[Congressional Record Volume 152, Number 121 (Monday, September 25, 2006)]
[House]
[Pages H6953-H6961]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
[[Page H6953]]
BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES (BATFE)
MODERNIZATION AND REFORM ACT OF 2006
Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass
the bill (H.R. 5092) to modernize and reform the Bureau of Alcohol,
Tobacco, Firearms, and Explosives, as amended.
The Clerk read as follows
H.R. 5092
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 ``Bureau of Alcohol, Tobacco,
Firearms, and Explosives (BATFE) Modernization and Reform Act
of 2006''.
SEC. 2. GRADUATED PENALTIES FOR CIVIL VIOLATIONS BY FEDERAL
FIREARMS LICENSEES.
(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)(A) If the Attorney General determines that a
licensee under this section has willfully violated any
provision of this chapter or any regulation prescribed under
this chapter, the Attorney General may--
``(i) if the violation is of a minor nature--
``(I) impose on the licensee a civil money penalty of not
more than $1,000 for each such violation, except that the
total amount of penalties imposed on a licensee under this
subclause for violations arising from a single inspection or
examination shall not exceed $5,000; or
``(II) suspend the license for not more than 30 days, and
specify the circumstances under which the suspension is to be
terminated, if, in the period for which the license is in
effect, there have been at least 2 prior occasions on which
the licensee has been determined to have violated this
chapter; or
``(ii) if the violation is of a serious nature--
``(I) impose on the licensee a civil money penalty of not
more than $2,500 for each such violation, except that the
total amount of penalties imposed on a licensee under this
subclause for a violations arising from a single inspection
or examination shall not exceed $15,000;
``(II) suspend the license for not more than 90 days, and
specify the circumstances under which the suspension is to be
terminated;
``(III) revoke the license; or
``(IV) take the actions described in subclauses (I) and
(II), or subclauses (I) and (III).
``(B)(i)(I) In determining the amount of a civil money
penalty to impose under subparagraph (A) on a licensee, the
nature and severity of the violation involved, the size of
the firearms business operated by the licensee, and the prior
record of the licensee shall be considered.
``(II) On request of the licensee, the Attorney General may
consider the ability of the licensee to pay a civil money
penalty, and may allow the licensee to submit documents and
information to establish the ability of the licensee to pay.
The Attorney General shall not make part of any public record
any document or information so submitted, and shall return to
the licensee any such document or information.
``(III) The total amount of penalties imposed on a licensee
under subparagraph (A) with respect to violations of a minor
nature and of a serious nature arising from a single
inspection or examination shall not exceed $15,000.
``(ii) For purposes of subparagraph (A), violation of a
provision of this chapter with respect to 2 or more firearms
during a single transaction shall be considered a single
violation of the provision.
``(iii) The Attorney General may defer, or suspend, in
whole or in part, the imposition of a civil money penalty on
a licensee whose license is suspended under this paragraph.
``(C) For purposes of subparagraph (A):
``(i) A violation of this chapter shall be considered to be
of a serious nature if the violation--
``(I) results in or could have resulted in the transfer of
a firearm or ammunition to a person prohibited from
possessing or receiving the firearm or ammunition under this
chapter or under State or local law;
``(II) obstructs or could have obstructed a bona fide
criminal investigation or prosecution, or an inspection or
examination under this chapter; or
``(III) prevents or could have prevented a licensee from
complying with subsection (a)(7), (a)(8), (b)(1), (b)(3),
(b)(4), (j), (k), (o), or (p) of section 922, subsection
(g)(7) of this section, or subsection (b) or (h) of section
924.
``(ii) A violation of this chapter shall be considered to
be of a minor nature if the violation is not of a serious
nature.
``(D) The Attorney General may not commence an enforcement
action under subparagraph (A) with respect to a violation,
after the 5-year period that begins with--
``(i) the date the violation occurred; or
``(ii) if the licensee intentionally obstructed discovery
of the violation, the date the violation is discovered.
``(2)(A) Not less than 30 days before the effective date of
any penalty imposed on a licensee by reason of a
determination made under paragraph (1), the Attorney General
shall send the licensee a written notice--
``(i) of the determination, and the grounds on which the
determination was made;
``(ii) of the nature of the penalty; and
``(iii) that the licensee may, within 30 days after receipt
of the notice, request a hearing to review the determination.
``(B) A hearing to review a determination made under
paragraph (1) with respect to a licensee shall not be held
unless the licensee requests such a hearing within 30 days
after receiving the notice of the determination sent pursuant
to subparagraph (A).
``(C) On timely receipt from the licensee of a request for
such a review, the Attorney General shall stay the imposition
under paragraph (1) of any penalty involved, pending
resolution of the review, unless, in the case of a suspension
or revocation of a licensee, the Attorney General
establishes, at a hearing before an administrative law judge,
by clear and convincing evidence, that the continued
operation by the licensee of the business poses an immediate
and grave threat to public safety.
``(3)(A) Within 90 days after timely receipt from a
licensee of a request to review a determination made under
paragraph (1) (or at such later time as is agreed to by the
Attorney General and the licensee), an administrative law
judge shall hold a hearing, at a location convenient to the
licensee, to review the determination.
``(B) Not less than 30 days before the hearing, the
Attorney General shall deliver to the licensee--
``(i) a document identifying each person whom the Attorney
General intends to call as a witness during the hearing;
``(ii) a copy of each document which will be introduced as
evidence at the hearing; and
``(iii) copies of all documents on which the determination
is based.
``(C) Within 90 days after the hearing, the administrative
law judge shall issue a written decision setting forth
findings of fact and conclusions of law, and a decision as to
whether to affirm, modify, or reverse the determination.
``(D) On request of the licensee, the Attorney General
shall stay the effective date of any penalty, suspension, or
revocation until there has been a final, nonreviewable
judgment with respect to the determination involved, unless,
in the case of a suspension or revocation of a licensee, the
Attorney General establishes, at a hearing before an
administrative law judge, by clear and convincing evidence,
that the continued operation by the licensee of the business
poses an immediate and grave threat to public safety.
``(E) The action of an administrative law judge under this
subsection shall be considered final agency action for all
purposes, and may be reviewed only as provided in subsection
(f).
``(4) This subsection shall not be interpreted to affect
the authority of the Attorney General under section
922(t)(5).
``(f)(1) Within 60 days after a party receives a notice
issued under subsection (d)(3) of a decision to deny a
license, or a notice issued under subsection (e)(3)(C) of a
determination to impose a civil money penalty or to suspend
or revoke a license, the party may file a petition with the
United States district court for the district in which the
party resides or has a principal place of business for a de
novo review of the decision or determination.
``(2) In a proceeding conducted under this paragraph, the
court shall, on application of a party, consider any evidence
submitted by the parties to the proceeding whether or not the
evidence was considered at the hearing held under subsection
(d)(3) or (e)(3).
``(3) If the court decides that the decision or
determination was not authorized, the court shall order the
Attorney General to take such action as may be necessary to
comply with the judgment of the court.
``(4) If criminal proceedings are instituted against a
licensee alleging any violation of this chapter or of a
regulation prescribed under this chapter, and the licensee is
acquitted of the charges, or the proceedings are terminated,
other than upon motion of the Government before trial on the
charges, the Attorney General shall be absolutely barred from
denying a license under this chapter, suspending or revoking
a license granted under this chapter, or imposing a civil
money penalty under subsection (e), if the action would be
based in whole or in part on the facts which form the basis
of the criminal charges.
``(5) The Attorney General may not institute a proceeding
to suspend or revoke a license granted under this chapter, or
to impose a civil money penalty under subsection (e), more
than 1 year after the filing of the indictment or
information.''.
(b) Conforming Amendment to Procedure Applicable to Denial
of Application for License.--Section 923(d) of such title is
amended by adding at the end the following:
``(3) If the Attorney General denies an application for a
license, an administrative law judge of the Department of
Justice shall, on request by the aggrieved party, promptly
hold a hearing to review the denial, at a location convenient
to the aggrieved party. If, after the hearing, the
administrative law judge decides not to reverse the denial,
the administrative law judge shall give notice of the final
denial decision to the aggrieved party.''.
SEC. 3. CONSIDERATION OF FEDERAL FIREARMS LICENSE
APPLICATIONS.
(a) In General.--Section 923(d) of title 18, United States
Code, as amended by section 2(b) of this Act, is amended by
redesignating paragraphs (2) and (3) as paragraphs (3) and
(4) and inserting after paragraph (1) the following:
[[Page H6954]]
``(2) The Attorney General shall make a preliminary
determination as to whether to approve or deny an application
submitted under subsection (a) or (b). If the preliminary
determination is to deny the application, the Attorney
General shall notify the applicant in writing of the
preliminary determination and the reasons for the preliminary
determination, and shall afford the applicant an opportunity
to supplement the application with additional information and
to request a hearing on the application. If the applicant, in
a timely manner, requests such a hearing, the Attorney
General shall hold the hearing at a location convenient to
the applicant, and shall notify the applicant in writing of
the time and place of the hearing.''.
(b) Conforming Amendment.--Section 923(f) of such title, as
amended by section 2(a) of this Act, is amended by striking
``(d)(3)'' each place it appears and inserting ``(d)(4)''.
SEC. 4. DEFINITION OF WILLFULLY.
Section 923(e) of title 18, United States Code, as amended
by section 2(a) of this Act, is amended by adding at the end
the following:
``(5) For purposes of this subsection, the term `willfully'
means, with respect to conduct of a person, that the person
knew of a legal duty, and engaged in the conduct knowingly
and in intentional disregard of the duty.''.
SEC. 5. ESTABLISHMENT OF FORMAL INSPECTION, EXAMINATION, AND
INVESTIGATIVE GUIDELINES.
The Attorney General shall establish guidelines for how the
Bureau of Alcohol, Tobacco, Firearms, and Explosives is to
conduct inspections, examinations, or investigations of
possible violations of chapters 40 and 44 of title 18, United
States Code.
SEC. 6. REVIEW BY THE INSPECTOR GENERAL OF THE DEPARTMENT OF
JUSTICE OF THE GUN SHOW ENFORCEMENT PROGRAM;
REPORT.
(a) Review.--The Inspector General of the Department of
Justice shall conduct a review of the operations of the
Bureau of Alcohol, Tobacco, Firearms, and Explosives, for the
purpose of assessing the manner in which the Bureau conducts
the gun show enforcement program and blanket residency checks
of prospective and actual firearms purchasers.
(b) Report.--Not later than 1 year after the date of the
enactment of this Act, the Inspector General of the
Department of Justice shall submit to the Committee on the
Judiciary of the House of Representatives and the Committee
on the Judiciary of the Senate a written report that contains
the findings of the review required by subsection (a), and
includes such recommendations as may be appropriate.
SEC. 7. LIMITATIONS ON USE OF FIREARMS PURCHASER INFORMATION.
Section 923(g)(1)(D) of title 18, United States Code, is
amended in the last sentence by inserting ``, except that
information identifying a person who has purchased or
received firearms or ammunition and who is not prohibited
from doing so may not be so made available or so provided
unless the agency involved has certified that the agency will
not disclose the information to any entity other than a
court, federal, State or local law enforcement agency, or
prosecutor'' before the period.
SEC. 8. LIQUIDATION OF INVENTORY IN FEDERAL FIREARMS LICENSE
EXPIRATION, SURRENDER, OR REVOCATION CASES.
Section 923 of title 18, United States Code, is amended by
adding at the end the following:
``(m)(1) Except as provided in paragraph (2), a person
whose license issued under this chapter is expired,
surrendered, or revoked shall be afforded 60 days from the
effective date of the expiration, surrender, or revocation to
liquidate the firearms inventory of the person, which time
may be extended upon a showing of reasonable cause. During
such 60-day period (including any extension of the period),
the license involved shall continue to be considered valid.
``(2) Paragraph (1) shall not apply with respect to a
person if a United States District Court for the judicial
district in which the person resides or in which the
principal place of business of the person subject to the
license is located finds, by clear and convincing evidence,
that the continued operation by the person of the business
poses an immediate and grave threat to public safety.''.
SEC. 9. OPPORTUNITY TO CURE VIOLATIONS AFTER ACQUISITION OF
FIREARMS BUSINESS.
Section 923 of title 18, United States Code, is further
amended by adding at the end the following:
``(n) If the Attorney General is made aware that a business
licensed under this chapter has transferred to a surviving
spouse or child of the licensee, to an executor,
administrator, or other legal representative of a deceased
licensee; or to a receiver or trustee in bankruptcy, or an
assignee for benefit of creditors, and, before the transfer,
or on the first inspection or examination by the Attorney
General of the records of the licensee after the transfer,
the licensee is found to be operating the business in
violation of this chapter, the Attorney General--
``(1) shall notify the transferee of the violation by the
transferor; and
``(2) shall not presume that the transferee is committing
the violation.''.
SEC. 10. STANDARDS FOR CRIMINAL VIOLATIONS OF RECORDKEEPING
REQUIREMENTS.
Section 922(m) of title 18, United States Code, is
amended--
(1) by striking ``any false entry'' and inserting ``a
materially false entry'';
(2) by striking ``appropriate entry'' and inserting ``a
materially significant entry''; and
(3) by striking ``properly maintain'' and inserting
``retain custody of''.
SEC. 11. AUTHORITY TO COLLECT INFORMATION ON EXPLOSIVES
STORED UNDER STATE LAW; REGULATIONS GOVERNING
STORAGE OF EXPLOSIVES MADE APPLICABLE TO
STORAGE OF EXPLOSIVES BY AGENCIES OPERATING
UNDER STATE LAW.
(a) Authority to Collect Information on Explosives Stored
Under State Law.--
(1) In general.--Section 846 of title 18, United States
Code, is amended by adding at the end the following:
``(c) Each agency operating under the law of any State or
political subdivision thereof that stores or keeps explosive
materials shall submit to the Attorney General, at such time
as the Attorney General shall prescribe in regulations, a
written report that specifies each location at which the
agency stores or keeps explosive materials that have been
shipped or transported in interstate or foreign commerce, and
the types and amounts of such explosive materials that are
stored or kept at the location.''.
(2) Regulations.--Within 6 months after the date of the
enactment of this section, the Attorney General shall
prescribe the regulations referred to in section 846(c) of
title 18, United States Code.
(b) Regulations Governing Storage of Explosives Made
Applicable to Storage of Explosives by Agencies Operating
Under State Law.--Subpart K of part 555 of subchapter C of
chapter II of title 27, Code of Federal Regulations, shall
apply with respect to the storage by agencies operating under
the law of any State or political subdivision thereof of
explosive materials that have been shipped or transported in
interstate or foreign commerce.
SEC. 12. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take
effect at the end of the 180-day period that begins with the
date of the enactment of this Act.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Wisconsin (Mr. Sensenbrenner) and the gentleman from Maryland (Mr. Van
Hollen) each will control 20 minutes.
The Chair recognizes the gentleman from Wisconsin.
General Leave
Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks and include extraneous material on H.R. 5092 currently
under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Wisconsin?
There was no objection.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I rise in support of H.R. 5092, the Bureau of Alcohol,
Tobacco, Firearms, and Explosives Modernization and Reform Act of 2006.
The bill is a bipartisan bill aimed at providing ATF with a full
complement of enforcement tools needed to ensure compliance by Federal
firearms licensees with Federal regulations.
A series of oversight hearings by the Crime Subcommittee showed that
ATF'S existing enforcement authorities actually hinder its ability to
enforce our Nation's gun laws and unfairly impact Federal firearms
licensees. This legislation provides a comprehensive response to the
concerns raised in those hearings.
For too many years, ATF has labored under a restrictive enforcement
scheme which forces the ATF to either revoke a license or do nothing at
all. This bill would provide ATF with graduated penalties so that
licensees will face the possibility of civil penalty suspensions and
the ultimate penalty, revocation of the license. No longer will ATF
have to try to cajole licensees to comply or threaten them with heavy-
handed revocation proceedings. With this measure ATF will be able to
seek a penalty that fits the infraction, depending upon the seriousness
of the violation.
In addition, the bill replaces the existing adjudicatory system,
which consists of former ATF employees who sit as Administrative Law
Judges, with a professional and neutral staff of ALJs who will sit and
hear enforcement cases. The bill includes deadlines for hearings and
decisions so that enforcement will be expedited. The bill also
authorizes ATF to shut down licensees who pose a serious harm to the
public.
The bill also remedies a significant problem of enforcement. ATF has
used
[[Page H6955]]
its enforcement authority to threaten revocation of licenses against
gun dealers who make inadvertent or technical mistakes in their
paperwork. The subcommittee has heard testimony on this issue, which
revealed that ATF treats virtually all errors in dealers records, no
matter how few or how minor, as willful violations.
For example, a witness cited that a licensee received a revocation
notice for writing a ``Y'' or an ``N'' instead of writing out ``yes''
or ``no'' on a firearms transactions form. That does not make sense. Or
in a number of transactions, a revocation notice cited the failure of a
firearm arms purchaser to identify country of residence, although the
purchaser listed county of residence.
Such enforcement activities are not fair to any notion of due
process. The bill clarifies that violations must be knowing and
intentional violations versus good faith or technical mistakes in
recordkeeping.
I urge my colleagues to vote in favor of this bipartisan bill, which
will improve ATF's enforcement authorities and fairness and justice of
their treatment of gun dealers
Mr. Speaker, I reserve the balance of my time.
Mr. VAN HOLLEN. Mr. Speaker, at the outset, I yield 3\1/2\ minutes to
the gentleman from Virginia (Mr. Scott), even though he is in support
of the bill.
Mr. SCOTT of Virginia. I thank the gentleman for yielding.
Mr. Speaker, I rise in support of H.R. 5092. I join with the
gentleman from North Carolina, the subcommittee chairman, Mr. Coble, in
developing this bill, which will focus on improving the due process and
effectiveness in ATF enforcement of Federal gun laws and regulations.
Currently as many as 98 percent of violations cited by ATF against
gun dealers result in nothing more than a letter of reprimand or
meeting with ATF officials at their office, backed by some threats of
revocation. There are complaints, on the one hand, that the enforcement
system treats Federal firearms licensees unfairly by focusing too much
on minor technical violations with threats of revocation. So, on the
occasional, though rare, occasion, where the gun dealer's license is
actually revoked for what is perceived to be a minor violation, it
generates perceptions of unfairness and breeds disrespect of the
regulatory process.
If a violation is challenged, the system perpetuates a further
appearance of unfairness by using ATF employees, responsible to their
supervisors, to decide the case. On the other hand, there are
complaints that ATF is unable to effectively license the licensees,
because the only available sanction is revocation, and licensees note
they are unlikely to be revoked for anything more than a serious
violation. Therefore, they can be casual with a lesser violation since
they are unlikely to receive anything less than a warning.
H.R. 5092 addresses these problems with a system of intermediate
sanctions, applied on a graduated basis. For violations the ATF
designates as minor, the bill makes available to the ATF fines of up to
$1,000, with cumulative fines up to $5,000 per inspection process.
After two incidences of minor violations, suspensions up to 30 days are
available.
For violations designated as serious, there can be fines up to $2,500
per violation, up to $15,000 per inspection; and in addition to such
fines, suspensions up to 90 days or revocation are also available. The
ATF will decide by regulation what constitutes a minor violation or a
major violation. But anything which actually endangers the public will
count as a major violation.
I would also note that, under the bill, any violation that results in
or could have resulted in the transfer of a firearm to a prohibited
person, or prevents the dealer from complying with gun tracing or
anything like that, must be considered a major violation. Therefore,
the suggestion that the bill allows for unaccounted-for guns to be
treated as a minor violation is not true.
To ensure fairness in the process, the bill revamps the hearing
process by requiring that hearings be conducted by Administrative Law
Judges.
Mr. Speaker, in summary, for minor violations, virtually all of which
are now treated with just a letter of reprimand or warning, the bill
provides for substantial fines and treats repeat offenders with
suspensions and/or additional fines. For major violations, the vast
majority of which also result only in a letter of reprimand or a
warning, the bill provides for even more substantial fines, longer
suspensions or revocations. That will result in improved, fair and
meaningful enforcement of our gun laws.
For that reason, I urge my colleagues to support the bill.
Mr. VAN HOLLEN. Mr. Speaker, this bill says that its purpose is to,
and I quote, modernize and reform, unquote, the Bureau of Alcohol,
Tobacco, Firearms, and Explosives.
But what it really does, under the guise of so-called modernization
and reform, is to make it virtually impossible for Federal law
enforcement officers in the ATF to revoke the licenses of those gun
dealers who have violated the gun laws. It guts their power to go after
the worst offenders.
You don't have to take my word for it. Let me just read to you from
the first paragraph of a letter that was sent to Members of Congress on
June 30 of this year:
As former officials of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives, we write to urge you to oppose H.R.
5092, the so-called ATF Modernization and Reform Act. Far
from modernizing ATF, this legislation would severely
undermine the Bureau and protect corrupt gun dealers and gun
traffickers. If passed, this bill would make it extremely
difficult for ATF to successfully prosecute gun traffickers
and dealers who break the law or to revoke dealers' licenses.
{time} 1530
They go on to specifically point out that the requirement that the
ATF prove that a gun trafficker or corrupt gun dealer not only broke
the law, only specifically intended to break the law, would make it
virtually impossible for ATF to successfully enforce our Nation's gun
laws. That is signed by a number of former members of the ATF,
including two of the former directors of ATF.
Let me also quote from David DiBetta, who is an 18-year veteran of
the ATF and who is President of the Federal Law Enforcement Officers
Association's ATF Division. He said it very simply: ``It could be
crippling.''
Look, people have said when various Members of Congress have proposed
new gun safety laws. They have said, just enforce the laws on the
books. And we need to enforce the laws on the books. So what is
especially troubling is that we are here today not to increase
enforcement of the laws on the books but to weaken the ability of
Federal law enforcement officers to go after the worst offenders.
I find it somewhat puzzling that we are gathered here in what has
been dubbed by some so-called ``Security September'' to consider a bill
that ties the hands of Federal law enforcement officers and gives a
break to those few bad apples among the gun dealers who sell mostly to
the criminal market. That is what is especially puzzling.
According to the ATF itself, nearly 60 percent of the guns that are
sold to the criminal market are sold by just 1 percent of the gun
dealers. The vast majority of people who are selling guns in this
country are honest, law-abiding citizens. But this bill isn't designed
to help them. This bill will help those who are the worst violators.
In a little bit I am going to go into how this impacts my State of
Maryland where the ATF has been trying to revoke the license of one of
the worst violators. But he ran down here to Capitol Hill to lobby
against the ATF officials, and here we are on the floor. His voice
seems to have a stronger influence than the voice of so many law
enforcement officers who are out here, as well as others.
I will just close this portion with this. This has also been
presented to us, this bill, as part of the so-called ``American Values
Agenda.'' This bill is part of the American Values Agenda. And I just
want to know, Mr. Speaker, since when did protecting the worst
violators of the law become part of an American value?
Mr. Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield 5 minutes to the gentleman
from North Carolina (Mr. Coble).
Mr. COBLE. Mr. Speaker, I thank the gentleman from Wisconsin,
chairman of the full committee.
Mr. Speaker, this bill has been mischaracterized in many ways since
its inception. The distinguished gentleman from Virginia, Mr. Bobby
[[Page H6956]]
Scott, and I cosponsored this bill. We have attracted 152 cosponsors,
including 32 Democrat Members.
I regard this bill, Mr. Speaker, as a streamlined management tool for
ATF. It, furthermore, creates a revenue stream. When gun dealers are in
fact found guilty of violations, fines may now be imposed, creating an
incentive, if for no other reason, to comply with the law at hand.
I have had some calls from gun dealers around the country complaining
about the bill because they say it opens the door for them to be the
beneficiary of fines to be imposed against them. Well, if they commit
violations, I think fines are appropriate and in order.
I think this is a good bill, as evidenced, as I said before, by 152
of our colleagues who obviously believe it is. It establishes graduated
penalties for civil violation by Federal firearms licensees, it imposes
graduated civil penalties, and it includes fines, suspensions and/or
revocation against licensees who violate gun laws. The penalties are
graduated based on whether the violation is a serious or a non-serious
violation. The nature and the severity of the violation, the size of
the firearms business and the prior record for compliance by these
dealers are considered in determining the civil penalty imposed.
I think, on balance, it is long overdue. This addresses an issue that
should have long ago been addressed. Under the law today, the ATF, in
response to a gun dealer having committed a violation, has one of two
choices: He either does nothing or he revokes.
By the way, Mr. Scott and I conducted at least three hearings on this
matter. At one of the hearings, we learned that a purchaser of a
firearm in response to an answer, and I don't recall whether it was yes
or no, but let's assume for the sake of discussion it was no, the
purchaser inserted the initial ``N'' rather than spelling out no. Well,
this was deemed to be a violation. Technically, I guess it was a
violation, but it was an accidental, incidental violation. Obviously,
there was no willfulness involved, nothing for which the door should be
slammed upon a dealer. I think this bill will provide this sort of
latitude and enlarge the parameters as the ATF goes about its business
of enforcing the laws of our land.
Finally, I don't mean to speak for Mr. Scott, but I think neither Mr.
Scott nor I are interested in hamstringing the ATF. I am pro-ATF, but I
know for a fact that in some instances the ATF agents have become
heavy-handed, maybe even unruly, particularly in the Virginia
situation. So I think this will address that problem.
I find it very interesting, Mr. Speaker, and I have told the chairman
this earlier, the silence has been deafening as far as response from
the ATF. Gun owners of America, they have not come to me in opposition
to this bill.
So I want to thank my good friend from Virginia, Mr. Scott, Mr.
Vassar and our very able staff on our side, Michael and his assistants.
We have put together a good piece of legislation. I urge its passage
Mr. VAN HOLLEN. Mr. Speaker, I yield such time as he may consume to
the gentleman from Michigan (Mr. Conyers).
Mr. CONYERS. Mr. Speaker, I thank the distinguished gentleman from
Maryland, who has put so much of his time and intelligence into an
examination of H.R. 5092, which is called the ``Modernization and
Reform Act.''
This bill is taken up as the reported incidence of gun violence
continues to rise. It is truly unfortunate that some would advance a
proposal such as this, because this measure only threatens to make a
troubling situation even more problematic.
Earlier this month, the Department of Justice told us that criminal
gun violence grew by nearly 50 percent between the years 2004 and 2005.
And up until now, what has been the majority's response to this growing
epidemic? Well, simply to take up a bill that will only lead to an
additional increase in the number of illegal firearms that on a daily
basis constantly go on our streets and communities.
The measure before us, ladies and gentlemen, promises to all but
eliminate the ATF's current authority to revoke the Federal firearms
licenses of corrupt dealers. If enacted, it would make it virtually
impossible for ATF to shut down rogue gun dealers by elevating current
burden of proof requirements beyond that of any other major industry.
So let us understand: This is not about going after honest firearms
dealers, which constitute the majority of those in the trade. It is not
about that. This is about giving a break to the rogue dealers.
This is what is a bit disturbing, because we create in this proposal
two vague classifications of gun laws: the serious and the non-serious.
It allows for license revocation only for serious violations. But it,
unfortunately, defines these violations in such a way that enforcement
would be extremely rare.
It excludes many violations that are, in fact, quite dangerous, such
as when a gun dealer has numerous weapons lost from its inventory with
no record of sale. The bill would require Alcohol, Tobacco and Firearms
to automatically stay or postpone the imposition of a fine, a
suspension or revocation pending completion of an administration
hearing, no matter how egregious the violation.
This standard strongly favors the violator and should be changed so
that the alleged violator is required to prove the likelihood of the
success of his challenge, as is the current practice for most civil
proceedings.
Keeping dangerous firearms out of the hands of violent criminals
continues to be one of the most pressing concerns of our Nation. I know
somebody besides me is going to talk about the newly released data that
shows a total of 3,012 children and teens were killed by gunfire in the
United States in one year. That roughly comes out to approximately one
child every 3 hours, eight children every day, and more than 50
children every week.
This is what we are legislating under a suspension of the rules. I
predict that this suspension is in big trouble, because more and more
people are listening to the remarks of the gentleman from Maryland, who
has made it clear that most of the community that enforces gun laws is
against this.
Now, let's look at it globally. American children are more often at
risk from firearm-related injuries and fatalities than any other
industrialized nation on the planet. Firearms were reportedly used to
kill 19 young people in Great Britain, 57 in Germany, 153 in France,
and a staggering 5,285 children in the United States.
As a concerned Member of Congress who serves on this committee, we
need to do more to protect our children, and not less. To protect our
children and adequately address such problems, we must empower the ATF
with the necessary tools and resources to properly police unscrupulous
firearms dealers. That is what this measure is about. Unfortunately,
the proposals contained therein have taken us in the opposite
direction.
So I conclude by pointing out why I join in opposition to this
measure. Because the International Brotherhood of Police Officers is
against this measure, because the International Association of Chiefs
of Police is opposed to this measure, because the Major Cities Chiefs
of Police is opposed to this measure, and because the Attorney General
of California and two former directors of the Bureau are opposed to
this measure.
So I urge my colleagues to let common sense prevail and let the
interests of our citizens trump the rogue dealers who have a mysterious
way of keeping losing weapons in their inventory with no record of
sale. We are on to them. We know what it means. Nobody here is that
naive.
{time} 1545
So here, ladies and gentlemen, is going to be a very important test,
and I hope that the majority of those that will vote on this measure
will join me in causing a defeat in the suspension of this measure,
H.R. 5092.
September 18, 2006.
House of Representatives,
Washington, DC.
Dear Representative: The Major Cities Chiefs write to
express our strong opposition to H.R. 5092, the Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF)
``Modernization and Reform'' Act. This legislation would have
a devastating effect on the ability of law enforcement to
stem the flow of firearms from lawbreaking gun dealers to
violent criminals.
[[Page H6957]]
H.R. 5092 would make it virtually impossible for ATF to
revoke the licenses of gun dealers who violate federal law.
Instead, ATF would be limited to imposing minimal fines and
temporary suspensions, but only if it met a new,
extraordinary burden of proof that would make even these
meager sanctions incredibly rare. If H.R. 5092 is enacted
into law, ATF's ability to stop corrupt gun dealers from
supplying firearms to the criminal market will be crippled.
For example, H.R. 5092 redefines violations of many of our
nation's gun laws as only ``minor'' violations. License
revocation would be prohibited for these so-called ``minor''
violations, no matter how many times a dealer violated these
federal laws or how egregious those violations may be.
Included as ``minor'' violations are what are, in fact,
serious violations such as a dealer's failure to account for
large numbers of firearms missing from its inventory. A
dealer may claim that hundreds or thousands of weapons have
been ``lost,'' preventing ATF from completing a trace of any
such guns recovered at crime scenes. Missing firearms also
frequently indicate ``off-the-book'' sales to gun traffickers
or felons. Yet H.R. 5092 would remove ATF's power to revoke
the licenses of these gun dealers, greatly jeopardizing ATF's
ability to enforce federal gun laws and our ability to use
crime gun traces to protect our communities from illegal
guns.
Another dangerous provision of H.R. 5092 would allow gun
dealers whose licenses have been revoked for violations of
federal law to continue operating for 60 days after
revocation. ATF would have no discretion to waive this 60-day
sales period, even if it found that a dealer posed a dire
threat to public safety. The idea that ATF would be required
by law to allow a lawbreaking gun dealer to continue selling
guns for 60 days after its license has been revoked simply
makes no sense.
It is not hard to see the devastating effect that H.R. 5092
would have on law enforcement around the country. Crime gun
data compiled by ATF shows that just 1% of our nation's gun
dealers supply nearly 60% of all crime guns. If ATF is unable
to revoke the licenses of corrupt gun dealers, our
communities will continue to be flooded with firearms from
these irresponsible gun sellers. It is imperative that ATF
have the power to stop the flow of guns from, lawbreaking gun
dealers to violent criminals in our cities.
We urge you to stand up for law enforcement and oppose H.R.
5092. Thank you.
Sincerely,
Harold L. Hurtt,
President,
Major Cities Chiefs.
____
September 22, 2006.
Dear Members of Congress: As former officials of the Bureau
of Alcohol, Tobacco, Firearms, and Explosives (``ATF''), we
write to urge you to oppose H.R. 5092, the so-called ATF
``Modernization and Reform Act,'' passed by the House
Judiciary Committee on September 7, 2006. Far from
``modernizing'' ATF, this legislation would severely
undermine the Bureau and protect corrupt gun dealers. If
passed, this bill would make it extremely difficult for ATF
to revoke the licenses of gun dealers who break the law.
Federal law already impedes ATF's law enforcement powers by
requiring it to meet a heightened burden of proving a
``willful'' violation of federal law to revoke the licenses
of dealers who blatantly break the law. This ``willfulness''
standard was imposed by Congress in 1986. To meet this
standard for license revocations, ATF must show that a dealer
was plainly indifferent to known legal obligations, for
example, by proving that the dealer repeatedly broke the law.
See, e.g., Willingham Sports, Inc. v. ATF, 415 F.3d 1274,
1276 (11th Cir. 2005). H.R. 5092 would redefine the
definition of ``willful,'' overriding court rulings on the
meaning of this burden of proof. H.R. 5092 would instead
require that ATF prove a lawbreaker's specific mental state
and purpose. This requirement that ATF prove that a corrupt
gun dealer not only broke the law but also specifically
intended to break the law would make it virtually impossible
for ATF to revoke federal firearms licenses. There is no
reason to protect lawbreakers, at the expense of public
safety, by requiring such an extraordinary burden of proof.
H.R. 5092 also redefines most violations of federal gun
laws as ``minor.'' It prohibits license revocations for such
so-called ``minor'' violations, no matter how egregious the
violations. License revocations would be limited to so-called
``serious'' violations. The bill excludes from so-called
``serious'' violations the most common and serious record
keeping violations for which ATF is able to produce evidence
to revoke the licenses of rogue dealers. Such record keeping
violations include the failure to account for weapons missing
from inventory, a dangerous practice that may be used by a
federally licensed dealer to mask illegal sales or gun
trafficking. A dealer may claim that hundreds or thousands of
weapons have been ``lost,'' preventing ATF from completing a
trace of any such guns recovered at crime scenes. H.R. 5092
would remove ATF's power to revoke the licenses of such gun
dealers, greatly jeopardizing ATF's ability to enforce
federal gun laws and protect our communities from illegal
guns.
H.R. 5092 also grants ATF the ability to impose fines and
temporary license suspensions, although it then places such
severe impediments on ATF's ability to impose these sanctions
as to make them nearly meaningless. For example, it caps
damages at $15,000 for all ``serious'' violations uncovered
by an ATF inspection and $5,000 for ``minor'' violations.
Under H.R. 5092, if ATF uncovered 5,000 violations at one
inspection because of massive numbers of ``lost'' guns with
no record of sale, it would be limited to a $5,000 cap in
fines, or an average of only a meager $1 fine per violation.
It also requires stays of fines and temporary license
suspensions in most cases, through all administrative
hearings and court appeals. This means that an ATF attempt to
impose a few thousand dollars in fines or suspend a license
for a month could be delayed through years of litigation. It
also requires courts to review ATF administrative findings de
novo, requiring courts to reconsider a case without giving
any weight to the findings of an administrative hearing, and
allows a dealer to introduce new evidence in court that was
not submitted at the agency hearing. These procedures simply
encourage prolonged litigation as a way of delaying fines or
license suspension through years of court battles. Instead of
these illogical limits and procedures, ATF should be allowed
to impose real fines and license suspensions without
automatic stays for the most egregious violators.
H.R. 5092 also contains other unreasonable restrictions on
ATF that favor lawbreakers. It allows even the most dangerous
violators of federal law to continue selling guns for 60 days
after they have had their licenses revoked or if their
licenses expire. ATF should have the discretion to limit such
sales where they pose a risk to the community and the
nation's law enforcement officers. The bill also redefines
record keeping requirements by making it more difficult to
sanction dealers who fail to keep proper records of their
firearms. For example, it would end the requirement that
dealers keep their records organized according to long-
standing regulations, instead requiring them simply to keep
``custody'' of such records, in any manner or method chosen
by the dealer. This would shield rogue dealers by requiring
ATF inspections to sort through records kept in disarray,
greatly increasing the cost and length of inspections and the
likelihood that record keeping violations will not be
discovered.
ATF already faces severe constraints in its ability to
crack down on gun dealers who violate the law. H.R. 5092
would further jeopardize ATF's ability to enforce the law
against these rogue elements. Instead of enacting H.R. 5092,
Congress should support legislation that gives ATF the power
to impose fines and license suspensions on gun dealers who
violate the law without extraordinarily high burdens of
proof, automatic stays, and unreasonably low maximum fines.
Stephen Higgins, Director (Ret.) ATF 1982-1993,
Joseph J. Vince, Jr., Chief (Ret), Crime Gun Analysis
Branch, ATF,
Gerald Nunziato, Special Agent in Charge (Ret), National
Tracing Center, ATF,
Frank Wandell, Special Agent & District Senior Operations
Officer (Ret), ATF,
Rex Davis, Director (Ret.) ATF 1966-1978,
William Vizzard, Special Agent in Charge (Ret), ATF,
Julius Wachtel, Resident Agent in Charge (Ret), ATF, Long
Beach Field Office,
Gerald C. Benedict, Special Agent in Charge, Louisville
District (Ret), ATF.
____
State of California,
Office of the Attorney General,
Sacramento, CA.
Re: H.R. 5092.
Hon. F. James Sensenbrenner, Jr.,
Chairman, House Judiciary Committee, House of
Representatives, Washington, DC.
Dear Congressman Sensenbrenner: I am writing to express the
strong opposition of the California Department of Justice to
H.R. 5092, which is now pending in the United States
Congress. If H.R. 5092 were to become law, it would
dangerously undermine the regulation of the nation's gun
dealers on both the state and federal level.
H.R. 5092 would eviscerate the ability of the federal
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to
regulate federally licensed firearms dealers (FFLs). Under
H.R. 5092, ATF would only be able to revoke a license when it
proved that a dealer ``willfully'' committed a ``serious''
violation. Only three types of violations would be classified
as ``serious'' under H.R. 5092. All other firearms and weapon
offenses (including the importation, possession or sale of a
machine gun; possession of a firearm without a serial number;
possession of a bomb, grenade, rocket or missile) would be
considered ``non-serious.''
H.R. 5092's distinction between ``serious'' and ``non-
serious'' violations would undercut the enforcement of state
laws, as well as federal laws. Federal law makes it a felony
to sell a firearm in violation of a state law [18 U.S.C.
Sec. 922(b)(2)]. For example, it is a crime for an FFL to
sell a rifle to a California resident that is considered an
assault weapon under California law. Under current law, the
dealer would be subject not only to criminal prosecution, but
also FFL revocation for the offense. Under H.R. 5092, ATF
would be unable to revoke a dealer's license for failure to
comply with state law because that crime would not be
considered a ``serious'' violation.
Even ``serious'' violations by firearms dealers would
rarely result in license revocation. H.R. 5092 would require
that in order to revoke an FFL, ATF would have to prove that
[[Page H6958]]
the dealer deliberately intended to commit the ``serious''
violation. Current law allows ATF to revoke a federal
firearms license in cases where a dealer ``willfully''
violates a provision of the Gun Control Act of 1968, or any
rule or regulation issued pursuant to the Act. (18 U.S.C.
Sec. 923(e).) A person commits a willful violation when the
person knows of his legal duty, and disregards or is plainly
indifferent to that duty. (Perri v. Department of the
Treasury, 637 F.2d 1332, 1336 (9th Cir. 1981).)
H.R. 5092 redefines the term ``willfully'' in a radical
manner that conflicts with common sense and legal precedent.
While Merriam-Webster's Dictionary of Law defines the term
``willful'' to mean ``not accidental: done deliberately or
knowingly and often in conscious violation or disregard of
the law, duty, or the rights of others,'' H.R. 5092 gives it
a completely different meaning: ``intentionally, purposely,
and with the intent to act in violation of a known legal
duty.''
By redefining a familiar, accepted and well-established
term, H.R. 5092 would make it virtually impossible for ATF to
shut down rogue gun dealers, even when their violations are
numerous, repeated, or linked to crimes involving guns. The
standard to prove a ``willful'' violation is unprecedented in
administrative law and more difficult to prove the mental
state required in most criminal prosecutions. I am aware of
no other federal regulatory agency that is held to such a
high standard in its attempt to regulate licensees.
The only sanction for ``non-serious'' violations under H.R.
5092 would be temporary suspension and fines, even when the
violations are numerous and repeated. The fines set by H.R.
5092 appear to be much lower than fines set in administrative
schemes for other licensees. Fines can only be assessed by
ATF, furthermore, for ``willful'' violations of ``non-
serious'' provisions.
For these reasons, and many others, H.R. 5092 would
directly and negatively affect the State of California. The
Firearms Division of California DOJ works closely and
collaboratively with ATF to monitor firearms dealers in the
state for compliance with state and federal laws. California
DOJ inspectors notify ATF when they observe dealers who are
in violation of federal law and are likewise notified when
ATF agents observe state violations. Our ability to monitor
dealers in the state will be compromised if ATF's authority
to enforce federal law is weakened.
At a time when it is paramount for law enforcement agencies
to work collaboratively to combat the threat of terrorism, it
is outrageous that legislation would be proposed to hamper
law enforcement cooperation. Without any evidence that ATF
has abused its ability to revoke FFLs, it is outrageous to
propose gutting that power. In fact, H.R. 5092 undercuts the
fundamental rationale for the Gun Control Act of 1968: ``to
provide support to Federal, State, and local law enforcement
officials in their fight against crime and violence.''
Therefore, I urge you in the strongest terms to reject it.
Sincerely,
Bill Lockyer,
Attorney General.
______
Law Enforcement Opposition to H.R. 5092, the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) Modernization and Reform Act
U.S. Congress,
The Capitol,
Washington, DC:
The undersigned law enforcement organizations/association
and law enforcement executives represent law enforcement
officers who are actively engaged in providing law
enforcement, public safety and homeland security services in
the United States. We are writing to join with the Major City
Chiefs Association to express our strong opposition to H.R.
5092, the Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF) ``Modernization and Reform'' ACT. This legislation
would have a devastating effect on the ability of law
enforcement to stem the flow of firearms from lawbreaking gun
dealers to violent criminals.
H.R. 5092 would make it virtually impossible for ATF to
revoke the licenses of gun dealers who violate federal law.
Instead, ATF would be limited to imposing minimal fines and
temporary suspensions. but only if it met a new,
extraordinary burden of proof that would make even these
meager sanctions incredibly rare. If H.R. 5092 is enacted
into law, ATF's ability to stop corrupt gun dealers from
supplying firearms to the criminal market will be crippled.
For example. H.R. 5092 redefines violations of many of our
nation's gun laws as only ``minor'' violations. License
revocation would be prohibited for these so-called ``minor''
violations, no matter how many times a dealer violated these
federal laws or how egregious those violations may be.
Included as ``minor'' violations are what are, in fact,
serious violations such as a dealer's failure to account for
large numbers of firearms missing from its inventory. A
dealer may claim that hundreds or thousands of weapons have
been ``lost,'' preventing ATF from completing a trace of any
such guns recovered at crime scenes. Missing firearms also
frequently indicate ``off-the-book'' sales to gun traffickers
or felons. Yet H.R. 5092 would remove ATF's power to revoke
the licenses of these gun dealers, greatly jeopardizing ATF's
ability to enforce federal gun laws and our ability to use
crime gun traces to protect our communities from illegal
guns.
Another dangerous provision of H.R. 5092 would allow gun
dealers whose licenses have been revoked for violations of
federal law to continue operating for 60 days after
revocation. ATF would have no discretion to waive this 60-day
sales period, even if it found that a dealer posed a dire
threat to public safety. The idea that ATF would be required
by law to allow a lawbreaking gun dealer to continue selling
guns for 60 days after its license has been revoked simply
makes no sense.
It is not hard to see the devastating effect that H.R. 5092
would have on law enforcement around the Country. Crime gun
data compiled by ATF shows that just 1% of our nation's gun
dealers supply nearly 60% of all crime guns. If ATF is unable
to revoke the licenses of corrupt gun dealers, our
communities will continue to be flooded with firearms from
these irresponsible gun sellers. It is imperative that ATF
have the power to stop the flow of guns from lawbreaking gun
dealers to violent criminals in our cities.
We urge you to stand up for law enforcement and oppose H.R.
5092. Thank you.
Major City Chiefs Association.
International Brotherhood of Police Officers.
National Black Police Association.
School Safety Advocacy Council.
National Latino Police Officers Association.
Minnesota Association of Chiefs of Police.
Michigan Association of Chiefs of Police.
Chief R. Gil Kerlikowske, Seattle Police Department,
Seattle, WA.
Commissioner Sylvester Johnson, Philadelphia Police
Department, Philadelphia, PA.
Chief Scott Knight, Chaska Police Department, Chaska, MN.
Michael J. Chitwood, Superintendent of Police, Upper Darby
Township Police Department, Upper Darby, Pa.
Chief Michael J. Carroll, West Goshen Township Police
Department, West Chester, Pennsylvania, 4th Vice President,
International Association of Chiefs of Police.
Mark L. Whitman, Police Commissioner, York, PA, IACP
General Chair, State Associations of Chiefs of Police.
Curtis S. Lavarello, Executive Director, School Safety
Advocacy Council, Sarasota, FL.
Mr. VAN HOLLEN. Mr. Speaker, let me thank my colleague from Michigan,
the ranking member of the Judiciary Committee, Mr. Conyers, for his
leadership on this and for pointing out the law enforcement agencies
that are opposed to this important legislation and in favor of the
arguments that we put forth in opposition. And, again, I just cite from
David DiBetta, who is the president of Federal Law Enforcement Officers
Association ATF division, who said: ``This bill would be crippling to
their efforts to enforce our gun laws.''
International Brotherhood of
Police Officers,
Alexandria, VA, September 20, 2006.
U.S. Congress,
Washington, DC.
Dear Representative: The International Brotherhood of
Police Officers (IBPO). representing federal, state and local
police officers around the country, strongly opposes H.R.
5092, the Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF) ``Modernization and Reform'' Act. This senseless
legislation would serve only to cripple law enforcement's
ability to track and prevent the flow of illegal guns across
the country.
H.R. 5092 diminishes the ATF's ability to revoke, suspend
or fine gun dealers by unnecessarily raising the standard of
proof required for adverse action from federal investigators
against gun dealers who blatantly violate federal law
regulating the sale and transfer of guns.
In addition, H.R 5092 reclassifies serious violations of
federal gun to lesser or ``minor'' violations resulting in
negligent or criminal dealers being held to a lower standard,
and in some cases, giving them a free ride because guns
claimed as ``lost'' from their inventory would be impossible
to trace if recovered at a crime scene.
Another shameless provision of H.R. 5092 would allow gun
dealers whose licenses have been revoked for violations of
federal law to continue operating for 60 days after
revocation. The ATF would have to allow these negligent or
criminal gun dealers to continue to sell guns for 60 days
after issuing a revocation.
The IBPO stands strongly against H.R. 5092 because of its
detrimental effects to proven, successful crime fighting
tools used by federal agents and local police. A vote for
H.R. 5092 in any form is a vote against police officers and
it's a vote against the safety of our communities. H.R. 5092
serves no justifiable purpose to law enforcement or
legitimate gun owners.
We urge you to vote against this unnecessary and dangerous
legislation.
Respectfully,
Steve Lenkart,
Director of Legislative Affairs.
____
American Bar Association,
Governmental Affairs Office,
Washington, DC, September 25, 2006.
Dear Representative: We understand that the House of
Representatives will soon consider H.R. 5092, the Bureau of
Alcohol, Tobacco, Firearms and Explosives (``BATFE'')
Modernization and Reform Act
[[Page H6959]]
of 2006. I am writing on behalf of the American Bar
Association to express, our opposition to this legislation
and to urge you to vote against it.
H.R. 5092 would restructure BATFE revocation powers
regarding federal gun dealer licensing and create a new
administrative process for review of gun dealer violations of
federal law. Foremost among our concerns among the proposed
changes to current law contained in H.R. 5092 is that
regarding the standard of proof required in civil penalty
proceedings brought against defendant gun dealers. H.R. 5092
would amend the current standard of ``willful'' misconduct to
require proof that a defendant in acting willfully acted
``intentionally, purposely, and with the intent to act in
violation of a known legal duty.'' This latter standard is
exceptionally high for a civil penalty proceeding and has
been generally limited only to criminal prosecutions of
complex and arcane tax laws. See Cheek v. U.S., 498 U.S. 192,
199 (1991). Penalty proceedings in this area of law are
currently rare and involve violations of laws that are not
complex. We do not believe there is a demonstrable reason to
change the current ``willful'' standard of proof.
We are also concerned with the proposed new regulatory
scheme in H.R. 5092 that would creates a range of new non-
criminal penalties. H.R. 5092 would replace BATFE revocation
of federal licenses in most instances with a new regime of
minor fines and temporary license suspensions. Its proposed
provisions are particularly troubling in regard to offenses
often related to illegal gun trafficking. It would limit
fines for violations from a single inspection or examination
to minimal amounts no matter how many guns are ``missing''
from inventory records and unaccounted for. Furthermore,
multiple gun sales violations--often incident to illegal gun
trafficking--would only result under H.R. 5092 in a maximum
fine of $15,000, an amount too modest to deter crime.
We remain concerned that, despite bipartisan efforts to
moderate key provisions in H.R. 5092 during its consideration
by the Judiciary Committee, H.R. 5092 would unduly weaken
BATFE oversight of federal gun dealers. We believe the
proposed new standard of proof for penalty proceedings
brought against gun dealers and the new administrative regime
proposed in H.R. 5092 would make actions against rogue or
corrupt gun dealers too difficult and would weaken the
agency's oversight role.
For these reasons, we urge you to vote against H.R. 5092.
Sincerely,
Robert D. Evans.
____
Brady Campaign--To Prevent Gun Violence
HOW H.R. 5092 WOULD PROTECT CORRUPT GUN DEALERS AND WEAKEN FEDERAL GUN
LAWS
H.R. 5092, the so-called Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) ``Modernization and Reform
Act,'' would undermine law enforcement and protect corrupt
gun dealers. The bill would make it virtually impossible for
ATF to revoke the licenses of gun dealers who violate federal
law.
The problem of rogue gun dealers is vividly illustrated by
National Rifle Association Board Member Sanford Abrams,
operator of Valley Gun shop of Baltimore, Maryland. Valley
Gun violated federal law over 900 times, and after nearly a
decade of violations, ATF was family able to revoke its
firearms license. The U.S. Department of Justice called
Valley Gun an ``irresponsible gun shop'' that has engaged in
``dangerous operations'' as a ``serial violator'' of federal
gun laws.
Under H.R. 5092, in cases like Abrams' where an
irresponsible dealer was serially violating federal gun laws,
the burden imposed by the legislation to show
``willfulness''--defined in the bill as requiring a specific
intent to break the law--would make license revocation nearly
impossible. Because the bill imposes the same new definition
of ``willfulness'' for fines and suspensions, those lesser
remedies would be unrealistic as well and, in any event,
could be delayed through years of legal appeals.
H.R. 5092 CHANGES THE DEFINITION OF A ``WILLFUL'' VIOLATION OF FEDERAL
LAW TO PROTECT CORRUPT GUN DEALERS (SECTION 4)
Federal law currently places severe restraints on ATF's
ability to revoke licenses from gun dealers who break the
law. Even though ATF inspections often reveal scores of
illegal acts by gun dealers, ATF rarely is able to revoke a
dealer's federal firearms license. In 2003, ATF inspectors
found violations at 1,812 gun dealers, averaging over 80
violations per dealer. Despite this large number of dealers
with multiple violations, ATF issued license revocation
notices for only 54 dealers that year.
ATF's limited ability to revoke licenses of lawbreaking gun
dealers is due, in part, to the overly burdensome requirement
that ATF prove a dealer ``willfully'' violated the law.
Courts have defined ``willfulness'' as requiring proof that
the dealer not only broke the law but also knew that his
or her conduct was unlawful. Yet H.R. 5092 would make it
even more difficult to revoke the licenses of gun dealers
who break the law by changing the current legal definition
of ``willfulness'' to require that ATF prove that a
lawbreaker not only knew of the requirements of the law
and broke the law, but also specifically intended to
violate the law. H.R. 5092's requirement that ATF prove a
lawbreaker's specific mental state and purpose would
present a nearly insurmountable burden. This dangerous
provision is contrary to Supreme Court precedent and would
cripple ATF's ability to enforce firearms laws.
H.R. 5092 REDEFINES MANY SERIOUS FEDERAL GUN CRIMES TO BE ``MINOR''
VIOLATIONS AND PROHIBITS DEALER LICENSE REVOCATION FOR THESE CRIMES
(SECTION 2)
H.R. 5092 re-classifies federal gun laws as ``serious'' and
``minor,'' and allows license revocation only for so-called
``serious,'' willful violations. So-called ``serious''
violations would be rare and would exclude many violations
that are extremely dangerous, such as when a dealer has
``lost'' numerous weapons from its inventory with no record
of sale. Even so-called ``minor'' violations would be nearly
impossible to prove, as these also would require proof of a
specific intent to break the law. For example, ATF
occasionally revokes licenses of dealers who fail to maintain
records for hundreds or thousands of guns. Without proper
records, any such guns recovered in crime would be virtually
untraceable, severely hindering law enforcement's ability to
solve gun crimes. Yet it would be nearly impossible for ATF
to prove that a dealer failed to maintain records with the
specific intent to break the law, as this bill requires.
H.R. 5092 ALLOWS ATF TO IMPOSE MEAGER FINES AND TEMPORARY LICENSE
SUSPENSIONS, BUT ONLY IF IT MEETS A NEARLY INSURMOUNTABLE BURDEN OF
PROOF AND ONLY AFTER LENGTHY DELAYS FAVORING LAWBREAKERS (SECTION 2)
H.R. 5092 would allow ATF to impose fines up to $5,000 for
so-called ``minor'' violations of federal law and $15,000 for
``serious'' violations, but only if ATF proves a dealer
specifically intended to violate the law, making it unlikely
that ATF could impose any fines at all. This maximum fine
applies to all violations uncovered at an inspection, no
matter how many occurred. For example, ATF recently revoked
the license of Trader Sports, a San Leandro, California gun
dealer that supplied hundreds of guns to criminals. ATF found
7,477 firearms unaccounted for and dozens of other violations
at Trader Sports, but under H.R. 5092 the maximum possible
fine would be $15,000, or an average fine of only a few
dollars per violation. In comparison, the Consumer Product
Safety Commission can impose fines on sellers of most unsafe
consumer products of $8,000 per violation, up to a maximum of
$1,825,000.
The bill also allows license suspension of up to 30 days
for so-called ``minor'' violations and 90 days for
``serious'' violations. The bill would require proof of a
specific intent to violate the law in order to suspend a
license, however, making it unlikely that ATF could meet
this difficult burden. Moreover, suspensions could only be
imposed for so-called ``minor'' violations after a gun
dealer violated federal gun laws on two prior occasions.
The bill would require ATF to stay (postpone) a fine,
suspension or revocation through administrative hearings and
years of possible court appeals, in most cases. It also
requires courts to review ATF administrative findings de
novo, giving no weight to administrative judges' findings,
rendering the administrative process largely meaningless and
a waste of resources.
H.R. 5092 Allows Gun Dealers Who Violate Federal Law To Continue
Selling Guns Even After They Have Had Their Licenses Revoked (Section
8)
H.R. 5092 would allow dealers who violate federal gun laws
to continue selling guns for 60 days after they have had
their license revoked for willful violations of federal gun
laws or after their federal firearms license expires, even if
they pose a dire threat to public safety. This makes a
mockery of license revocation by allowing dealers to evade
revocation and continue operating even though they committed
federal crimes, and allows dealers to temporarily avoid
renewing licenses as currently required by federal law.
H.R. 5092 Protects Gun Dealers Who Fail To Keep Track Of Their Guns
(Section 10)
H.R. 5092 redefines federal law to make it more difficult
to sanction dealers who fail to keep proper records of their
firearms and allows dealers to keep records in disarray. If
dealers are not required to properly maintain records, it
makes it much more difficult for ATF to determine if firearms
are missing or if the dealer is failing to keep proper
records of firearm transactions. This provision would allow
dealers to attempt to hide missing firearms by maintaining
records in disarray, but still in their ``custody.'' For
example, a dealer who had been in business for 50 years could
simply throw all of its files in a back room, maintaining
``custody'' of them but making it very difficult for ATF to
audit the dealer's records to discover violations.
Violence Policy Center,
Washington, DC, September 22, 2006.
Hon. John Conyers,
House of Representatives,
Washington, DC.
Dear Representative Conyers: The Violence Policy Center
(VPC) urges you to oppose H.R. 5092. This dangerous
legislation will only make it harder to crack down on illegal
gun trafficking--even as new Department of Justice statistics
show a steep increase in gun crime. H.R. 5092 is scheduled
for House floor consideration under suspension of the rules
on Monday, September 25, 2006.
H.R. 5092 will turn Supreme Court precedent on its head by
significantly increasing
[[Page H6960]]
the burden of proof required to revoke the license of a
corrupt gun dealer by changing the definition of
``willfulness'' as it applies to revocation proceedings.
Section 4 of the bill would establish a definition of
``willfulness'' that would operate as an ``ignorance of the
law'' excuse for corrupt gun dealers.
This major weakening of current law will make it much more
difficult to stop illegal gun trafficking since corrupt gun
dealers are the number one source of illegally trafficked
firearms according to the Bureau of Alcohol, Tobacco,
Firearms and Explosives' 2000 report Following the Gun.
The Supreme Court stated in Bryan v. U.S., 534 U.S. 184
(1998) that a ``willfulness'' standard that excuses ignorance
of the law only applies in the context of highly technical
tax code and cash reporting violations that present ``the
danger of ensnaring individuals engaged in apparently
innocent conduct.'' The court found such a heightened
standard to be unnecessary and inappropriate in the context
of illegal gun trafficking.
Rather than making it easier for corrupt dealers to skirt
the law, the focus should be on stopping illegal gun
trafficking. The Violence Policy Center urges you to oppose
H.R. 5092.
Sincerely,
M. Kristen Rand,
Legislative Director.
Mr. Speaker, I yield 5 minutes to the gentlewoman from New York (Mrs.
McCarthy) and thank her for her leadership on this very important
matter.
Mrs. McCARTHY. Mr. Speaker, I have to say, in my 10 years in Congress
I have never seen a bill with a more misleading name than this
legislation. Instead of modernizing or reforming the ATF, it makes it
tougher for ATF to crack down on illegal guns. I know the vast majority
of gun sellers are honest, and we know that. But why does Congress feel
the need to protect the small minority who sell guns illegally?
This legislation ties the hands of the ATF in its dealings with 1
percent, you have heard that figure before, 1 percent. Why aren't we
going after that 1 percent? I know the mayor of New York has been
trying to go after that 1 percent, because in New York that is where
the illegal guns are coming from, this 1 percent, and they are killing
our police officers, they are killing our citizens. And you wonder why
some of us get so up in arms about this.
We should be giving the ATF the tools to crack down on these illegal
guns. The bill relaxes recordkeeping requirements by no longer
requiring dealers to properly maintain the records. Not maintaining the
records. Again, it was said by my colleague that we should be enforcing
the laws on the books. All of us agree on that, and there is not one of
us that is trying to take away the right of someone to own a gun. But,
again, the NRA comes down here, and we hear on how many people have
signed on to this bill. Actually, more than that will be there because
they are petrified of the NRA. Why? Because the NRA will organize their
members and basically just go after that Member if they dare to vote
against them.
But even if the ATF is able to revoke a corrupt unlicensed dealer,
this bill gives the dealer 60 days to sell off the remaining inventory.
How crazy is that? You know, we hear constantly that we are after DWI
drivers all the time. And if a tavern is proven to be selling
constantly to underage drivers, they lose their license. They don't
have any time to sell off all their liquor. I mean, let's have a little
common sense here. I mean, we seem to be going backwards constantly in
going forward in trying to protect our police officers and certainly
our front liners out there.
Proponents of this bill will tell you that it is to protect honest
gun sellers who are unfairly targeted by the ATF. I don't know why the
gun dealers aren't standing up and saying let's go after these
unscrupulous gun dealers. They are the ones who are giving them the bad
name. The current law already protects honest dealers.
In fact, while the ATF regularly uncovers illegal acts of gun
dealers, it is very rare that it is able to revoke their license. In
fact, and the last we have is from 2003, the ATF found violations at
more than 1,800 gun dealers in 2003. The ATF found an average of 80
violations. That is not an overlook, 80 violations, that is someone
that is committing a crime at these gun dealers, but only issued
license revocation notifications at 54.
The ATF is doing its job. It is looking at who the bad guys are and
going after them. It is clear that only the worst violators lose their
licenses. Every gun dealer who acknowledges selling a gun to a criminal
reflects poorly on the entire gun industry. It is in the best interests
of the gun industry that dishonest and negligent sellers are forced to
shut their doors. This is a misguided piece of legislation that allows
a small minority of corrupt gun sellers to continue to sell guns to
criminals without penalties.
You know, we are starting to see crime go up continuously in our
small communities, in our cities. We are seeing guns flooding our
streets; we see gangs being able to buy guns illegally. Where are they
coming from? Where are they coming from? Our police departments are
seeing statistics going up constantly, and especially from 2005 to
2006. We have seen more police officers die in the line of duty killed
by illegal guns. Why aren't we doing something to crack down on the
illegal guns? That is what this country should be doing; that is what
this Congress should be doing, and not certainly backing down to the
NRA because we have an election coming up. This is juice for all their
members. It is crazy.
You know, this debate on gun violence certainly since I have been
here has gone backwards and backwards and backwards. We talk about how
many people have died every year because of gun violence. A lot of that
is accidental deaths, a lot of those are certainly guns that people
have in their homes.
No one even talks about the survivors, how it is costing this health
care system over $1 billion a year because of gun violence. We can do a
better job. We should be doing a better job.
Mr. VAN HOLLEN. Mr. Speaker, I urge opposition to the bill.
Mr. KING of New York. Mr. Speaker, I rise today in opposition to H.R.
5092 the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE).
We have been granted the right to bear arms; however, this right is
granted to those who can operate safely and responsibly within the
auspices of the law. Those who cannot operate within the law should not
be given greater opportunities to obtain weapons. Rather than address
this problem, this legislation actually weakens our current law, and
makes it easier for dangerous weapons to get into the hands of
criminals. Instead of weakening current law, we should be giving law
enforcement better tools to combat gun trafficking.
According to a 2000 ATF report, corrupt gun dealers are the number
one source of illegal firearm trafficking. With that information, we
should be working to impose tighter measures and better law
enforcement, so that we can protect innocent Americans who often fall
victim to crimes caused by firearm abuse. Instead, H.R. 5092 does just
the opposite by sympathizing with the gun dealer and adding obstacles
to law enforcement.
Under current law, the ATF can punish gun dealers for illegal gun
sales. H.R. 5092 makes punishment more difficult. In addition, this
bill would prohibit the ATF from considering large amounts of ``lost''
firearms as a violation of law. It is this same type of ``lost
inventory'' that armed the DC sniper.
It is important that we give our law enforcement agents the proper
tools to end gun trafficking, not make it more difficult. It is
unthinkable to me to support any type of legislation that favors the
rights of criminals over the protection of our friends and family.
Finally, I would like to commend Mayor Mike Bloomberg for his
dedication to this issue and his opposition to this legislation. I also
oppose H.R. 5092, and I encourage my colleagues to do the same.
Ms. WATSON. Mr. Speaker, I rise in opposition to H.R. 5092. This bill
does not protect small businesses. In fact, it victimizes them, and the
general public, because it would make it more difficult for the Federal
government to shut down the rogue gun dealers who are arming the gangs
that plague our neighborhoods.
Mr. Speaker, the vast majority of American gun dealers are legitimate
businesspeople. They play by the rules, and deserve to have their
government support them rather than harass them. The problem is that
H.R. 5092 doesn't protect legitimate gun dealers. In fact, there is
absolutely no evidence that legitimate gun dealers are falling victim
to an overzealous Federal government.
In reality, H.R. 5092 is a giveaway to those few gun dealers who just
can't be bothered to comply with the law. As such, H.R. 5092 doesn't
help average, law-abiding gun dealers. Instead, it puts them at a
disadvantage to the few bad actors who see dollar signs in the carnage
that plagues our neighborhoods.
Most gun dealers know that they have a unique responsibility to make
sure their products do not fall into the wrong hands. And so,
[[Page H6961]]
they put in the extra effort to make sure they keep track of the guns
in their inventory. But why should any small businessperson put in the
effort to comply with their responsibilities if the Federal government
cannot shut down the guy across the street who acts irresponsibly? Why
would anyone take the time and expense to do the right thing if they
are going to be run out of business by the few bad apples doing the
wrong thing?
This is the danger we face if H.R. 5092 becomes law. This law will
not protect law-abiding gun dealers. In fact, it will make them victims
of the lawbreakers, by tying the hands of the hard-working Federal
agents who work to keep illegal guns off our streets. I urge my
colleagues to vote ``no'' on H.R. 5092, and protect small
businesspeople and the general public from those few gun dealers who
are too irresponsible to comply with the law.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I appreciate this opportunity
to explain my concerns with the bill, H.R. 5092. My primary concern
with the bill is that it hampers the ability of the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (BATF) to put corrupt gun dealers out
of business, and thus help reduce the carnage taking place in many of
the Nation's major urban centers.
H.R. 5092 was introduced by Mr. Coble and Mr. Scott as a bipartisan
attempt to address enforcement issues raised during ATF oversight
hearings conducted by the Judiciary Subcommittee on Crime, Terrorism,
and Homeland Security. Specifically, those hearings focused on ATF's
Richmond gun show enforcement program and generally on ATF's licensing
and revocation authority over Federal Firearms Licensees.
The bill addresses a number of issues relating to ATF's enforcement
authority, including authorization of civil penalties (e.g., fines and
suspensions); creation of independent Administrative law Judges to hear
enforcement cases; definition of serious and non-serious violations;
DOJ Inspector General investigation of ATF gun show enforcement
program; limitation on ATF authorities; clarification of several
enforcement regulations; and, most significantly, modification of the
requisite intent for violations.
The bill provides in Sec. 4, entitled ``Definition of Willfully,''
that ``willfully'' is defined as: ``intentionally, purposely, and with
the intent to act in violation of a known legal duty. ``
My concern with this provision of the bill is that it defines
``willfully'' to impose a much higher standard of proof upon law
enforcement officials than currently. There does not appear to be any
compelling reason for increasing the government's evidentiary burden at
this time. The definition of willfullness is well-settled in the law
and means that defendant knew his conduct was unlawful; not that he
knew of the specific statute he is accused of violating or had the
specific intent to violate that precise provision.
Mr. Speaker, changing the evidentiary standards governing elements of
penal offenses should be done sparingly and with the utmost care. This
is particularly true where, as here, we do not have the benefit of the
considered views of thoughtful criminal law scholars, experienced
prosecutors and police officers with front-line experience, or the
Department of Justice.
The redefinition of ``willfully'' contained in the bill illustrates
my concern. As I noted, the bill defines willfully as ``intentionally,
purposely, and with the intent to act in violation of a known legal
duty.'' This definition, however, has been repeatedly rejected by the
Federal courts. Bryan v. U.S., 524 U.S. 184 (1998); U.S. v. Andrade,
135 F.3d 104 (1st Cir. 1998); U.S. v. Allah, 130 F.3d 33 (2d Cir.
1997); U.S. v. Collins, 957 F.2d 72 (2d. 1992)
In the Bryan case, the defendant was convicted of willfully dealing
in firearms without a Federal license. Specifically, the defendant did
not have a Federal firearms license; he used ``so-called ``straw
purchasers'' in Ohio to acquired pistols he could not have bought
himself; that he knew the straw purchasers made false statements when
purchasing the guns; that defendant assured the straw purchasers that
he would file off the serial numbers; and that defendant resold the
guns on Brooklyn street corners known for drug dealing. Despite this
conduct, defendant claimed that he could not be convicted under the
Federal firearms laws unless the government proved he knew of the
Federal licensing requirement. The Supreme Court rejected this claim,
stating:
``the willfulness requirement . . . does not carve out an
exception to the traditional rule that ignorance of the law
is no excuse; knowledge that the conduct is unlawful is all
that is required.'' 524 U.S. at 193.
Similarly, in another case, U.S. v. Collins, the Second Circuit
rejected the argument that willfully requires proof that defendant had
specific knowledge of the Federal firearms license requirements,
stating:
``[T]he element of willfulness not contained in
Sec. 922(a)(l) was meant to be read broadly to require only
that the government prove that defendant's conduct was
knowing and purposeful and that the defendant intended to
commit an act which the law forbids.'' 957 F.2d at 76.
According to the court, the government was not required to prove more
than just the defendant's general knowledge that he or she is violating
the law.'' Id. at 75.
Other courts have reached similar conclusions and I list them in my
statement. The point, Mr. Speaker, is that the Federal firearms license
statute is and has been an important tool for law enforcement to crack
down on the illegal trafficking in firearms and the wanton violence
this conduct exacerbates. I do not believe that a compelling case has
been made on this record to take this tool away from law enforcement.
Neither does the American Bar Association nor several former directors
of the ATF. Therefore, I would urge my colleagues to vote against the
bill.
Mr. VAN HOLLEN. Mr. Speaker, I yield back the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Wisconsin (Mr. Sensenbrenner) that the House suspend the
rules and pass the bill, H.R. 5092, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of
those present have voted in the affirmative.
Mr. VAN HOLLEN. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this question will
be postponed.
____________________