[Congressional Record (Bound Edition), Volume 152 (2006), Part 14]
[House]
[Pages 19226-19235]
[From the U.S. Government Publishing Office, www.gpo.gov]




     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

[[Page 19227]]

     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:
       ``(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.

[[Page 19228]]


  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 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

[[Page 19229]]

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 
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.

[[Page 19230]]

  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.
       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 percent of our 
     nation's gun dealers supply nearly 60 percent 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

[[Page 19231]]

     ``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 
     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 percent of our 
     nation's gun dealers supply nearly 60 percent 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.

[[Page 19232]]

       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 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.

[[Page 19233]]

     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 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

[[Page 19234]]

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, 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

[[Page 19235]]

     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.

                          ____________________