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)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 enhancementsPursuant 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)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)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 amendmentThe 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.
.
4.Cracking down on
corrupt gun dealers
(a)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,
and 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, 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(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 ActSection 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 1954Section 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)
.
5.Change the
standard for gun seller federal firearms license approvalSection 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
.
6.Strengthen
penalties for record-keeping violationsSection 924(a)(3) of title 18, United States
Code, is amended in the flush text following subparagraph (B) by striking
one year
and inserting 3 years
.
7.Cracking down on
High Risk Gun DealersSection
923 of title 18, United States Code is amended by adding the following:
(m)(1)Not less than once each
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.
.
8.Government
Accountability Office study on lost and stolen firearms
(a)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)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)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.
9.Authority to
Hire Personnel to Address Trafficking in firearms
(a)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)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)There
are authorized to be appropriated for the hiring and maintenance of 500
additional Industry Operations Investigators and 1,000 additional Special
Agents such sum as are necessary—
(A)for fiscal year
2013, to hire 125 Industry Operations Investigators and 250 Special
Agents;
(B)for fiscal year
2014, to hire 125 Industry Operations Investigators and 250 Special
Agents;
(C)for fiscal year
2015, to hire 125 Industry Operations Investigators and 250 Special Agents;
and
(D)for fiscal year
2016, to hire 125 Industry Operations Investigators and 250 Special
Agents.