[House Report 109-672]
[From the U.S. Government Publishing Office]
From the House Reports Online via GPO Access
[wais.access.gpo.gov]
109th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 109-672
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BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES (BATFE)
MODERNIZATION AND REFORM ACT OF 2006
_______
September 21, 2006.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 5092]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 5092) to modernize and reform the Bureau of Alcohol,
Tobacco, Firearms, and Explosives, having considered the same,
report favorably thereon with an amendment and recommend that
the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
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, or if the
violation is that the licensee has failed to have secure gun
storage or safety devices available at any place in which
firearms are sold under the license to persons who are not
licensees (except because of theft, casualty loss, consumer
sales, back orders from a manufacturer, or any other similar
reason beyond the control of the licensee)--
``(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--
``(i) the licensee or the principal owner of the business
subject to the license has been indicted and charged with a
criminal violation of this chapter; and
``(ii) 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--
``(i) the licensee or the principal owner of the business
subject to the license has been indicted and charged with a
criminal violation of this chapter; and
``(ii) the continued operation by the licensee of the
business poses an immediate and grave threat to public safety.
``(E) The action of an administrative law judge under this subsection
shall be considered final agency action for all purposes, and may be
reviewed only as provided in subsection (f).
``(4) This subsection shall not be interpreted to affect the
authority of the Attorney General under section 922(t)(5).
``(f)(1) Within 60 days after a party receives a notice issued under
subsection (d)(3) of a decision to deny a license, or a notice issued
under subsection (e)(3)(C) of a determination to impose a civil money
penalty or to suspend or revoke a license, the party may file a
petition with the United States district court for the district in
which the party resides or has a principal place of business for a de
novo review of the decision or determination.
``(2) In a proceeding conducted under this paragraph, the court
shall, on application of a party, consider any evidence submitted by
the parties to the proceeding whether or not the evidence was
considered at the hearing held under subsection (d)(3) or (e)(3).
``(3) If the court decides that the decision or determination was not
authorized, the court shall order the Attorney General to take such
action as may be necessary to comply with the judgment of the court.
``(4) If criminal proceedings are instituted against a licensee
alleging any violation of this chapter or of a regulation prescribed
under this chapter, and the licensee is acquitted of the charges, or
the proceedings are terminated, other than upon motion of the
Government before trial on the charges, the Attorney General shall be
absolutely barred from denying a license under this chapter, suspending
or revoking a license granted under this chapter, or imposing a civil
money penalty under subsection (e), if the action would be based in
whole or in part on the facts which form the basis of the criminal
charges.
``(5) The Attorney General may not institute a proceeding to suspend
or revoke a license granted under this chapter, or to impose a civil
money penalty under subsection (e), more than 1 year after the filing
of the indictment or information.''.
(b) Conforming Amendments.--
(1) 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.''.
(2) Elimination of redundant penalty.--Section 924 of such
title is amended by striking subsection (p).
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) 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.''.
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. 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.
Purpose and Summary
H.R. 5092 reforms and modernizes the Bureau of Alcohol,
Tobacco, Firearms and Explosives' (``BATFE'') enforcement
authority. In the 109th Congress, the Subcommittee on Crime,
Terrorism and Homeland Security conducted extensive oversight
hearings on BATFE's management and enforcement activities. Such
oversight has been long overdue given BATFE's mixed enforcement
record. In response to specific concerns identified during the
oversight hearings, Subcommittee Chairman Coble and Ranking
Member Scott crafted a comprehensive reform measure which
includes: (1) authorization of graduated penalties and civil
penalties (e.g. fines and suspensions); (2) creation of
independent administrative law judges to hear enforcement
cases; (3) a clarification on the definition of the requisite
state of mind for civil violations; (4) the establishment of
investigative guidelines; (5) request that the Department of
Justice Inspector General investigate BATFE's gun show
enforcement practices; and (6) clarification of several
enforcement regulations.
Background and Need for the Legislation
H.R. 5092 was introduced on April 5, 2006, by Subcommittee
Chairman Coble and Ranking Member Scott as a bipartisan attempt
to address issues raised during the BATFE oversight hearings.
Earlier this year, the Subcommittee on Crime, Terrorism and
Homeland Security conducted three oversight hearings regarding
the BATFE's investigation and enforcement activities. This
legislation addresses concerns raised at those hearings. The
Subcommittee, by voice vote, reported the bill favorably to the
full Committee on May 3, 2006.
The oversight hearings held by the Subcommittee raised
serious concerns relating to the BATFE's: allocation of
resources; BATFE's licensing procedure and enforcement of
regulations against licensees; criminal investigation
techniques, including questionable stops, searches and seizures
of firearm purchasers and Federal firearm licensees (``FFL'');
and the lack of consistent law enforcement policies and
procedures among the BATFE's field offices and central
management.
The Subcommittee's oversight hearings revealed the need
for: (1) a graduated penalty system in title 18 U.S.C.
Sec. 923, which includes civil penalties, based on the degree
of risk of harm that the FFL's violation poses to others; (2)
establishing a system of neutral administrative law judges to
review the licensing decisions of the BATFE; (3) establishing
investigative guidelines similar to those of the Federal Bureau
of Investigation and Drug Enforcement Agency; and (4) other
modifications to Federal law to ensure that American citizens
receive due process of law.
CIVIL PENALTIES
Section 2 of H.R. 5092 establishes a graduated penalty
system under 18 U.S.C. Sec. 923, which includes civil
penalties, based on the degree of risk of harm that the FFL's
violation poses to others. For too many years BATFE has labored
under a restrictive enforcement scheme which forces BATFE to
either revoke a license or do nothing at all. This bill
provides the BATFE with graduated sanctions so that FFLs will
face a full range of possible sanctions, including civil
penalties, suspensions and the ultimate penalty--revocation of
their licenses. Any sanction is based on whether the violation
is ``serious,'' those that pose a risk to the public, or are
``minor violations,'' those that do not pose a risk of harm to
the public. No longer will BATFE have to cajole licensees to
comply or threaten them with heavy-handed revocation
proceedings; instead, the BATFE will be able to seek a penalty
that reflects the infraction. The bill also sets reasonable
penalty caps: $5,000 for minor violations, and $15,000 for
serious violations. Further, repeat offenders who commit minor
violations can eventually have their license revoked. Serious
violations will also result in revocation.
FIVE YEAR STATUTE OF LIMITATIONS ON VIOLATIONS
Section 2 of the bill sets out a five year statute of
limitations for enforcement of violations, but extends that
period if a licensee obstructs discovery of the violation. If
the licensee has not violated the law for five years, there is
no need to subject the licensee to enforcement action. The
Federal criminal code imposes a five year statute of
limitations for criminal offenses and the tax code imposes a
three year statute of limitation for felonies and six years set
for serious felonies, all from the date of occurrence of the
violation.
REQUIREMENT OF DE NOVO JUDICIAL REVIEW
Section 3 clarifies congressional intent with respect to de
novo judicial review. As there has been some uncertainty among
the courts in reenacting this provision, the Committee approves
the interpretation in Willingham Sports, Inc. v. Bureau of
Alcohol, Tobacco, Firearms and Explosives, 348 F.Supp.2d 1299,
1306, n.12 (S.D. Ala. 2004) (``no deference must be accorded to
the administrative proceedings . . . To the extent that the
BATFE argues that the Federal court must uphold the agency
decision as long as there is substantial evidence to support
it, the Court cannot agree, as such a formulation would
contravene the `de novo' statutory language'').
NEED TO DEFINE ``WILLFULLY''
The Committee discovered examples of the BATFE, revoking
FFL licenses based on minuscule clerical errors. This
demonstrates the need to require the BATFE to prove that the
licensee knowingly and intentionally violated the Gun Control
Act.
In Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492 (7th
Cir. 2006), (Gun World is the trade name for the FFL at issue
in this case), the Court of Appeals upheld the revocation of
Gun World's license by the BATFE based on clerical errors
contained in 12 out of the 880 BATFE 4473 Forms. Whenever a
firearm is sold, a dealer is required by law to fill out a
``Form 4473.'' Gun World's 4473 documents were maintained as
follows:
On six forms, Gun World omitted the type of identification
used by the buyer (although the type of identification was
known from another document); on two forms, Gun World's
salesperson omitted his signature and the date of the transfer
(although the information was on another document); on two
forms the buyer did not state whether he had ever been
adjudicated mentally defective or been committed to a mental
institution (although in both instances he was not, and that
was known to Gun World); on one form, Gun World omitted the
initial NICS response (although the form also indicated an
approval number); and on one form, the firearm manufacturer was
not expressly stated (although it was known by the serial
number and model).
Gun World prepared approximately 880 ``Forms 4473'', and
only 12 of those documents contained alleged errors or
omissions. Thus, there were omissions on 1.4 percent of Gun
World's Forms.
In the period from January, 1999 through February, 2000,
Form 4473 contained 39 blocks for recording 58 items of
information (legal alien purchasers, are required to provide an
additional four items of information). Thus, for approximately
880 Form 4473s, there were approximately 34,320 blocks to be
completed or approximately 51,240 items of information to be
provided.
On the 12 Forms on which BATFE found omissions, Gun World
failed to complete, or to ensure that the purchaser completed,
16 blocks; i.e., to provide 19 items of
information.Accordingly, there were omissions on a minuscule .05
percent (5/100 percent) of the blocks or .04 percent (4/100 percent) of
the items of information on Gun World's Form 4473s. The experience of
Gun World demonstrates why Congress needs to establish a ``willfully''
standard for civil actions against FFLs.
Section 4 establishes a definition of the term
``willfully'' for purposes of 18 U.S.C. Sec. 923(e). The
purpose of the definition is to clarify and codify Congress'
intent when it enacted the Firearms Owners Protection Act of
1986 (``FOPA''), i.e., to ensure that licenses are not revoked
for inadvertent or unintentional errors, but only for knowing,
intentional actions by a licensee. It's entirely reasonable to
require the government to prove bad intent (knowledge of the
law, and the intent to violate it) before putting a dealer out
of business or under this legislation imposing stiff fines or a
license suspension. However, a dealer cannot evade its
responsibilities by intentionally ignoring the law, or simply
stating that he or she was unaware of the requirements of the
law. The doctrine of ``willful blindness'' would still apply
under this new definition of ``willful.'' A FFL's signing of a
certification that he or she has read and is familiar with the
rules applicable to his or her license issuance, is prima facie
evidence that he or she knows and understands his or her
licensee duties.
The Committee recognizes that, despite the best efforts of
a law-abiding business person, errors will occur and the
Committee believes that mere human error should not deprive a
licensee of his or her livelihood.\1\ This definition is
intended to reverse court decisions that have interpreted
``willfully'' (as enacted by the FOPA) not to require proof
that the licensee knew of his legal duty and intentionally
disregarded that duty: see e.g., Appalachian Resources Dev.
Corp. v. McCabe, 387 F.3d 461 (6th Cir. 2004); Stein's Inc. v.
Blumenthal, 649 F.2d 463 (7th Cir. 1980); Article II Gun Shop,
Inc. v. Gonzales, 441 F.3d 492 (7th Cir. 2006); Lewin v.
Blumenthal, 590 F.2d 268 (8th Cir. 1979); Perri v. Dep't of
Treasury, 637 F.2d 1332 (9th Cir. 1981); Cucchiara v. Secretary
of the Treasury, 652 F.2d 28 (9th Cir. 1981); and Willingham
Sports, Inc. v. BATFE, 415 F.3d 1274 (11th Cir. 2005).
---------------------------------------------------------------------------
\1\As Kennedy, J. has noted:
We all tend toward myopia when looking for our own erros. Every
lawyer and every judge can recite examples of documents that they
wrote, checked, and doublechecked, but that still contained glaring
errors.
Groh v. Ramirez, 540 U.S. 551, 568 (2004) (Kennedy, J., disenting).
---------------------------------------------------------------------------
The Subcommittee received testimony that the BATFE treats
virtually all errors in dealers records, no matter how few or
how minor, as willful violations. Any error may result in
license revocation. For example, a witness cited the fact that
a licensee received a revocation notice for a ``Y'' or an ``N''
instead of writing out ``Yes'' or ``No'' on a firearms
transaction form. Another revocation notice cited the failure
of a firearms purchaser to identify the county of residence,
although the purchaser listed the city of residence. The
Committee also received testimony that BATFE cited violations
from 10 or 20 years earlier as supporting a revocation notice.
These acts do not constitute the ``willful'' standard
Congress adopted in the FOPA. The Senate Judiciary Committee
Report stated, the purpose of adding ``willfully'' to the
license revocation procedure ``is to ensure that licenses are
not revoked for inadvertent errors or technical mistakes.''\2\
But BATFE continues to refute this interpretation. In fact, in
one case, BATFE argued to the court that Congress' addition of
the word ``willfully'' to the license revocation statute was
``without practical significance.''
---------------------------------------------------------------------------
\2\S. Rep. No. 98-583 at 88.
---------------------------------------------------------------------------
GUN SHOW INSPECTOR GENERAL REPORT
The Subcommittee on Crime's oversight hearings reviewed the
BATFE's activities related to Richmond, Virginia gun show
operations. The testimony showed that between May of 2004 and
August of 2005, BATFE conducted a series of eight gun show
enforcement operations in the Richmond area. BATFE's
enforcement activity had such a chilling effect on lawful
purchases by legitimate customers exercising their Second
amendment rights, that many potential purchasers simply walked
away from the transaction as a result of the wait time.
During these gun shows, BATFE admitted to stopping and
interviewing approximately 206 individuals as a result of their
attendance or purchase of a firearm at the gun show.
Additionally, 50 individuals had their firearms seized by BATFE
and were provided with a letter indicating that these
individuals may have knowingly made a false statement to a
firearms dealer, a crime punishable by imprisonment for up to
five years. These 50 individuals were ordered to appear at the
local BATFE office to discuss their transactions and were
warned that failure to appear could result in a warrant for
arrest.
BATFE's allocation of resources; its gun enforcement
program in Richmond and other cities has raised serious
questions that the Inspector General needs to review. Section 6
of H.R. 5092 contains a provision requiring the Inspector
General to conduct an oversight report on BATFE's operations.
The Inspector General's report will help us to examine other
critical issues and ensure that BATFE remains focused on its
mission.
LIQUIDATION OF INVENTORY
Section 8 of the bill allows a licensee whose license was
terminated or revoked 60 days to liquidate his or her
inventory--dispose, sell or otherwise legally transfer
inventory to purchasers. This provision simply allows a dealer
to close down the business in an orderly manner. The licensee
must still comply with all applicable law and regulations,
including the normal background check and record-keeping
requirements. If the licensee does not, he or she is subject to
graduated sanctions as set out in section 2 of the bill.
hearings
The Committee on the Judiciary held no hearings
specifically on H.R. 5092. However, prior to H.R. 5092 being
introduced, the Subcommittee on Crime, Terrorism and Homeland
Security conducted three oversight hearings regarding BATFE's
actions.
The first hearing was held on February 15, 2006, and the
following witnesses appeared: Annette Gelles, Owner, Showmaster
Gun Shows; James Lalime, Gun Salesman; John White, Owner, The
Gunsmith; and Suzanne McComas, Licensed Field Investigator in
the State of New York. The second hearing was held on February
28, 2006, and received testimony from three witnesses: Michael
R. Bouchard, Assistant Director (Field Operations), Bureau of
Alcohol, Tobacco, Firearms and Explosives; Lt. Col. D.A.
Middleton, Deputy Chief of Police, Henrico County Police
Department; and Major David McCoy, City of Richmond Police
Department. The final hearing took place on March 28, 2006, at
which the following witnesses testified: Audrey Stucko, Deputy
Assistant Director for Enforcement Programs & Services, Bureau
of Alcohol, Tobacco, Firearms, and Explosives; Richard
Gardiner, Attorney at Law in Virginia; Lt. Michael Lara,
Officer, City of Tucson Police Department: and M. Kristen Rand,
Legislative Director, Violence Policy Center.
H.R. 5092 addresses concerns that were raised at each of
those hearings.
Committee Consideration
On May 3, 2006, the Subcommittee on Crime, Terrorism, and
Homeland Security met in open session and ordered favorably
reported the bill H.R. 5092, by voice vote, a quorum being
present. On September 7, 2006, the Committee met in open
session and ordered the bill H.R. 5092 favorably reported by
voice vote, a quorum being present.
Vote of the Committee
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee notes that there
were the following roll call votes occurred during the
committee's consideration of H.R. 5092.
Date: 9-7-06
Rollcall No. 2
Subject: Roll to record presence of Members to consider
amendments to H.R. 5092--there were 14 Members present.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Hyde........................ ........... ........... ............
Mr. Coble....................... ........... ........... X
Mr. Smith....................... ........... ........... X
Mr. Gallegly.................... ........... ........... ............
Mr. Goodlatte................... ........... ........... ............
Mr. Chabot...................... ........... ........... ............
Mr. Lungren..................... ........... ........... ............
Mr. Jenkins..................... ........... ........... X
Mr. Cannon...................... ........... ........... X
Mr. Bachus...................... ........... ........... ............
Mr. Inglis...................... ........... ........... X
Mr. Hostettler.................. ........... ........... ............
Mr. Green....................... ........... ........... ............
Mr. Keller...................... ........... ........... X
Mr. Issa........................ ........... ........... ............
Mr. Flake....................... ........... ........... ............
Mr. Pence....................... ........... ........... ............
Mr. Forbes...................... ........... ........... ............
Mr. King........................ ........... ........... X
Mr. Feeney...................... ........... ........... X
Mr. Franks...................... ........... ........... ............
Mr. Gohmert..................... ........... ........... ............
Mr. Conyers..................... ........... ........... X
Mr. Berman...................... ........... ........... ............
Mr. Boucher..................... ........... ........... X
Mr. Nadler...................... ........... ........... ............
Mr. Scott....................... ........... ........... X
Mr. Watt........................ ........... ........... ............
Ms. Lofgren..................... ........... ........... ............
Ms. Jackson Lee................. ........... ........... ............
Ms. Waters...................... ........... ........... ............
Mr. Meehan...................... ........... ........... ............
Mr. Delahunt.................... ........... ........... ............
Mr. Wexler...................... ........... ........... ............
Mr. Weiner...................... ........... ........... X
Mr. Schiff...................... ........... ........... ............
Ms. Sanchez..................... ........... ........... ............
Mr. Van Hollen.................. ........... ........... ............
Mrs. Wasserman Schultz.......... ........... ........... X
Mr. Sensenbrenner, Chairman..... ........... ........... X
---------------------------------------
Total....................... ........... ........... 14
------------------------------------------------------------------------
Rollcall No. 3
Subject: Weiner amendment (#313) to the Coble amendment in
the nature of a substitute to H.R. 5092, to strike lanaguage
that provides a Federal firearm licensee 60 days to liquidate
its inventory after going out of business, was not agreed to by
a rollcall vote of 4 ayes to 18 nays.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Hyde...................... ............ ............ ............
Mr. Coble..................... ............ X ............
Mr. Smith..................... ............ X ............
Mr. Gallegley................. ............ ............ ............
Mr. Goodlatte................. ............ ............ ............
Mr. Chabot.................... ............ X ............
Mr. Lungren................... ............ X ............
Mr. Jenkins................... ............ X ............
Mr. Cannon.................... ............ X ............
Mr. Bachus.................... ............ X ............
Mr. Inglis.................... ............ X ............
Mr. Hostlettler............... ............ X ............
Mr. Green..................... ............ ............ ............
Mr. Keller.................... ............ X ............
Mr. Issa...................... ............ ............ ............
Mr. Flake..................... ............ ............ ............
Mr. Pence..................... ............ ............ ............
Mr. Forbes.................... ............ X ............
Mr. King...................... ............ X ............
Mr. Feeney.................... ............ X ............
Mr. Franks.................... ............ X ............
Mr. Gohmert................... ............ X ............
Mr. Conyers................... X ............ ............
Mr. Berman.................... ............ ............ ............
Mr. Boucher................... ............ X ............
Mr. Nadler.................... ............ ............ ............
Mr. Scott..................... ............ X ............
Mr. Watt...................... ............ ............ ............
Ms. Lofgren................... ............ ............ ............
Ms. Jackson Lee............... ............ ............ ............
Ms. Waters.................... ............ ............ ............
Mr. Meehan.................... ............ ............ ............
Mr. Delahunt.................. ............ ............ ............
Mr. Wexler.................... ............ ............ ............
Mr. Weiner.................... X ............ ............
Mr. Schiff.................... X ............ ............
Ms. Sanchez................... ............ ............ ............
Mr. Van Hollen................ ............ ............ ............
Mrs. Wasserman Schultz........ X ............ ............
Mr. Sensenbrenner, Chairman... ............ X ............
-----------------------------------------
Total..................... 4 18 ............
------------------------------------------------------------------------
Date: 9-7-06
Rollcall No. 4
Subject: Weiner amendment (#314) to the Coble amendment in
the nature of a substitute to H.R. 5092, to strike language
regarding the Attorney General's pursuing civil sanctions
against a licensee which has also been a defendant in a
criminal action, was not agreed to by a roll call vote of 9
ayes to 16 nays.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Hyde...................... ............ ............ ............
Mr. Coble..................... ............ X ............
Mr. Smith..................... ............ X ............
Mr. Gallegly.................. ............ ............ ............
Mr. Goodlatte................. ............ ............ ............
Mr. Chabot.................... ............ X ............
Mr. Lungren................... ............ X ............
Mr. Jenkins................... ............ X ............
Mr. Cannon.................... ............ X ............
Mr. Bachus.................... ............ X ............
Mr. Inglis.................... ............ X ............
Mr. Hostettler................ ............ ............ ............
Mr. Green..................... ............ ............ ............
Mr. Keller.................... ............ X ............
Mr. Issa...................... ............ ............ ............
Mr. Flake..................... ............ ............ ............
Mr. Pence..................... ............ ............ ............
Mr. Forbes.................... ............ X ............
Mr. King...................... ............ X ............
Mr. Feeney.................... ............ X ............
Mr. Franks.................... ............ X ............
Mr. Gohmert................... ............ X ............
Mr. Conyers................... X ............ ............
Mr. Berman.................... ............ ............ ............
Mr. Boucher................... ............ X ............
Mr. Nadler.................... ............ ............ ............
Mr. Scott..................... X ............ ............
Mr. Watt...................... ............ ............ ............
Ms. Lofgren................... ............ ............ ............
Ms. Jackson Lee............... ............ ............ ............
Ms. Waters.................... X ............ ............
Mr. Meehan.................... X ............ ............
Mr. Delahunt.................. ............ ............ ............
Mr. Wexler.................... X ............ ............
Mr. Weiner.................... X ............ ............
Mr. Schiff.................... X ............ ............
Ms. Sanchez................... ............ ............ ............
Mr. Van Hollen................ X ............ ............
Mrs. Wasserman Schultz........ X ............ ............
Mr. Sensenbrenner, Chairman... ............ X ............
-----------------------------------------
Total..................... 9 16 ............
------------------------------------------------------------------------
Date: 9-7-06
Rollcall No. 5
Subject: Weiner amendment (#317) to the Coble amendment in
the nature of a substitute to H.R. 5092, to amend the maximum
amount of fines a Federal firearm licensee would be subject to
if it violated section 923 of title 18, U.S.C., which was not
agreed to by a roll call vote of 8 ayes to 20 nays.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Hyde...................... ............ ............ ............
Mr. Coble..................... ............ X ............
Mr. Smith..................... ............ X ............
Mr. Gallegly.................. ............ ............ ............
Mr. Goodlatte................. ............ ............ ............
Mr. Chabot.................... ............ X ............
Mr. Lungren................... ............ X ............
Mr. Jenkins................... ............ X ............
Mr. Cannon.................... ............ X ............
Mr. Bachus.................... ............ X ............
Mr. Inglis.................... ............ X ............
Mr. Hostettler................ ............ X ............
Mr. Green..................... ............ X ............
Mr. Keller.................... ............ X ............
Mr. Issa...................... ............ X ............
Mr. Flake..................... ............ X ............
Mr. Pence..................... ............ ............ ............
Mr. Forbes.................... ............ X ............
Mr. King...................... ............ X ............
Mr. Feeney.................... ............ X ............
Mr. Franks.................... ............ X ............
Mr. Gohmert................... ............ X ............
Mr. Conyers................... X ............ ............
Mr. Berman.................... ............ ............ ............
Mr. Boucher................... ............ X ............
Mr. Nadler.................... ............ ............ ............
Mr. Scott..................... ............ X ............
Mr. Watt...................... ............ ............ ............
Ms. Lofgren................... ............ ............ ............
Ms. Jackson Lee............... X ............ ............
Ms. Waters.................... X ............ ............
Mr. Meehan.................... ............ ............ ............
Mr. Delahunt.................. ............ ............ ............
Mr. Wexler.................... X ............ ............
Mr. Weiner.................... X ............ ............
Mr. Schiff.................... X ............ ............
Ms. Sanchez................... ............ ............ ............
Mr. Van Hollen................ X ............ ............
Mrs. Wasserman Schultz........ X ............ ............
Mr. Sensenbrenner, Chairman... ............ X ............
-----------------------------------------
Total..................... 8 20 ............
------------------------------------------------------------------------
Date: 9-7-06
Rollcall No. 6
Subject: Jackson Lee amendment to the Coble amendment in
the nature of a substitute to H.R. 5092, to strike the
definition of ``willfully'', which was not agreed to by a roll
call vote of 9 ayes to 17 nays.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Hyde...................... ............ ............ ............
Mr. Coble..................... ............ X ............
Mr. Smith..................... ............ X ............
Mr. Gallegly.................. ............ ............ ............
Mr. Goodlatte................. ............ ............ ............
Mr. Chabot.................... ............ X ............
Mr. Lungren................... ............ X ............
Mr. Jenkins................... ............ X ............
Mr. Cannon.................... ............ X ............
Mr. Bachus.................... ............ ............ ............
Mr. Inglis.................... ............ X ............
Mr. Hostettler................ ............ X ............
Mr. Green..................... ............ ............ ............
Mr. Keller.................... ............ ............ ............
Mr. Issa...................... ............ X ............
Mr. Flake..................... ............ X ............
Mr. Pence..................... ............ ............ ............
Mr. Forbes.................... ............ X ............
Mr. King...................... ............ X ............
Mr. Feeney.................... ............ X ............
Mr. Franks.................... ............ X ............
Mr. Gohmert................... ............ X ............
Mr. Conyers................... X ............ ............
Mr. Berman.................... ............ ............ ............
Mr. Boucher................... ............ X ............
Mr. Nadler.................... ............ ............ ............
Mr. Scott..................... X ............ ............
Mr. Watt...................... ............ ............ ............
Mr. Lofgren................... ............ ............ ............
Ms. Jackson Lee............... X ............ ............
Ms. Waters.................... X ............ ............
Mr. Meehan.................... ............ ............ ............
Mr. Delahunt.................. ............ ............ ............
Mr. Wexler.................... X ............ ............
Mr. Weiner.................... X ............ ............
Mr. Schiff.................... X ............ ............
Ms. Sanchez................... ............ ............ ............
Mr. Van Hollen................ X ............ ............
Mrs. Wasserman Schultz........ X ............ ............
Mr. Sensenbrenner, Chairman... ............ X ............
-----------------------------------------
Total..................... 9 17 ............
------------------------------------------------------------------------
Date: 9-7-06
Rollcall No. 7
Subject: Weiner amendment in the nature of a substitute to
H.R. 5092, to amend the Attorney General's ability to sanction
licensed dealers that violate Section 923 of title 18, U.S.C.,
which was not agreed to by a roll call vote of 10 ayes to 16
nays.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Hyde...................... ............ ............ ............
Mr. Coble..................... ............ X ............
Mr. Smith..................... ............ X ............
Mr. Gallegly.................. ............ ............ ............
Mr. Goodlatte................. ............ ............ ............
Mr. Chabot.................... ............ X ............
Mr. Lungren................... ............ X ............
Mr. Jenkins................... ............ X ............
Mr. Cannon.................... ............ X ............
Mr. Bachus.................... ............ ............ ............
Mr. Inglis.................... ............ X ............
Mr. Hostettler................ ............ X ............
Mr. Green..................... ............ ............ ............
Mr. Keller.................... ............ ............ ............
Mr. Issa...................... ............ X ............
Mr. Flake..................... ............ X ............
Mr. Pence..................... ............ ............ ............
Mr. Forbes.................... X ............ ............
Mr. King...................... ............ ............ ............
Mr. Feeney.................... ............ X ............
Mr. Franks.................... ............ X ............
Mr. Gohmert................... ............ X ............
Mr. Conyers................... X ............ ............
Mr. Berman.................... ............ ............ ............
Mr. Boucher................... ............ X ............
Mr. Nadler.................... ............ ............ ............
Mr. Scott..................... X ............ ............
Mr. Watt...................... ............ ............ ............
Ms. Lofgren................... ............ ............ ............
Ms. Jackson Lee............... X ............ ............
Ms. Waters.................... X ............ ............
Mr. Meehan.................... X ............ ............
Mr. Delahunt.................. ............ ............ ............
Mr. Wexler.................... X ............ ............
Mr. Weiner.................... X ............ ............
Mr. Schiff.................... X ............ ............
Ms. Sanchez................... ............ ............ ............
Mr. Van Hollen................ X ............ ............
Mrs. Wasserman Schultz........ X ............ ............
Mr. Sensenbrenner, Chairman... ............ X ............
-----------------------------------------
Total..................... 10 16 ............
------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 5092, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974.
H.R. 5092--Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE)
Modernization and Reform Act of 2006
Summary: H.R. 5092 would authorize the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (BATFE) to impose civil fines
for violations of firearms laws. It also would change the
procedures BATFE uses to approve applications for firearms
licenses and how the agency prosecutes license violations.
Finally, the bill would require administrative law judges to
review certain BATFE actions.
CBO estimates that implementing H.R. 5092 would cost about
$50 million over the 2007-2011 period, assuming appropriation
of the necessary amounts. Enacting the bill could affect
revenues, but CBO estimates that any such effects would not be
significant. H.R. 5092 contains no intergovernmental or
private-sector mandates as defined in the Unfunded Mandates
Reform Act (UMRA) and would impose no costs on state, local, or
tribal governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 5092 is shown in the following table.
The costs of this legislation fall within budget function 750
(administration of justice).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------
2007 2008 2009 2010 2011
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level................................. 7 10 11 12 12
Estimated Outlays............................................. 7 10 11 12 12
----------------------------------------------------------------------------------------------------------------
Basis of estimate
CBO estimates that implementing H.R. 5092 would cost about
$50 million over the 2007-2011 period. For this estimate, CBO
assumes that the necessary amounts will be appropriated near
the start of each fiscal year and that spending will follow
historical patterns for similar activities. In addition, CBO
estimates that enacting the bill would have an insignificant
effect on revenues.
Spending Subject to Appropriation
H.R. 5092 would require administrative law judges to review
BATFE actions that are disputed by firearms licensees and
applicants, including suspensions and revocations of licenses,
denials of applications, and fines. BATFE has 23 field
divisions in the United States and the agency expects it would
need to hire 20 judges to review actions in these divisions.
Based on information from BATFE, CBO expects that annual costs
for each administrative law judge would total about $325,000,
including salaries, benefits, and support expenses. Thus, we
estimate that costs relating to administrative law judges would
total $6.5 million a year when fully implemented in 2008.
BATFE also expects that it would need to hire one attorney
for each field division, mostly to prepare for hearings before
administrative law judges. Based on a cost of about $160,000
per attorney, including salaries, benefits, and support
expenses, CBO estimates that it would cost nearly $4 million
annually for the additional attorneys when fully implemented in
2008. In addition, we expect that BATFE would spend about $2
million in 2007 for enhanced computer systems, mostly to record
the new civil fines and implement the new administrative
procedures that would be established by H.R. 5092.
Revenues
BATFE currently lacks the authority to impose civil fines
on violators of firearms laws. Under the provisions of H.R.
5092, such violators could be subject to civil fines, so the
federal government might collect additional fines if the
legislation is enacted. Civil fines are recorded as revenues
and deposited in the Treasury. CBO expects that any additional
revenues would not be significant because the bill would limit
the amount of penalties that could be imposed on violators.
Intergovernmental and private-sector impact: H.R. 5092
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Estimate prepared by: Federal costs: Mark Grabowicz; Impact
on state, local, and tribal governments: Melissa Merrell;
Impact on the private sector: Amy Petz.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, of the Constitution.
Section-by-Section Analysis and Discussion
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short title
This section cites the short title of the bill 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
This section provides ATF with the ability to impose
graduated civil penalties against persons who violate any
statute or regulation in ATF's jurisdiction. The penalties are
graduated based on whether the violation is a ``serious'' or
``non-serious'' violation. A ``serious'' violation is defined
as one that; (1) 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 chapter
44; (2) obstructs or could have obstructed a bona fide civil or
criminal investigation; or (3) prevents or could have prevented
a licensee from complying with subsection (g)(7). A ``non-
serious'' violation is one that is not covered by the
definition for ``serious'' violation.
For a serious violation, ATF may impose a civil penalty of
not more than $2,500 for each violation, up to a maximum of
$15,000, suspend the license for up to 90 days, or revoke the
license. For a ``non-serious'' violation, ATF may impose a
civil penalty of not more than $1,000 for each violation, up to
a maximum of $5,000, and may suspend a license for not more
than 30 days if the licensee has at least 2 prior violations
(serious or non-serious). The violation-specific limitation is
designed to operate as a cap. ATF would have discretion to set
a graduated scale of penalties up to that maximum ($1,000 and
$2,500 per non-serious and serious violation, respectively) to
reflect the nature and severity of the violation, the size of
the firearms business operated by the licensee, and the prior
record of the licensee.
The section also bars ATF from initiating a civil
enforcement action after five years from the date of the
violation, except if the licensee intentionally obstructed
discovery of the violation. This section also reforms existing
law on due process hearings to permit a licensee subject to an
enforcement order to seek a hearing before an Administrative
Law Judge (ALJ) and sets deadlines for the completion of such a
hearing. by streamlining the hearing process and requiring an
independent Administrative Law Judge to conduct such a hearing,
the intent is to expedite resolution of enforcement matters and
to ensure a fair and consistent review of potential violations.
Any enforcement order would be stayed pending review. The ALJ's
determination would be subject to court review as provided in
existing law and would retain the de novo standard for district
court and appellate review.
Sec. 3. Consideration of federal firearms license applications
This section provides procedures for preliminary
consideration of license applications, and affords applicants
with an opportunity to supplement the application with
additional information and with the ability to request a
hearing before an ALJ.
Sec. 4. Definition of willfully
This section clarifies the definition of ``willfully'' when
establishing the intent for a violation. The intent standard,
as applied to licensees, would reflect the fact that licensees
are provided with extensive education and notice of all legal
and regulatory obligations. Thus, a violation of a known legal
obligation would require ATF to establish that the licensee was
aware of the obligation and intentionally or purposely violated
such an obligation.
Sec. 5. Establishment of formal inspection, examination, and
investigative guidelines
This section requires that ATF establish formal
investigative guidelines similar to those already applicable to
the Drug Enforcement Administration and the Federal Bureau of
Investigation.
Sec. 6. Review by the Inspector General of the Department of Justice of
the Gun Show Enforcement Program; Report
This section requires the Inspector General to conduct a
review of ATF's operation in order to assess the manner in
which ATF conducts its gun show enforcement program and blanket
residency checks of prospective and actual firearms purchasers.
Within one year of enactment, the IG is required to submit to
the House and Senate Judiciary Committees a report as to its
findings in its review.
Sec. 7. Limitations on use of firearms purchaser information
This section amends 18 U.S.C. section 923(g)(1)(D) to
ensure that AFT only shares information about individuals
gathered in its enforcement programs with other law enforcement
agencies when such agency certifies that the agency will not
disclose such information to any nongovernmental entity. The
intent in this provision is to endure that sharing of
information among law enforcement agencies does not result in
disclosures of private information to non-governmental entities
which are not involved in law enforcement efforts. Such a
prohibition would not extend to private contractors who work
for law enforcement agencies (e.g. intelligence support or
other law enforcement activities)
Sec. 8. Liquidation of inventory in federal firearms license
expiration, surrender or revocation cases
This section amends section 923 of title 18 to ensure that
a person has 60 days to liquidate the firearms inventory of a
business, which shall be extended for reasonable cause.
Sec. 10. Opportunity to cure violations after acquisition of firearms
business
This section amends section 923 of title 18 to provide a
purchaser of a firearms business with an opportunity to cure
any violations and limits ATF's ability to impose penalties for
violations that may have existed prior to a transferee assuming
control of the business.
Sec. 11. Standards or criminal violations of record-keeping
requirements
This section amends section 922(m) of title 18 to require
that any criminal violation of the record-keeping requirements
involve ``materially'' false entries, and ``materially''
significant entry. The punishment for such a violation is a one
year misdemeanor.
Sec. 12. Effective date
This section provides that the effective date of the Act is
to be 180 days after enactment.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 44--FIREARMS
* * * * * * *
Sec. 922. Unlawful acts
(a) * * *
* * * * * * *
(m) It shall be unlawful for any licensed importer, licensed
manufacturer, licensed dealer, or licensed collector knowingly
to make [any false entry] a materially false entry in, to fail
to make [appropriate entry] a materially significant entry in,
or to fail to [properly maintain] retain custody of, any record
which he is required to keep pursuant to section 923 of this
chapter or regulations promulgated thereunder.
* * * * * * *
Sec. 923. Licensing
(a) * * *
* * * * * * *
(d)(1) * * *
(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.
[(2)] (3) The Attorney General must approve or deny an
application for a license within the 60-day period beginning on
the date it is received. If the Attorney General fails to act
within such period, the applicant may file an action under
section 1361 of title 28 to compel the Attorney General to act.
If the Attorney General approves an applicant's application,
such applicant shall be issued a license upon the payment of
the prescribed fee.
(4) 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.
[(e) The Attorney General may, after notice and opportunity
for hearing, revoke any license issued under this section if
the holder of such license has willfully violated any provision
of this chapter or any rule or regulation prescribed by the
Attorney General under this chapter or fails to have secure gun
storage or safety devices available at any place in which
firearms are sold under the license to persons who are not
licensees (except that in any case in which a secure gun
storage or safety device is temporarily unavailable because of
theft, casualty loss, consumer sales, backorders from a
manufacturer, or any other similar reason beyond the control of
the licensee, the dealer shall not be considered to be in
violation of the requirement to make available such a device).
The Attorney General may, after notice and opportunity for
hearing, revoke the license of a dealer who willfully transfers
armor piercing ammunition. The Secretary's action under this
subsection may be reviewed only as provided in subsection (f)
of this section.
[(f)(1) Any person whose application for a license is denied
and any holder of a license which is revoked shall receive a
written notice from the Attorney General stating specifically
the grounds upon which the application was denied or upon which
the license was revoked. Any notice of a revocation of a
license shall be given to the holder of such license before the
effective date of the revocation.
[(2) If the Attorney General denies an application for, or
revokes, a license, he shall, upon request by the aggrieved
party, promptly hold a hearing to review his denial or
revocation. In the case of a revocation of a license, the
Attorney General shall upon the request of the holder of the
license stay the effective date of the revocation. A hearing
held under this paragraph shall be held at a location
convenient to the aggrieved party.
[(3) If after a hearing held under paragraph (2) the Attorney
General decides not to reverse his decision to deny an
application or revoke a license, the Attorney General shall
give notice of his decision to the aggrieved party. The
aggrieved party may at any time within sixty days after the
date notice was given under this paragraph file a petition with
the United States district court for the district in which he
resides or has his principal place of business for a de novo
judicial review of such denial or revocation. In a proceeding
conducted under this subsection, the court may consider any
evidence submitted by the parties to the proceeding whether or
not such evidence was considered at the hearing held under
paragraph (2). If the court decides that the Attorney General
was not authorized to deny the application or to revoke the
license, the court shall order the Attorney General to take
such action as may be necessary to comply with the judgment of
the court.
[(4) If criminal proceedings are instituted against a
licensee alleging any violation of this chapter or of rules or
regulations prescribed under this chapter, and the licensee is
acquitted of such charges, or such proceedings are terminated,
other than upon motion of the Government before trial upon such
charges, the Attorney General shall be absolutely barred from
denying or revoking any license granted under this chapter
where such denial or revocation is based in whole or in part on
the facts which form the basis of such criminal charges. No
proceedings for the revocation of a license shall be instituted
by the Attorney General more than one year after the filing of
the indictment or information.]
(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, or if the
violation is that the licensee has failed to have
secure gun storage or safety devices available at any
place in which firearms are sold under the license to
persons who are not licensees (except because of theft,
casualty loss, consumer sales, back orders from a
manufacturer, or any other similar reason beyond the
control of the licensee)--
(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--
(i) the licensee or the principal owner of
the business subject to the license has been
indicted and charged with a criminal violation
of this chapter; and
(ii) 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--
(i) the licensee or the principal owner of the
business subject to the license has been indicted and
charged with a criminal violation of this chapter; and
(ii) 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).
(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.
(f)(1) Within 60 days after a party receives a notice issued
under subsection (d)(4) 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)(4) or (e)(3).
(3) If the court decides that the decision or determination
was not authorized, the court shall order the Attorney General
to take such action as may be necessary to comply with the
judgment of the court.
(4) If criminal proceedings are instituted against a licensee
alleging any violation of this chapter or of a regulation
prescribed under this chapter, and the licensee is acquitted of
the charges, or the proceedings are terminated, other than upon
motion of the Government before trial on the charges, the
Attorney General shall be absolutely barred from denying a
license under this chapter, suspending or revoking a license
granted under this chapter, or imposing a civil money penalty
under subsection (e), if the action would be based in whole or
in part on the facts which form the basis of the criminal
charges.
(5) The Attorney General may not institute a proceeding to
suspend or revoke a license granted under this chapter, or to
impose a civil money penalty under subsection (e), more than 1
year after the filing of the indictment or information.
(g)(1)(A) * * *
* * * * * * *
(D) At the election of a licensed collector, the annual
inspection of records and inventory permitted under this
paragraph shall be performed at the office of the Attorney
General designated for such inspections which is located in
closest proximity to the premises where the inventory and
records of such licensed collector are maintained. The
inspection and examination authorized by this paragraph shall
not be construed as authorizing the Attorney General to seize
any records or other documents other than those records or
documents constituting material evidence of a violation of law.
If the Attorney General seizes such records or documents,
copies shall be provided the licensee within a reasonable time.
The Attorney General may make available to any Federal, State,
or local law enforcement agency any information which he may
obtain by reason of this chapter with respect to the
identification of persons prohibited from purchasing or
receiving firearms or ammunition who have purchased or received
firearms or ammunition, together with a description of such
firearms or ammunition, and he may provide information to the
extent such information may be contained in the records
required to be maintained by this chapter, when so requested by
any Federal, State, or local law enforcement agency, 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.
* * * * * * *
(m) 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.
(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. 924. Penalties
(a) * * *
* * * * * * *
[(p) Penalties Relating To Secure Gun Storage or Safety
Device.--
[(1) In general.--
[(A) Suspension or revocation of license;
civil penalties.--With respect to each
violation of section 922(z)(1) by a licensed
manufacturer, licensed importer, or licensed
dealer, the Secretary may, after notice and
opportunity for hearing--
[(i) suspend for not more than 6
months, or revoke, the license issued
to the licensee under this chapter that
was used to conduct the firearms
transfer; or
[(ii) subject the licensee to a civil
penalty in an amount equal to not more
than $2,500.
[(B) Review.--An action of the Secretary
under this paragraph may be reviewed only as
provided under section 923(f).
[(2) Administrative remedies.--The suspension or
revocation of a license or the imposition of a civil
penalty under paragraph (1) shall not preclude any
administrative remedy that is otherwise available to
the Secretary.]
* * * * * * *
Markup Transcript
BUSINESS MEETING
THURSDAY, SEPTEMBER 7, 2006
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:07 a.m., in
Room 2141, Rayburn House Office Building, the Honorable F.
James Sensenbrenner, Jr. (Chairman of the Committee) presiding.
[Intervening business.]
Chairman Sensenbrenner. The next item on the agenda is the
adoption of H.R. 5092, the ``Bureau of Alcohol, Tobacco,
Firearms and Explosives Modernization Reform Act.''
[The bill, H.R. 5092, follows:]
Chairman Sensenbrenner. The chair recognizes the gentleman
from North Carolina, Mr. Coble, the chair of the Subcommittee
on Crime, Terrorism, and Homeland Security, for a motion.
Mr. Coble. Mr. Chairman, the Subcommittee on Crime,
Terrorism, and Homeland Security reports favorably the bill,
H.R. 5092, and moves its favorable recommendation to the full
House.
Chairman Sensenbrenner. Without objection, H.R. 5092 will
be considered as read and open for amendment at any point.
The chair recognizes the gentleman from North Carolina to
strike the last word.
Mr. Coble. I thank the Chairman.
Mr. Chairman, the Subcommittee on Crime, Terrorism, and
Homeland Security reports favorably the bill, H.R. 5092, the
``Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE)
Modernization and Reform Act of 2006,'' which was introduced by
the gentleman from Virginia, Representative Scott, and me.
The Subcommittee on Crime, Terrorism, and Homeland Security
conducted a series of three oversight hearings regarding the
BATFE's investigation and enforcement activities. These
hearings raised concerns over the BATFE's allocation of
resources, investigation techniques, and lack of consistent law
enforcement policies and procedures among the BATFE's field
offices and central management.
The hearings, furthermore, revealed the need for, one, a
graduated penalty system in Title 18, U.S. Code Section 923,
including civil penalties, based on the degree of risk or harm
that the dealer's violation posed to others; two, establish a
system of neutral administrative law judges to review the
license and the decisions of BATFE; three, establish
investigative guidelines similar to those of the Federal Bureau
of Investigation and the Drug Enforcement Agency; and, finally,
other modifications to the Federal laws to ensure that American
citizens receive due process of the law.
H.R. 5092 is a bipartisan attempt to address issues raised
during the BATFE oversight hearings.
The bill authorizes civil penalties, including fines and
suspensions, for dealers who violate the Gun Control Act,
creates independent administrative law judges to hear
enforcement cases, defines serious and non-serious violations,
clarifies the requisite intent for civil violations,
establishes BATFE investigative guidelines, requires the DOJ
inspector general to investigate the BATFE gun show enforcement
program, and limits the BATFE's authority and clarifies several
enforcement regulations.
On May 3, 2006, the Subcommittee favorably reported the
bill, without amendment, and I hope my colleagues in the full
Committee will support this important bill.
I would yield back.
Chairman Sensenbrenner. For what purpose does the gentleman
from Virginia, Mr. Scott, seek recognition?
Mr. Scott. Yes, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, thank you for holding this markup on H.R.
5092, the ``Bureau of Alcohol, Tobacco, Firearms and Explosives
Modernization and Reform Act.'' I am pleased to join Chairman
Coble in presenting the substitute for markup by this
Committee.
And I want to express my appreciation for the bipartisan
and open process under which Chairman Coble and the chief
counsel, Michael Volkov, and my counsel, Bobby Vassar,
conducted consideration and development of the bill.
I understand from my counsel that they have met with other
Judiciary Committee Members and staff, ATF and the Department
of Justice staff, handgun safety group representatives and with
representatives of offices of mayors of New York and Boston, as
well as with the National Rifle Association and other gun
rights advocates, and they have exchanged information and ideas
with all on a bipartisan basis.
There have been well over a dozen redrafts of the original
substitute before us. And while no participant got all he or
she wanted in the bill, all of the interests and concerns were
considered and the bill represents a reflection of the impact
of many of those considerations.
Mr. Chairman, I joined Chairman Coble in developing the
bill based on his representation to me that it would focus on
improving due process and effectiveness of the ATF enforcement
of Federal gun laws and regulations.
Currently, there are complaints, on the one hand, that the
enforcement system treats firearm licensees unfairly by
focusing too much on minor technical violations, with the
threat of revocation on each one. And if a violation citation
is challenged, the system perpetuates a further appearance of
unfairness by using ATF employees, responsible to their
supervisors, to decide challenges ultimately subject to the
discretion of the director of ATF.
On the other hand, there are complaints that ATF is unable
to effectively impact licensees because its only effective
sanction is revocation and licensees know that they will not be
revoked for anything other than the most serious violations, so
they can be fairly loose with lesser violations.
Most of these violations receive only warnings or
conferences with ATF officials. And where a dealer's license is
revoked for what is perceived to be a relatively minor
violation, even if it is the ATF's only way of showing that it
is willing to revoke for such violations, it generates
perceptions of unfairness and breeds disrespect for the
regulatory process.
Moreover, with the limited resources to cover the large
number of licensees, there are complaints that most violators
only get a slap on the wrist or nothing at all, because ATF is
unable to conduct a sufficient number of inspections.
So bad dealers often are able to operate with relative
impunity, endangering the public and giving the ATF and
industry a bad name.
H.R. 5092 seeks to address these problems with a system of
intermediate sanctions, applied on a graduated basis, for
violations the ATF designates as minor through its regulations
and in addition to current sanctions, such as warnings and
required conferences, the bill makes available to the ATF fines
up to a $1,000 each, with a cumulative total of $5,000 per
inspection process.
In addition to such fines, after two minor violations,
suspensions of up to 30 days are available.
For violations designated as serious by the ATF, by ATF
regulations in compliance with this act, fines up to $2,500 per
violation may be applied, up to a cumulative amount of up to
$15,000 per inspection process. In addition to such fines,
suspensions of up to 90 days or revocation are available.
To address the issues of due process in the context of
substantially heightened penalties for most violations, the
bill revamps the hearing process by requiring that hearings be
conducted by detached administrative law judges, with penalties
stayed during appeals, unless the attorney general establishes
that such a stay would pose an immediate and gave danger to the
public.
The bill redefines the term ``willfully'' to raise the
burden of proof for a violation in an effort to limit the
findings of guilt to knowing and intentional violations.
All of this is subject to the regulatory process, as well,
which should serve to further clarify what reflects knowing and
intentional acts or omissions.
In one area in the bill, we have agreed to revamp, in this
section, the section allowing for the liquidation of inventory
after revocation. In order to hold a business accountable to
Federal requirements during this period, the business will have
to be in at least provisional or, in other regulatory context,
legal and we have agreed to address this as the bill moves
forward.
The bill is a total revamp of the licensing and regulatory
system and I believe it will better ensure fairness, as well as
accountability and, ultimately, better assure public safety.
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Scott. Mr. Chairman, if I could just have 30 more
seconds.
Chairman Sensenbrenner. Without objection.
Mr. Scott. Accordingly, while I am open to proposals for
further improvement, I believe the bill is worthy of our
support in its current form.
Thank you, Mr. Chairman. I yield back.
Chairman Sensenbrenner. Without objection, all Members'
opening statements will appear in the record at this time.
[The opening statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary
Mr. Chairman, I move to strike the last word.
Thank you, Mr. Chairman and members of the Committee. 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, by striking
Sec. 4 of the bill.
H.R. 5092 was introduced by Chairman Coble and the Ranking Member,
Mr. Scott as a bipartisan attempt to address enforcement issues raised
during ATF oversight hearings conducted by the Subcommittee.
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. Chairman, 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)(1)
was meant to be read broadly to require only that the
government prove that defendant's conduct was knowing and
purposeful and that the defendant intended to commit an act
which the law forbids.'' 957 F.2d at 76.
According to the court, the government was not required to prove
more than just the defendant's general knowledge that he or she is
violating the law.'' Id. at 75.
Other courts have reached similar conclusions and I list them in my
statement. The point, Mr. Chairman, 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. Therefore, I would urge my colleagues to vote against the
bill.
Thank you. I yield the balance of my time.
Chairman Sensenbrenner. Are there any amendments?
The chair recognizes the gentleman from North Carolina, Mr.
Coble, for purposes of offering an amendment in the nature of a
substitute.
Mr. Coble. And I so offer that, Mr. Chairman.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. ``Amendment in the nature of a substitute to
H.R. 5092----
[The amendment offered by Mr. Coble and Mr. Scott follows:]
Mr. Coble. I ask unanimous consent, Mr. Chairman, that the
amendment be considered as read.
Chairman Sensenbrenner. Without objection, so ordered.
And the gentleman is recognized for 5 minutes.
Mr. Coble. Well, I failed to do that. Mr. Scott, I failed
to express my appreciation to you earlier, and Mr. Vassar, as
well, and to Mr. Volkov, on our side. This was a bipartisan
effort that was thoroughly and deliberately examined. As I
said, there were three hearings conducted.
Very briefly, let me tell you what appears in the amendment
in the nature of a substitute.
It modifies section 2 regarding graduated penalties by
expanding the list of possible violations that are serious,
changes existing law to allow governments to force licensees to
cease operations pending review of the administrative law judge
(ALJ) decision to revoke a license or suspend operations,
criminal indictment and where continued operation poses grave
risk to community safety.
It authorizes the ALJ to consider the size of the business
when setting a civil penalty, clarifies that gun storage or
safety device requirements are minor violations, as under
existing law.
Section 4 revises the definition of ``willful'' to ensure
that enforcement actions are directed against knowing and
intentional violations by a licensee and do not include good
faith mistakes or ministerial or administrative mistakes.
Section 5 expands investigative guidelines to address non-
firearms inspections and examinations.
Section 8 clarifies the 60-day limit within which a
licensee may continue to sell firearms.
Section E deletes former section 8, which would have
restricted the ATF authorities to prevent ATF from enforcement
of other criminal and civil laws beyond the Tobacco, Alcohol,
Firearms and Explosives venue.
And that, pretty clearly, I think, Mr. Chairman, explains
the amendment in the nature of a substitute.
And I yield back.
Chairman Sensenbrenner. Before continuing, the chair will
interrupt the proceedings to announce the presence in the room
of a number of members of the parliament of the Islamic
Republic of Afghanistan. And I will introduce them one by one
and apologize in advance if I am mispronouncing anybody's name.
Dr. Mohammad Salih Saljoqi, Mr. Noorolhaq Olomi, Mr. Zalmay
Mujadidi, Dr. Kabir Ranjbar, Mr. Bidar Zazai, Mr. Mohammad
Shaker Kargar, Mr. Ahmad Ali Jebraili, and Mr. Din Mohammad
Azimi.
This includes the second secretary of the parliament and
the chairs of the armed services, internal security, government
relations, and budget committee, the deputy chair of the
international relations committee, a member of the government
affairs committee, and the secretary of the religious affairs
and education committee.
[Applause.]
There are three staff Members who are accompanying them, a
program escort from the House Democracy Assistance Commission,
which is an arm of the U.S. House of Representatives, and three
interpreters.
We welcome you here, and we hope that you find that the way
American democracy works is open and transparent. We debate
vigorously. And we wish you well as you are establishing your
democracy in your country.
Thank you.
Mr. Conyers. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Michigan?
Mr. Conyers. I rise in opposition of the substitute
amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Conyers. I am opposed to the amendment for the same
reasons that I am opposed to the text of the underlying bill,
namely, because the amendment, as introduced, would largely
eliminate BATFE's current revocation powers, replace them with
minimal fines and temporary license suspensions.
And, additionally, this substitute fails to improve upon
the bill's current definition of serious versus minor offenses.
And, finally, the amendment fails to address the problem that
would require the bureau to automatically stay or postpone the
imposition of a fine or a suspension or revocation, pending
completion of an administrative hearing, no matter how
egregious the violation.
Now, what we have before us is one of the most amazing
pieces of work that this Committee has brought forward yet. We
all but eliminate the bureau's current authority to revoke the
Federal firearms licenses of corrupt dealers and would make it
virtually impossible for the bureau to shut down rogue gun
dealers who repeatedly violate the law.
It creates two serious new classifications of Federal gun
laws, the serious ones and the non-serious ones. And the
definitions are so vague that it would make enforcement, it
seems to me, extremely rare and would require the bureau to
automatically stay or postpone the imposition of a fine,
suspension or revocation, pending completion of an
administrative hearing, no matter how serious the violation.
The problem that this raises, for me, is that dangerous
firearms in the hands of violent criminals and, may I also add,
terrorists continue to be one of the most pressing concerns
facing our nation.
In the last year that it was recorded, 3,012 children and
teens were killed by gunfire in the United States, which comes
to about a child every 3 hours, eight children every day, 50
more every week.
In addition, American children are often at greater risk
for firearm related injuries and fatalities. Firearms were
reportedly used to kill 19 children in Great Britain, 57 in
Germany, 109 in France, 153 in Canada, but 5,285 in the United
States.
And so this substitute only compounds the problem that is
found in the original measure. I hope that we can see some kind
of a concern here about the incredible amount of deaths that
are taking place because of inadequate enforcement and I think
we are moving in the wrong direction.
I ask unanimous consent to have The Washington Post Sunday,
July 23rd, article by Amit Paley included in my comments.
And I return the balance of my time.
Chairman Sensenbrenner. Without objection, the extraneous
material will be included.
[The article follows:]
Chairman Sensenbrenner. Are there any second-degree
amendments to the amendment in the nature of a substitute
offered by the gentleman from North Carolina?
Mr. Weiner. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from New York seek recognition?
Mr. Weiner. First, I would like to strike the last word on
the amendment being offered by Mr. Coble.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Weiner. Mr. Chairman, it is puzzling to me what the
problem is that the Coble substitute or the base bill seeks to
resolve. It is certainly not that there have been an enormous
number of gun dealers that have had their license revoked.
According to the ATF, the last numbers we have in 2003,
they only sought to revoke 54 licenses in the entire country,
which represented about 2 percent of those that they inspected.
The ATF says that even the president system that is being
reformed, theoretically, because there is widespread and very
subjective enforcement going on by the ATF, ATF says that the
present system already makes it very, very difficult for them
to actually repeal anyone's license.
They say that the inspector general said that if they
proceeded on the present pace to do all of their revocations
they would like to do, it would take them 19 years to do them.
There are gun shops that are presently under the process to
be suspended that have been on appeal for years. You know,
there is one in San Laredo, California, where an ATF audit
found that 7,477 firearms had gone missing. Now, when I say
``gone missing,'' I mean that the paperwork that is required
under the law that we could say you don't want to keep anymore,
maybe that is the way we should go, had been lost.
That is under a process for suspension that has been going
on since 2004 and still the gun dealer continues to operate.
Now, I should point out that under the Coble substitute and
the base bill, that would be considered, in the words of the
bill, a minor offense, 7,400 missing or off-the-book
transactions would be redefined in this legislation as a minor
offense.
Which brings me to the second rationale for the bill, which
is that we have one bucket that we put all infractions in and
we should give the ATF more flexibility to actually be able to
decide what is the wheat and what is the chaff. And I think
that that is fair, but the way that the Coble bill does it is
by saying that everything is essentially a minor infraction.
Well, I would ask you if failure to do a background check
should be considered minor. Is failure to do 50 background
checks minor, failure to do a 100, failure to do any?
They all would be, under the Coble substitute, considered a
minor infraction. In fact, it is very interesting, in the Coble
substitute, you might be saying, ``Well, what does he consider
serious under the bill?''
If a dealer colludes with a gun trafficker. But if he says,
``I am not going to collude with anyone. I am just not going to
do any paperwork. I am not going to do any paperwork. Let
anyone who comes in here who wants--I am not going to do a
single one. I am not going to intentionally sell or collude
with someone, but I am not going to do any paperwork.''
Thousands and thousands and thousands of lost guns, which,
by the way, is how we track down terrorists, how we track down
criminals. Those would be considered minor infractions.
So it is not that the ATF is doing a lot of these
proceedings. They are doing very few. I gave you the
statistics. What this is really about is gutting the way the
ATF, as Mr. Conyers said, the ATF does its job.
Now, if you really wanted to clarify or modernize or
reform, would you put in language that repeals the penalties
enacted in 2005 for failure to provide gun safety locks with
your handgun? No. You are not trying to reform the ATF. You are
trying to gut handgun laws.
And you might disagree that we should provide safety locks,
that is fine, we can have that debate again, but let's call it
what it is. If you really are trying to reform the process,
then you would give the ATF some guidelines about penalties
that you think are more fair rather than saying wholesale
numbers of violations would be wiped off the books and be
something that the ATF can't pursue.
No one would ever accuse the ATF and the Bush
administration of being a ferocious tiger of enforcement.
You can look at some of the dealers that have been allowed
to proceed. You can look at the positions they have taken on
issues we are going to take up later, where they even stop
cities and States from trying to protect their citizens.
But, certainly, the ATF activities so far have not
demonstrated that they need this type of reform. If anything,
they need to be bolstered. But if we are going to have this
debate, let's have it in the context of a little more honesty
here.
This is not about reforming the ATF. This is about gutting
the gun laws.
And with that, I yield back the balance of my time.
Chairman Sensenbrenner. The bell has now rung, and, without
objection, the Committee will recess until 15 minutes after the
conclusion of the vote on the rule on the horse slaughter bill.
Members will please return promptly. We will be going from
the time we come back until about 1:30 or the completion of at
least this bill and the next bill. So we will be here until we
get this bill and the next bill out, whether it is 1:30 or
later.
The Committee stands recessed.
[Recess.]
Chairman Sensenbrenner. The Committee will be in order.
When the Committee recessed for the vote, pending was an
amendment in the nature of a substitute offered by the
gentleman from North Carolina, Mr. Coble.
Are there any second-degree amendments to the Coble
substitute amendment?
For what purpose does the gentleman from Tennessee seek
recognition?
Mr. Jenkins. Thank you, Mr. Chairman. To strike the last
word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Jenkins. And I yield to the gentleman from North
Carolina.
Mr. Coble. I thank the gentleman from Tennessee for
yielding.
Mr. Chairman, I won't take 5 minutes, but I just want to
respond to some of the problems that have been voiced.
As you all know, reasonable men and women can differ on
various issues, as we do often times in this Committee, and
there is nothing wrong with that. In fact, it is healthy.
But, Mr. Weiner, I hope I understood you correctly. If I
didn't, I will apologize. But I think you indicated that a
dealer who could not account for a gun would result in a minor
violation. This is incorrect. That would be a serious
violation.
Furthermore, you indicated, as I best recall, that if a
dealer did not conduct a background check, that, too, would be
classified as a minor violation. In truth, it would be a
serious violation.
And most importantly, ATF will define, in the regulation,
serious vs. non-serious violations.
And, finally, regarding the gun safety locks and storage,
the distinguished gentleman from Virginia, Mr. Scott, and I
agreed at the last markup to fix this issue and retain existing
penalties.
So, Mr. Chairman and colleagues, I think a lot that has
been said today is subject to interpretation. It is my belief
that the ATF has not been emasculated in any way by this bill
and to corroborate that, no one from the ATF has complained to
me about the bill. So apparently they don't feel that they have
been emasculated as a result thereof.
And as an aside, Mr. Chairman, this, in and of itself, does
not make a bill good, but now we have a 137 cosponsors,
Democrats and Republicans. So that indicates feel for the
Congress at-large.
And I thank the gentleman from Tennessee for yielding to
me.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Jenkins. Yes.
Chairman Sensenbrenner. Are there any amendments in the
second degree to the amendment in the nature of a substitute by
the gentleman from North Carolina?
Mr. Weiner. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from New York, Mr. Weiner, seek recognition?
Mr. Weiner. Mr. Chairman, I would make a point of order.
Is there a quorum present to consider amendments at this
point?
Chairman Sensenbrenner. The clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
Mr. Coble?
Mr. Coble. Present.
The Clerk. Mr. Coble, present.
Mr. Smith?
Mr. Smith. Present.
The Clerk. Mr. Smith, present.
Mr. Gallegly?
[No response.]
Mr. Goodlatte?
[No response.]
Mr. Chabot?
[No response.]
Mr. Lundgren?
[No response.]
Mr. Jenkins?
Mr. Jenkins. Present.
The Clerk. Mr. Jenkins, present.
Mr. Cannon?
[No response.]
Mr. Bachus?
[No response.]
Mr. Inglis?
Mr. Inglis. Present.
The Clerk. Mr. Inglis, present.
Mr. Hostettler?
[No response.]
Mr. Green?
[No response.]
Mr. Keller?
Mr. Keller. Present.
The Clerk. Mr. Keller, present.
Mr. Issa?
[No response.]
Mr. Flake?
[No response.]
Mr. Pence?
[No response.]
Mr. Forbes?
[No response.]
Mr. King?
[No response.]
Mr. Feeney?
Mr. Feeney. Present.
The Clerk. Mr. Feeney, present.
Mr. Franks?
[No response.]
Mr. Gohmert?
[No response.]
Mr. Conyers?
Mr. Conyers. Present.
The Clerk. Mr. Conyers, present.
Mr. Berman?
[No response.]
Mr. Boucher?
Mr. Boucher. Present.
The Clerk. Mr. Boucher, present.
Mr. Nadler?
[No response.]
Mr. Scott?
Mr. Scott. Present.
The Clerk. Mr. Scott, present.
Mr. Watt?
[No response.]
Ms. Lofgren?
[No response.]
Ms. Jackson Lee?
[No response.]
Ms. Waters?
[No response.]
Mr. Meehan?
[No response.]
Mr. Delahunt?
[No response.]
Mr. Wexler?
[No response.]
Mr. Weiner?
Mr. Weiner. Present.
The Clerk. Mr. Weiner, present.
Mr. Schiff?
[No response.]
Ms. Sanchez?
[No response.]
Mr. Van Hollen?
[No response.]
Mrs. Wasserman Schultz?
Ms. Wasserman Schultz. Present.
The Clerk. Mrs. Wasserman Schultz, present.
Mr. Chairman?
Chairman Sensenbrenner. Present.
The Clerk. Mr. Chairman, present.
Chairman Sensenbrenner. Are there Members in the chamber
who wish to record their presence?
The gentleman from Iowa, Mr. King?
Mr. King. Present.
The Clerk. Mr. King, present.
Chairman Sensenbrenner. The gentleman from Utah, Mr.
Cannon?
Mr. Cannon. Present.
The Clerk. Mr. Cannon, present.
Chairman Sensenbrenner. Further Members in the chamber who
wish to record their presence?
The clerk will report.
The Clerk. Mr. Chairman, there are 14 Members present.
Chairman Sensenbrenner. A reporting quorum is present--
excuse me, a working quorum is present.
For what purpose does the gentleman from New York, Mr.
Weiner, seek recognition?
Mr. Weiner. Mr. Chairman, just a point of clarification. So
that means that a sufficient number aren't here to vote on an
amendment, but just to discuss the amendments?
Chairman Sensenbrenner. No, a sufficient number are here to
discuss and vote on amendments, but not to report the bill.
Mr. Weiner. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Weiner. Weiner 313.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. ``Amendment to the amendment in the nature of a
substitute to H.R. 5092, offered by Mr. Weiner of New York.
Strike section 8''----
[The amendment offered by Mr. Weiner follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Weiner. Mr. Chairman, in my remarks about the Coble
substitute, I listed some of the things that lay bare the
notion that this is not an effort to reform the ATF, this is an
effort to gut their authority.
There are a few examples that make that more clear than
section 8. When the ATF goes in and takes action against a
dealer and says, ``We are going to take away your license to
operate,'' it says that you have got to say that they have a
period of time where they can dispense of their firearms in
their stock.
But, obviously, you still have to do the necessary
disclosures and the necessary recordkeeping.
What this section 8 does, if you read it carefully, is it
says that for 60 days after a license is revoked, 60 days after
you have fallen into that 1 percent category, you have gone
through these years of appeals and you have been whittled down
to--you are one of the very worst actors, by almost any
definition, you are one of the very worst actors, you have
lost--your license has been taken away, what section 8 of the
Coble substitute says is you can continue selling guns for 60
days thereafter, even if there is a risk to the public that the
ATF has determined by continuing to do that.
And this amendment would simply strike that. It would allow
the ATF to do what the ATF should be doing, which is deciding
who should be able to sell guns and who should not. And
particularly in this case, to have a 60-day fire sale of
weapons essentially being dumped by someone who we have already
concluded, by definition of the gentleman from North Carolina,
the gentleman from here in New York, all of us agree that once
you have gone through this process, however we are going to
define it, once you have gone through this process and had your
license revoked, it means you are a bad guy.
I believe you are a bad guy presently, you are a bad player
presently. Under the Coble bill, it would be changed. So you
still have a process that you go through that would be much
more lenient, much, much more lenient.
But even by his definition, you are the worst of the worst
player. You are someone that sells guns to terrorists. You are
someone that has repeatedly willfully showed, under any
definition, that you are not going to comply.
What this amendment does is allow the ATF to end that fire
sale, to not include this 60-day period where guns can be
dumped onto the marketplace.
Think about what would happen. You have already lost
whatever enforcement mechanism you have against that dealer.
What incentive is there on him then not to just, to anyone who
pulls up in a U-Haul, to sell off his wares, because then what
are they going to do to me?
You have already taken away my license. You have already
taken away my shop. I am already such a scurrilous player that
I have lost my right to sell.
At the very least, once that Damocles sword falls, we
should make sure that we don't have the 60-day period.
My amendment would strike section 8, and I urge a ``yes''
vote.
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Coble.
Mr. Coble. I rise in opposition to the Weiner amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Coble. During that 60-day period to which the gentleman
from New York referred, the licensee must comply with
appropriate rules and regulations during that time.
So indictments can be forthcoming. Further violations can
be forthcoming, if that were the case.
So I see no need for the amendment and oppose it.
Mr. Scott. Would the gentleman yield?
Mr. Coble. Yes, sir.
Mr. Scott. Will the gentleman agree that we could make this
a little clearer? Because it says, on line 15, ``The license
involved shall continue to be considered valid,'' to make it
clear that you have to be in compliance with rules and
regulations?
And I think there is a provision elsewhere in the law that
allows the attorney general to eliminate the stay for safety
reasons.
Would the gentleman agree that we could look at this, in
case the amendment is defeated?
Mr. Coble. I would have no problem with that, Mr. Scott.
Mr. Weiner. Would the gentleman further yield?
Mr. Coble. I will.
Mr. Weiner. I would just ask, Mr. Coble, we are talking
about gun shops that have already run so far afoul to the law
that they have had their license repealed. They have gone
through the appeals.
Under your bill, it is now a much more lenient process.
They have still been targeted. They have still lost their
license. This is a player who is already shown utter disregard
for the rules of the road.
Why do you think they are suddenly, in their last 60 days,
when they have no chance of being a gun dealer ever again, why
would they suddenly comply? I am curious. What would motivate
them to suddenly see the light and say, ``Okay, with this last
60 days of stock, I am going to start following the letter of
the law,'' because it is written on line 15 of some obscure
bill that they don't care about or else they wouldn't be a
criminal.
Mr. Coble. If I shared the concern that my friend from New
York shares, I would probably agree with you. But they are
still in the target. The ATF is not sleeping during this 60-day
period.
And, furthermore, it affords the licensee a chance to at
least salvage some money from his inventory before----
Mr. Weiner. But, Mr. Chairman, why is that an objective we
want for such a bad player? Why are we trying to protect his
interests here?
He has already been shown to be such a heinous player, he
is in the 1 percent that lost the license. Why are we showing
concern for salvaging anything?
Mr. Coble. Well, we are, obviously, in disagreement on this
one and I stand by what I said earlier.
Chairman Sensenbrenner. The question is on the Weiner
amendment.
Those in favor will say ``aye.''
Those opposed, ``no.''
The noes appear to have it. The noes have it. The amendment
is not agreed to.
Are there further amendments?
Mr. Weiner. Mr. Chairman, I would like to request a
recorded vote.
Chairman Sensenbrenner. A recorded vote is requested.
Those in favor of the Weiner amendment in the second degree
to the amendment in the nature of a substitute offered by the
gentleman from North Carolina, Mr. Coble, will, as your names
are called, answer ``aye,'' those opposed, ``no.''
And the clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no.
Mr. Gallegly?
[No response.]
Mr. Goodlatte?
[No response.]
Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Mr. Lundgren?
[No response.]
Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Mr. Bachus?
[No response.]
Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no.
Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no.
Mr. Green?
[No response.]
Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no.
Mr. Issa?
[No response.]
Mr. Flake?
[No response.]
Mr. Pence?
[No response.]
Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no.
Mr. King?
Mr. King. No.
The Clerk. Mr. King, no.
Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no.
Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no.
Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no.
Mr. Conyers?
[No response.]
Mr. Berman?
[No response.]
Mr. Boucher?
Mr. Boucher. No.
The Clerk. Mr. Boucher, no.
Mr. Nadler?
[No response.]
Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no.
Mr. Watt?
[No response.]
Ms. Lofgren?
[No response.]
Ms. Jackson Lee?
[No response.]
Ms. Waters?
[No response.]
Mr. Meehan?
[No response.]
Mr. Delahunt?
[No response.]
Mr. Wexler?
[No response.]
Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye.
Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye.
Ms. Sanchez?
[No response.]
Mr. Van Hollen?
[No response.]
Mrs. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Mrs. Wasserman Schultz, aye.
Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there Members in the chamber
who wish to cast or change their vote?
The gentleman from Alabama, Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no.
Chairman Sensenbrenner. The gentleman from California, Mr.
Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no.
Chairman Sensenbrenner. The gentleman from Michigan, Mr.
Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye.
Chairman Sensenbrenner. Are there further Members who wish
to cast or change their vote?
If not, the clerk will report.
The Clerk. Mr. Chairman, there are four ``ayes'' and 18
``nays.''
Chairman Sensenbrenner. The amendment is not agreed to.
Are there further amendments in the second degree to the
Coble amendment in the nature of a substitute?
Mr. Weiner. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from New York seek recognition?
Mr. Weiner. I have an amendment at the desk, Weiner 314.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. ``Amendment to the amendment in the nature of a
substitute to H.R. 5092, offered by Mr. Weiner of New York.
Page 9, strike lines 3 through 13. Page 9, line 12, strike `5'
and insert `4'.''
[The amendment offered by Mr. Weiner follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Weiner. Thank you, Mr. Chairman.
The hits keep coming. This is something else that I didn't
have an opportunity to address in the spare 5 minutes that I
had to address the Coble substitute.
The ATF proceedings against gun dealers are, by and large,
administrative proceedings. There are times when they rise to a
level of criminal offenses and there are also proceedings that
way.
Among the many things tucked into this reform legislation
is language that says that if you have a gun dealer that is
going through an administrative proceeding that we have already
learned can be quite long and lengthy and prosecutors, also, at
the same time, decide that this charge rises to the level of
criminality, which, as you know, is a much higher standard, if
these proceedings are going along at the same time and the
prosecution fails to make the burden of proof and fails to
convict the person on the criminal charge, the language in this
bill, in section 3, I believe it is, section 3, says that when
that acquittal comes down, it stops in its track any ATF
proceedings on any related matter.
So to tell you what that means, let's assume for a moment
that the ATF is doing an investigation of a gun dealer for
selling undocumented or willfully selling, under the new
standard, if this were to become the law, the new standard, a
prosecution is also going forward on the criminal side, not the
administrative side.
What the effect of this language would be in this section
would be to really render the administrative side either
completely moot, because the standard there is now going to be
irrelevant, because you are going to have the higher criminal
standard at all times.
It is a way of sneaking a new higher standard in to, again,
burden the ATF, making administrative changes.
The other thing that it is going to do is the ATF is going
to have to have conversations with prosecutors and say, ``Yes,
this is pretty serious. Yes, we think this rises to
criminality,'' which is nothing that Mr. Coble or any of the
sponsors of this legislation, I assume, want to eliminate with
this law.
They don't want to not do criminal prosecutions. But the
effect of doing criminal prosecutions under this language would
be to say if you do a criminal prosecution and you fall shy of
the standard necessary there, but you far exceed the standard
for administrative sanctions, still the administrative
proceedings die.
Now, the question has to be why do this. What is the
problem that the sponsors seek to stop? Is it that they are
concerned about someone who is violating the law
administratively, but can't be held to a criminal standard,
that that proceeding should be squashed? The answer is, yes,
that is what they want.
Secondarily, they want there to be fewer criminal
prosecutions. They don't want any criminal prosecutor to say,
``Boy, oh, boy, not only do I have a burden of persuading the
jury of the high criminal standard, but if I fail, I am also
killing this administrative proceeding.
There is no other place in the United States Code that we
do this. We don't say, ``If you are not guilty''--now, later on
in the afternoon, you are going to see this go one step
further.
You are going to say not only that, you can't even bring a
civil action. We are going to go from the sublime to the
ridiculous a little later in the afternoon.
But in this section, this, once again, lays bare the idea
that this is an attempt to reform the ATF. This is a way to
stop the ATF from doing even the small number of enforcement
actions that they do.
And I refer the Committee back to the statistics I quoted
earlier. The number of license revocations that were done in
ATF in 2003 was 54 out of 1,800 inspections and the ATF said
that if they just did the worst 1 percent, it would take them
19 years to revoke them.
So this isn't a matter that there are thousands and
thousands of abuse put upon dealers out there. In fact, there
are thousands and thousands of dealers who are following the
rules of the road every single day. And if you don't, the ATF
comes and does an enforcement action.
Under this section that we seek to strike here today, if
you are so bad that you are being challenged both on the
criminal side and in the administrative side and the criminal
side falls, this quashes an investigation that is going on by
the ATF on the administrative side.
It is a way to either chill criminal or eliminate
administrative. Either way, this is a wolf in sheep's clothing,
and I ask for a ``yes'' vote.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from New York, Mr. Weiner.
Those in favor will say ``aye.''
Opposed, ``no.''
The noes appear to have it. The noes have it. The amendment
is not agreed to.
Are there further amendments?
Mr. Weiner. Mr. Chairman, I would like a roll-call vote.
Chairman Sensenbrenner. A rollcall will be ordered.
The question is on the Weiner amendment in the second
degree to an amendment in the nature of a substitute offered by
the gentleman from North Carolina, Mr. Coble.
Those in favor of the Weiner amendment to the Coble
amendment will, as your names are called, answer ``aye,'' those
opposed, ``no.''
And the clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no.
Mr. Gallegly?
[No response.]
Mr. Goodlatte?
[No response.]
Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Mr. Lungren?
[No response.]
Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no.
Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no.
Mr. Hostettler?
[No response.]
Mr. Green?
[No response.]
Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no.
Mr. Issa?
[No response.]
Mr. Flake?
[No response.]
Mr. Pence?
[No response.]
Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no.
Mr. King?
Mr. King. No.
The Clerk. Mr. King, no.
Mr. Feeney?
[No response.]
Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no.
Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no.
Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye.
Mr. Berman?
[No response.]
Mr. Boucher?
Mr. Boucher. No.
The Clerk. Mr. Boucher, no.
Mr. Nadler?
[No response.]
Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye.
Mr. Watt?
[No response.]
Ms. Lofgren?
[No response.]
Ms. Jackson Lee?
[No response.]
Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Mr. Meehan?
[No response.]
Mr. Delahunt?
[No response.]
Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye.
Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye.
Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye.
Ms. Sanchez?
[No response.]
Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye.
Mrs. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Mrs. Wasserman Schultz, aye.
Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there Members who wish to cast
or change their vote?
The gentleman from California, Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no.
Chairman Sensenbrenner. The gentleman from Florida, Mr.
Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no.
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye.
Chairman Sensenbrenner. Are there further Members who wish
to cast or change their vote?
If not, the clerk will report.
The Clerk. Mr. Chairman, there are nine ``ayes'' and 16
``nays.''
Chairman Sensenbrenner. And the amendment to the substitute
amendment is not agreed to.
Are there further amendments?
If there are no further amendments, the question is on----
Mr. Weiner. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, Mr.
Weiner.
Mr. Weiner. Mr. Chairman, I have an amendment at the desk,
Weiner 317.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. ``Amendment to the amendment in the nature of a
substitute to H.R. 5092, offered by Mr. Weiner of New York.
Page 2, beginning on line 5, strike `$1,000' and all that
follows through `$5,000.' On line 10 and insert----
[The amendment offered by Mr. Weiner follows:]
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
The gentleman from New York is recognized for 5 minutes.
Mr. Weiner. Mr. Chairman, we have had some discussion here
about the disagreement about what the Coble substitute does
vis-a-vis the distinction between serious and minor violations.
And I think it is an important distinction that we need to
clarify, because I think that Mr. Coble left the Committee with
the wrong impression.
As I said in my remarks, that what we have done here is
allowed off-the-book transactions. And for those of you who are
unfamiliar with the process, right now, when the gun
manufacturer transfers the gun to the dealer, he inscribes the
registration and has to keep track of the first person that
purchases that gun.
That is often used as a way we track guns from crime
scenes, from terrorist scenes, to at least know where the gun
traveled from. There are bookkeeping requirements.
Now, I happen to think the bookkeeping requirements are not
sufficient. Many Members on the other side, many of the people
who support the gun lobby think there probably should be none.
But there are some that we agree upon that should be kept.
In this legislation, the Coble amendment says, on page 4,
line 13, ``A violation shall be considered serious in nature if
the violation,'' and then lays out some things, okay. And if it
is not in those sections, they are not considered major
violations.
Therefore, they are considered minor violations, which is
where I extrapolated my conclusion, and Mr. Coble can point to
the section that disputes this, that if someone has a
bookkeeping violation, 10 bookkeeping violations, 50
bookkeeping violations, a 1,000 of them, you will be in a minor
situation and the ATF will be restricted from having the
greatest sanctions available, because they are going to say,
essentially, a dozen or two dozen or five dozen minor
violations does not, in the Coble substitute, a major violation
make.
Now, Mr. Coble said I misunderstood or I misspoke, but
unless he can point to me a section where it says--now, you
could say that the attorney general could commend an action or
the ATF could theoretically come back and, I guess, do some
rulemaking.
I would be surprised if they would in the light of
congressional action, defining what major and minor would be.
But what this amendment does, at the very least, is it takes
off the cap on fines.
What we do is we take off the cap on fines, putting it for
minor violations to make it the same as what it would be for
major violations.
So at the very least, what the ATF would be able to do, if
my amendment were adopted, is it doesn't change the minor-major
thing, but it does say that the fines would be higher. So if
someone thinks they can get away, which they clearly can, it is
a loophole the size of a truck, if they can get away with just
having a whole bunch of minor violations, at the very least,
the sanctions for them can rise if the ATF sees that that is
appropriate.
And I ask for a ``yes'' vote.
Ms. Waters. Will the gentleman yield for a question?
Mr. Weiner. I certainly will.
Ms. Waters. Mr. Weiner, as you describe, what is major and
what is minor, is there any consideration given to whether or
not this is a handgun or an assault weapon? Could this be major
weapons that could be involved with 1,000 minor violations?
I can't tell from looking at this.
Mr. Weiner. Well, frankly, the way the Coble amendment, the
substitute reads, is that it is things like collusion. If you
collude with a gun dealer, with someone who is trafficking in
guns, that you can't do.
But if you lost his paperwork for his order of a 1,000
guns, that is not so bad. That falls into minor. And to make
matters worse, the fines that you are eligible for under this
bill, under the Coble amendment, would be limited at $1,000.
Ms. Waters. But this could be to any kind of weapons that
you could sell, if you lost the paperwork. This could be for
handguns or assault weapons.
Mr. Weiner. Any weapon, this covers any weapon under the
enforcement domain of the ATF.
Ms. Waters. So it could be assault weapons.
Mr. Weiner. And, frankly, and we are going to talk about
this later, you know, this doesn't make--if you have someone
come up to you and say--and if you have reason to know that he
is a Member of Al Qaida, for example, I believe that is right,
if you have reason to know.
But if you are not willfully, under the new definition, if
you just do it over and over and over again, just because you
just lose bookkeeping, you lose records over and over again,
you are considered to have committed a series of minor
violations which you could not lose your license for.
Ms. Waters. Well, since you mentioned willful, if you don't
mind, since you are taking a very close look at this, the
standards that are changed by this legislation from should have
known to willful, under should have known, that would have
taken in if you were under an orange or red alert or something
is going on, particularly as it relates to this war on
terrorism.
And if we change that standard and weaken that standard,
you could have had an orange or a red alert or some description
or a profile or what have you, but unless it is deemed to be
willful, then we have weakened the standard substantially and
this could be for an assault weapon.
Mr. Weiner. I would say to the gentlelady from California,
I am going to be offering a substitute later that changes it to
``knowingly,'' which is pretty bad, too.
But if you know the fact, but you--I mean, you here are
setting up what essentially turns out to be the highest
possible standard for the worst type of activity.
Ms. Waters. And that includes for assault weapons that
terrorists may use, is that right?
Mr. Weiner. The gentlelady is correct.
Ms. Waters. Well, what a war on terrorism we have.
Chairman Sensenbrenner. The gentleman's time has expired.
The question is on the Weiner amendment to the Coble
amendment in the nature of a substitute.
Those in favor will say ``aye.''
Opposed, ``no.''
The noes appear to have it. The noes have it. The amendment
is not agreed to.
Are there further amendments?
Mr. Weiner. While I gather myself, could I request a roll-
call vote on that?
Chairman Sensenbrenner. Of course.
Mr. Weiner. Thank you.
Chairman Sensenbrenner. The chair will put the question the
same way he has done with the last two amendments. Those in
favor will say ``aye,'' those opposed, ``no.''
And the clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no.
Mr. Gallegly?
[No response.]
Mr. Goodlatte?
[No response.]
Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Mr. Lungren?
[No response.]
Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no.
Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no.
Mr. Hostettler?
[No response.]
Mr. Green?
[No response.]
Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no.
Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no.
Mr. Flake?
[No response.]
Mr. Pence?
[No response.]
Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no.
Mr. King?
Mr. King. No.
The Clerk. Mr. King, no.
Mr. Feeney?
[No response.]
Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no.
Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no.
Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye.
Mr. Berman?
[No response.]
Mr. Boucher?
Mr. Boucher. No.
The Clerk. Mr. Boucher, no.
Mr. Nadler?
[No response.]
Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no.
Mr. Watt?
[No response.]
Ms. Lofgren?
[No response.]
Ms. Jackson Lee?
Ms. Jackson Lee. Pass.
The Clerk. Ms. Jackson Lee, pass.
Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Mr. Meehan?
[No response.]
Mr. Delahunt?
[No response.]
Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye.
Mr. Weiner?
Mr. Weiner. Pass.
The Clerk. Mr. Weiner, pass.
Mr. Schiff?
Mr. Schiff. Pass.
The Clerk. Mr. Schiff, pass.
Ms. Sanchez?
[No response.]
Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye.
Mrs. Wasserman Schultz?
[No response.]
Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there further Members in the
chamber who wish to cast or change their vote?
The gentleman from California, Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no.
Chairman Sensenbrenner. Do I see the gentleman from
Arizona, Mr. Flake, hiding in the door? The gentleman from
Arizona?
Mr. Flake. No.
The Clerk. Mr. Flake, no.
Chairman Sensenbrenner. The gentleman from Florida, Mr.
Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no.
Chairman Sensenbrenner. The gentlewoman from Florida, Mrs.
Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Mrs. Wasserman Schultz, aye.
Chairman Sensenbrenner. The gentleman from California, Mr.
Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye.
Chairman Sensenbrenner. And, finally, the gentleman from
New York, Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye.
Ms. Jackson Lee. How am I recorded, please?
Chairman Sensenbrenner. The gentleman from Indiana, Mr.
Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no.
Chairman Sensenbrenner. How is the gentlewoman from Texas
recorded?
The Clerk. Mr. Chairman, she is recorded as present.
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye.
Chairman Sensenbrenner. The clerk will report.
The Clerk. Mr. Chairman, there are eight ``ayes'' and 20
``nays.''
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments?
If there are no further amendments, the question is on
agreeing to the amendment in----
Mr. Weiner. Mr. Chairman? Mr. Chairman, I believe the
gentlelady from Texas has an amendment.
Chairman Sensenbrenner. The gentlelady from Texas has never
been at a loss for words. If she has an amendment, she can
offer it herself. [Laughter.]
Ms. Jackson Lee. I have an amendment at the desk, Mr.
Chairman.
Chairman Sensenbrenner. For what purpose does the
gentlelady from Texas seek recognition?
Ms. Jackson Lee. I have an amendment at the desk.
And I am so glad that you are reaffirming my right to the
First Amendment. Thank you.
Chairman Sensenbrenner. That has never been abridged.
And the clerk will report the amendment.
Ms. Jackson Lee. Thank you very much.
The Clerk. ``Amendment to the amendment in the nature of a
substitute to H.R. 5092, offered by Ms. Jackson Lee of Texas.
Strike section 4 and redesignate succeeding sections
accordingly.''
[The amendment offered by Ms. Jackson Lee follows:]
Chairman Sensenbrenner. And the gentlewoman is recognized
for 5 minutes.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
Just a few blocks from this august building, three of the
nation's mayors are sitting on a panel discussing the increase
of gun violence in their cities. Frankly, they are present at
the Congressional Black Caucus legislative weekend to ask
Congress to be more sensitive and responsive to the
proliferating gun violence that we have in this nation.
Just a few weeks ago, I had the opportunity to participate
in one of the many immigration hearings. At that hearing, there
was a discussion of the drug and gun violence in Nuevo Laredo.
That is, of course, in Mexico.
But one of the issues had to do with the spillover of that
gun violence into Laredo, Texas. And so it is clear that there
needs to be a further reinforcement of the responsible
legislation necessary to ensure responsible use of guns and the
protection of the innocent.
My amendment maintains the ability of the Bureau of
Alcohol, Tobacco, Firearms and Explosives 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, by
striking section 4 of the bill.
H.R. 5092 was introduced by Chairman Coble and the Ranking
Member, Mr. Scott, as a bipartisan attempt to address
enforcement issues raised during ATF oversight hearings
conducted by the Subcommittee.
I congratulate their effort. I appreciate their leadership.
But those hearings focused on ATF's 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
enforcement authority, including authorization of civil
penalties, creation of independent administrative law judges to
hear enforcement cases, definitions of serious and non-serious
violations, DOJ inspector general investigations, ATF gun show
enforcement, and other support provisions.
Most significantly, for purposes of my amendment,
modification of the requisite intent for violation. The bill in
section 4, entitled ``definition of willfully,'' that
``willfully'' is defined as ``intentionally, purposefully, 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 officers than currently.
We have got to give law enforcement officers the right
tools to do the right things, but at the same time, we must
provide them with the tools to protect the innocent.
There does not appear to be any compelling reason for
increasing the government's evidentiary burden is time. My
amendment simply restores the restoration of the definition of
``willfulness'' to its well settled meaning that defendant knew
his conduct was unlawful; not that he knew the specific statute
he is accused of violating or the specific intent to violate
that precise provision.
Mr. Chairman, that determination will be made beyond a
reasonable doubt or in civil penalties. It will allow the
individual, in a preponderance of evidence, to prove that they
did not intend to break the law.
That is fair enough, because guns kill. And some people say
people kill with guns, but guns kill and there are people with
criminal intent that will buy guns from gun shows and they will
kill.
Mr. Chairman, changing the evidentiary standards governing
elements of penal offenses should be done sparingly and with
the utmost care. This is particularly true whereas 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.
Let's help our nation's major mayors and rural communities.
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., 524-184, the U.S. v. Andre
case, the U.S. v. Aleck, and the U.S. v. Collins.
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 store purchasers in Ohio to acquire pistols he could
not have bought himself; that he knew the store purchasers made
false statements when purchasing the guns; that the defendant
assured the store purchasers that he would file off the serial
numbers; and, that the 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 firearm laws unless the
government proved he knew of the Federal licensing requirement.
The Supreme Court soundly 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.
Chairman Sensenbrenner. The time of the gentlewoman has
expired.
Ms. Jackson Lee. I ask my colleagues to support this
amendment.
Chairman Sensenbrenner. For what purpose does the gentleman
from North Carolina, Mr. Coble, seek recognition?
Mr. Coble. I will speak in opposition to the amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Coble. And I won't take 5 minutes, Mr. Chairman.
This provision, of course, is restricted only to civil
matters, not criminal, and it is intended to distinguish
between the licensee actions that are knowing and intentional
versus good faith or administrative mistakes and recordkeeping.
The Subcommittee heard testimony, Mr. Chairman and
colleagues, on this issue that ATF treats virtually all errors
in dealers' records, no matter how few or how minor, as willful
violations. Any error could result in a license revocation. It
just seems that this is not there.
For the benefit of Members of the Committee, Mr. Chairman,
I will be brief about this. But we had a witness that appeared
before Mr. Scott and me who cited the fact that a licensee
received a revocation notice who wrote the initials ``Y'' or
``N'' in lieu of writing out the words ``yes'' or ``no'' on a
firearms transaction form.
This seems to violate common sense, to me. And in a number
of transactions, a revocation notice cited the failure of the
firearms purchaser to identify the county of residence,
although the purchaser did clearly and notoriously list his
city of residence.
So for those reasons, Mr. Chairman, I oppose the amendment.
Mr. Gohmert. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Texas, Mr. Gohmert, seek recognition?
Mr. Gohmert. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Gohmert. The violence in D.C. is certainly something
that we need to be very concerned about and I would humbly
submit that one of the things that has concerned me is the fact
that guns were prohibited in Washington, D.C.
And there is something to the old bumper stickers that
says, ``When guns are outlawed, only outlaws have guns.'' Back
in Texas, after a disaster where a gunman came in to a
cafeteria and began shooting people, it was realized we need to
have guns in the hands of lawful, legal, law-abiding people.
And so we passed a concealed carry and violent crime has
been going down ever since. So I would submit that may be a
good thing for us to take a look at.
I do recall back in the early 1990's, under President
Clinton, the secretary of state, a man from Texas, stood up in
front of the country and said, ``What we need to do is raise
the fees for gun dealers tenfold and that will bring an end to
so much of this gun violence in America.''
Well, it didn't, because I can tell you, in all my years as
a judge, the guns that were constantly used in crimes were not
bought from sporting good dealers. I didn't even have them from
gun shows. I had them bought out of people's trunks, stolen out
of other people's homes, things like that.
And so that kind of thing ended up penalizing law-abiding
gun dealers and it did nothing to actually address the real
problem, the underlying problem, and that was the criminals
that use them and tying the hands of law-abiding folks that
could counter that.
And I would just submit, in conclusion and before I yield
back my time, that the bumper sticker is quite true that says,
``Guns kill people the same way it is spoons that really make
people fat.''
I yield back.
Mr. Weiner. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, Mr.
Weiner, for what purpose do you seek recognition?
Mr. Weiner. Mr. Chairman, I would like to seek to respond
to that erudite presentation.
Chairman Sensenbrenner. For what purpose do you seek
recognition?
Mr. Weiner. Five minutes to strike the last word, please.
Chairman Sensenbrenner. That is better. The gentleman is
recognized for 5 minutes.
Mr. Weiner. I don't know where to start, the spoons or the
trunks.
Mr. Gohmert. I think I resent erudite, I am not sure.
Chairman Sensenbrenner. The time belongs to the gentleman
from New York, all 5 minutes of it.
Mr. Weiner. First, let me just clarify a couple of
questions or fact. First of all, what the gentleman from North
Carolina said about the knowingly standard is incorrect.
Under the gentlelady's amendment, if you have an
inadvertent error, that would not be a basis for sanction. The
Bryan standard did not say if you put a ``Y'' or an ``N.'' The
Bryan standard for willingly said, you know, if you show a
pattern again and again and again and again of someone
violating the law, that is enough to show willfulness.
Now, I doubt, and who knows, I am surprised in this debate
all the time, but I doubt that the gentleman from North
Carolina or the gentleman from Texas think that Bryan was a
good guy and think that there shouldn't have been sanctions
brought against him.
The question is, is the standard correct or not and I think
the knowingly standard that the gentlelady from Texas is
arguing for here is a good one. It says if you know what you
are doing, even if you don't know the specific section, if you
know what you are doing is wrong, that that should be enough to
bring sanctions.
But I can't let the example, as far off point as it was, by
the gentleman from Texas, not be responded to. The guy who
sells guns illegally in the back of the car is why we need good
documentation and good trace data and why we need a strong ATF.
You have got to understand it is the good gun dealer that
is protected by these sections. The guy who is following the
rules, documenting his actions, they are not the problem. I
think the gentleman would agree.
If somehow the gun is going from being legal when it is
manufactured to becoming illegal, and what the ATF is asking
for and what cities are asking for and what individuals are
asking for is give somebody the tools, somebody the tools to be
able to do that investigation and get the bad guys.
We are not talking about 50 percent of the gun dealers. I
mean, there is a statistic in my notes here somewhere about the
relatively tiny percentage of gun dealers that are responsible
by this trace data for all of the illegal handguns making their
way that way.
If you don't believe in having an ATF, all right, I can
it--listen, it is a weird position to have, but that is the
direction you are going in with the Coble substitute. You are
taking away their ability to put the heaviest sanctions.
You are slowing down a process that is already
excruciatingly slow. You are saying if it results in criminal
sanctions, you kind of have a weird double-jeopardy situation
going on.
You are saying that if you choose not to observe the child
lock provision, that we are not going to sanctions you.
You have got all of these things. You have got this new
classification of minor, which says you can't lose your license
at all, even if there are dozens and dozens and dozens and
dozens of them.
I agree with the gentleman from Texas. I don't know, the
spoon thing had me a little confused, but I agree with the
gentleman from Texas, we need to get criminals.
How do we do it? Well, we have got the ATF to do it. Why
gut the few investigations and the few prosecutions that they
are doing? If you want to get the guy selling guns out of the
back of his car, and I know 99.9 percent of gun dealers want to
get him, too, how do you do it?
With a strong, empowered ATF, with a standard that leads to
real enforcement. If you say that knowingly violating the law
is too strong a standard, you are right. It is too strong a
standard for the criminal who is selling it out of the back of
his car.
But for the gun dealer who wants to be a good player, it is
no challenge. He just knows he can't lose documents. He knows
he has to write down the right thing.
Who are we protecting? Who are we protecting, my
colleagues, with the Coble substitute? Let's really talk about
that.
We are protecting essentially a tiny group of gun dealers
who are doing bad things. Don't take it from me. Ask the ATF.
They are doing 2 percent of their investigations lead to
revocations, 2 percent. They are not getting the best 2, they
are not getting--is Wal-Mart on this list, as much as I dislike
them, is Target? No. They are getting the rogue guy.
Isn't that who people who support gun rights want to get?
Isn't that the people like me who think we need tougher
restrictions?
We have agreement. We created the ATF. Why not just say
what you mean? Do away with the ATF. Why the death by a
thousand nicks here?
So the gentleman is right, that is who we want to get. Now,
he didn't speak to the point of knowing and willful, but he is
right about the overall point. As far as knowing and willful,
knowing is a pretty tough standard. You have got to know that
what you are doing is breaking the law every single time you do
it, not simply having paperwork errors every once in a while.
That person is not going to get stuck.
And I yield what little time I have left to the gentlelady
from Texas.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The question is on the Jackson Lee amendment.
Mr. Conyers. Mr. Chairman, I rise in support of the
amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Conyers. I think this is a very revealing discussion,
and I would like the gentlelady from Texas to make any closing
comments that she might like. I yield to her at this time.
Ms. Jackson Lee. I thank the distinguished Ranking Member.
And I am moved by the gentleman's eloquent detailing of
where we are going in this debate, both Mr. Conyers' very frank
statement, but Mr. Weiner, who has made a very potent point.
I would wish that we could make this a very factual debate
and discussion and, frankly, track or efforts toward the NRA
that really want absolutely no regulations and provisions
whatsoever.
The point that many of us are trying to make with these
amendments is the point that the ATF has a duty. It is a civil
duty, in some instances, and that is to make sure that the
regulations of gun ownership, which are, if you will,
consistent with the Second Amendment, which the Second
Amendment is not a free-for-all.
It is a constitutional right to be able to bear arms, but
it is not a free-for-all. And so most likely you would not like
to have a 2-year-old holding a gun. You would not like to have
someone who is suffering from some failings of mental health
have a gun. You wouldn't want to have a domestic abuser have a
gun, as well.
And this is what ultimately happens when you have a
reckless, non-supervised and no law enforcement overseeing of
the movement of guns in America. We know that there are massive
gun dealers coming from countries outside of the United States,
making multi, multi millions of dollars and making sure that
their guns get in the hands of those who have no intent of
doing anything but doing harm.
You now, if you will, emasculate the ATF to the extent that
they have to take out a little card and say, ``Is this
willful?'' Now, what is the definition of willful?
Their job on the street is to arrest the bad guys. That
means the individual who had people go to Ohio and misuse his
identification or not use his identification, buy guns and
then, ultimately, the drug dealers on the streets of Houston,
Chicago, Kansas City, New York are then able to get their guns
without any reprimand whatsoever.
This is, in essence, taking the law away from ATF and
simply saying, ``Look pretty, wear a uniform, and just let us
pay you.'' And I don't think that that was the intent.
One abuse, one play should be fixed. Obviously, we should
find a way for the ATF to be able to supervise legitimate gun
shows and be able to be responsible with a responsible gun
dealer.
Raiding gun shows recklessly is not what I am advocating
for, but to take an incident in one city and, if you will,
blindfold the rest of us and cause me in Houston to have to
suffer through the thousands of gun shows experience every
year, with illegal folks standing outside the gun shows and
then trunks open, I think is an outrage.
For you to suggest to me that because we are taking the
word ``willfully out,'' a 2-year-old gets a gun and shoots her
4-year-old brother and that is okay, I think is an outrage.
And so I would ask my colleagues to consider spoons and
various other anecdotes that have been told and really look at
the life or death question that we are talking about.
And that life or death question has to do with removing
section 4 that literally guts the responsibility of the ATF and
their ability to respond to the need of the American people by
ensuring that illegal gun dealers and those who are not
attempting to follow the law and those who are attempting to
really, if you will, have a cartel of guns on the streets and
they don't care who they sell it to, they are not interested in
making sure that the guns are sold safely and legally, this is
what this amendment is attempting to do.
I ask my colleagues to stand on behalf of the children,
families, security and the Second Amendment and vote for my
amendment.
I yield back.
Chairman Sensenbrenner. For what purpose does the gentleman
from California seek recognition?
Mr. Issa. To strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Issa. I will take only 1.
In listening to the gentlelady, I have served on this
Committee for 6 years, I have never spoken on a gun bill
before. But I would ask that all of us throughout the rest of
today, on this bill and others, recognize that we may disagree
on the fundamentals.
Clearly, this Committee is divided along those who
historically have supported the Second Amendment and those who
seem to constantly want to limit it, strike it, limit its
importation, limit its sale.
Hopefully, we can recognize that we can agree to disagree
and do it in a civil way, without using rhetoric that is
extreme. We do disagree along recognizable lines on the
interpretation of the Second Amendment and people's right to
keep and bear arms.
Mr. Chairman, one of my cousins, Richard Issa, is, in fact,
an ATF agent and I would not be supporting this if I thought
that it gutted Alcohol, Tobacco and Fire's ability to do its
job. Just the opposite.
I think that the firearm portion of Alcohol, Tobacco and
Firearms will, in fact, be enhanced by us being reasonable in
the message that we send to that agency and their enforcement.
And with that, I yield back.
Chairman Sensenbrenner. The question is on the Jackson Lee
amendment.
Those in favor will say ``aye.''
Opposed, ``no.''
Ms. Jackson Lee. rollcall, Mr. Chairman.
Chairman Sensenbrenner. Okay, first of all, let me state
that the noes have it.
Ms. Jackson Lee. I would like a roll-call vote, please, Mr.
Chairman.
Chairman Sensenbrenner. A rollcall will be ordered.
Those in favor of the Jackson Lee amendment in the second
degree to the amendment in the nature of a substitute by Mr.
Coble of North Carolina will, as your names are called, answer
``aye,'' those opposed, ``no.''
And the clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no.
Mr. Gallegly?
[No response.]
Mr. Goodlatte?
[No response.]
Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Mr. Lungren?
[No response.]
Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Mr. Bachus?
[No response.]
Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no.
Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no.
Mr. Green?
[No response.]
Mr. Keller?
[No response.]
Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no.
Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no.
Mr. Pence?
[No response.]
Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no.
Mr. King?
Mr. King. No.
The Clerk. Mr. King, no.
Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no.
Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no.
Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no.
Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye.
Mr. Berman?
[No response.]
Mr. Boucher?
Mr. Boucher. No.
The Clerk. Mr. Boucher, no.
Mr. Nadler?
[No response.]
Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye.
Mr. Watt?
[No response.]
Ms. Lofgren?
[No response.]
Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye.
Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Mr. Meehan?
[No response.]
Mr. Delahunt?
[No response.]
Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye.
Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye.
Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye.
Ms. Sanchez?
[No response.]
Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye.
Mrs. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Mrs. Wasserman Schultz, aye.
Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there Members who wish to cast
or change their votes?
The gentleman from California, Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no.
Chairman Sensenbrenner. Are there further Members who wish
to cast or change their vote?
If not, the clerk will report.
Mr. Weiner. Mr. Chairman? Mr. Chairman?
Chairman Sensenbrenner. Who seeks recognition?
Mr. Weiner. I have my final amendment, which is an
amendment in the form of a substitute.
Chairman Sensenbrenner. Well, the clerk has to report
first. I know the gentleman is real eager to offer another
amendment, but let's find out what happened to this amendment
first.
Will the clerk please report?
The Clerk. Mr. Chairman, there are nine ``ayes'' and 17
``nays.''
Chairman Sensenbrenner. And the amendment is not agreed to.
Now, for what purpose does the gentleman from New York seek
recognition?
Mr. Weiner. Mr. Chairman, would this be an appropriate time
to offer an amendment?
Chairman Sensenbrenner. Are you doing it in person or by
proxy this time?
Mr. Weiner. I would like to have an amendment at the desk.
It is Weiner JDG-212.
Chairman Sensenbrenner. The clerk will report that
amendment.
The Clerk. ``Amendment in the nature of a substitute to
H.R. 5092, offered by Mr. Weiner. Strike all after the enacting
clause and insert''----
[The amendment offered by Mr. Weiner follows:]
Chairman Sensenbrenner. Without objection, the amendment is
considered as read. And the gentleman from New York will be
recognized for 5 minutes.
Mr. Weiner. I thank the Chairman. This is a substitute that
seeks to address some of the concerns that have been raised and
some we haven't gotten to yet.
But I want to thank the gentleman from California, Mr.
Issa, for striking a tone that I think is important here. If
the gentleman perceives that there is a certain level of
passion to this issue, it is because in cities like mine, these
are not academic rule-making things.
In cities like mine, they are not constitutional debates in
the abstract about the correct interpretation of a Second
Amendment that was written a couple of hundred years ago.
This is about illegally sold guns that are coming to cities
like mine and killing children and killing police officers and
killing people just about every single day, that we are trying
to stop.
Now, I don't know how you do it except by having an
empowered ATF, with an empowered ability to do everything we
can to track guns from that moment they are legal to when they
are used in that crime.
And if you believe that we should approach this issue with
perhaps a little less passion and heat, I am sorry. It is not
going to happen, because people are burying their relatives,
police officers, children are getting shot.
We heard the testimony from the mayor of the city of New
York, a Republican, talking about part of his job is having to
go to funerals where people are being killed with illegal guns
that start out somewhere, and we know where they are starting.
The ATF knows where they are and what you are saying with
this bill is don't punish them. And if you think that is
hyperbole, let me tell you about some other cases.
You know, the Bull's Eye Shooter Supply in Tacoma,
Washington shot Bushmaster rifles to the D.C. snipers, even
though both were on the prohibited list. Perhaps the most high
profile case maybe in American history dealing with the gun, or
at least in recent memory.
And 238 guns in the inventory of that shop had disappeared
over a 3-year period. The owner has had the revocation of his
license on appeal since 2003. He is selling guns to this day.
Now, if you believe that that is an okay state of affairs,
then keep the existing law. If you believe that is still too
liberal, too generous, pass the Coble amendment and keep him
selling guns for years to come.
Trader Sports in San Laredo, California, in 2003, an ATF
audit found, as I said earlier, 7,477 firearms had no
documentation. They essentially were missing. Now, are they in
the back of some guy's truck that he is selling to criminals,
that the gentleman from Texas articulated in his example?
Maybe.
He had his license revoked in 2004 and was selling guns
after that audit for two additional years of appeals, until
June 2006.
If you think this is a steel-jaw trap of enforcement, these
are two high profile cases.
Perhaps the highest-profile case is one that returns to
this exact bill. I am going to read you the description of a
gun dealer who, under this Coble bill, would be considered a
minor offender, under this bill.
In 2001, an audit found improper paperwork on 419 of 903
transactions examined and a 133 lost guns, this dealer. In
2003, an audit found 422 of 1,524 guns that should have been in
inventory were missing. That was a 2001 audit and then a 2003
audit.
Ranked 37th of 80,000 dealers in the number of guns linked
to crime, 500 crime guns in 2004 came from this one dealer. The
license was revoked, but under 5092, every single one of those
things would be considered a minor offense. The name of this
dealer is Sanford Abrams, and he is a board member of the
National Rifle Association and the owner of the Valley Gun Shop
outside of Baltimore.
Now, if you think that record is a list of minor offenses
and that we were too tough on that guy, remember, it started in
2001, it wasn't until last year that it was revoked.
If you think the process is too strong, if you think the
process is too vigorous, if you think the process is too
onerous, vote for the Coble bill. And maybe go even further and
do what the Coble bill is on the way to doing, which is taking
firearms enforcement out of the ATF.
But if you think that some of these things can be done in a
more reasonable way, having the burden of proof be knowingly
rather than willful, saying the ATF can revoke the gun license
who knowingly break the law, allow fines of up to $10,000 per
violation, doesn't take this carve-out that allows them--that
prevents enforcement on gun safety----
Chairman Sensenbrenner. The time of the gentleman has
expired.
The question is----
Ms. Waters. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the
gentlewoman from California seek recognition?
Ms. Waters. I move to strike the last word. And I yield to
the gentleman from New York.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Mr. Weiner. And I thank the gentlelady for yielding, as I
continue to explain that this--one of the sections of the bill
repeals the separate penalties for not having child safety
locks on handguns. That is one of the things we are doing
today.
My substitute would also take away this terrible
disincentive to bring criminal cases against the worst
offenders by having this notion that if you fail in the
criminal case, you lose the administrative bite at the apple.
My colleagues, I agree with the gentleman from California,
we do have some ideological differences here. I do believe that
one of them has never been should we have an ATF that does its
job.
If you don't believe in this recordkeeping thing, just say
it. If you believe that the 95 percent of the gun dealers who
are not responsible for not keeping records and who do fine
when the ATF comes and visits, they are more than helpful when
government officials visit, then, frankly, we do have a
difference that goes beyond philosophy.
Ms. Waters. Would the gentleman yield for a moment?
Mr. Weiner. I certainly will. It is your time.
Ms. Waters. I am sorry. I missed what you said about the
child safety locks.
Mr. Weiner. If the gentlelady would yield me the time.
Ms. Waters. I yield back.
Mr. Weiner. There are separate penalties under the law that
were enacted in 2005 for failure to provide for a child safety
lock for handguns. This language in this bill, unwittingly,
accordingly to the gentleman from Virginia, I am not so sure,
listening to some of the debate here today, strikes those
separate provisions.
Now, we can re-argue the child safety lock debate, if that
is what my colleagues want. But I say to the gentlelady from
California this is really a surrogate debate for something
else.
This is not about whether we are going to get the bad guys,
because that is what the ATF wants to do. They are only doing
it in a relatively tiny percentage, as the statistics show.
This is about an entirely different discussion, a whole new
frontier beyond where the gentleman from California described
debates up to now.
What they are essentially doing with this modernization and
reform act, and I say that with sarcasm, is they are taking
away the ATF's last remaining arrows in their quiver.
When you have someone like a gun show that ranks 37 among
80,000 dealers and he can still be considered a minor offender
under this bill, it is clear what they are doing.
When you say that the ATF is working too hard, when the
shopkeeper that sold the Bushmaster rifle to D.C. snipers, even
though both were on the list that they are required to check of
prohibited people. Imagine if, God willing, they would have
said, ``You know what? We are not going to sell and we are
going to call someone and say `Someone is coming around here
trying to buy who is on the list,''' it prevents the ATF from
shutting down people like this.
That is who my colleagues are defending here. We shouldn't
be. Your brother deserves to be honored by giving him the tools
he needs to do his job. We dishonor him by saying, ``You know
what? You are doing too much,'' saying 1 percent or 2 percent,
saying that we should keep the guy who is the 37th ranked out
of 80,000 should be considered a minor offender.
Does that honor the work of people who are trying to
enforce the law, let alone the memories of those that are lost
to these guns?
Look, I believe in doing away with the pretense here. Let's
have a discussion whether you should have the ATF. It would be
a tough vote for you guys. You know what? Prepare that
amendment, Josh.
Let's see if we should even have an ATF. Isn't that what
this is about? Is this about doing the bidding, because you
have a board member who found, in an audit in 2001, he lost
guns, in 2003 he lost guns, has 500 guns linked to crime? Isn't
that what this is about, doing the bidding of a special
interest here in Washington, when that special interest is
responsible for more guns being on the street that are killing
the citizens of our country?
Isn't that what this is about? This isn't about a broad
philosophical debate anymore. This is about protecting the
very, very, very worst.
And let me conclude with this, 99 percent of the gun
dealers probably are watching this on television and saying,
``Boy, I am glad my dues for the NRA are paying off.'' But they
are also saying, ``This doesn't affect me. I keep my records. I
don't sell to rogue guys. By the way, I probably know who the 5
percent are, but I am not doing it.''
We are trying to protect them, as well. What this bill is
doing is neutering the ATF and I hope you vote for the
substitute, which gives them a flexibility, takes out some of
the highest standard, takes out some of the clerical things
that Mr. Scott says was a mistake, like the child safety lock
thing, prevents a fire sale of guns 60 days after you have lost
your license.
And then the answer is, ``Oh, but they are going to want to
follow the law.'' They lost their license. They are like the
worst you can imagine. It takes that provision out.
And I urge my colleagues, in a spirit of comity and also in
a spirit of understanding that we all believe, I would hope
that there is a need for a strong ATF.
And I yield back the time to the gentlelady from
California.
Chairman Sensenbrenner. And the time of the gentlewoman
from California has expired.
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Virginia seek recognition?
Mr. Scott. Move to strike the last word.
Chairman Sensenbrenner. And the gentleman is recognized for
5 minutes.
Mr. Scott. And if I can get the attention of the gentleman
from North Carolina, Mr. Coble.
The gentleman from New York has indicated concern about the
child safety lock provision. It is my understanding that the
language in the bill does, in fact, change the present law.
Is it the intention of the sponsor of the bill to make sure
that when the bill is presented to the floor, that we correct
that oversight and reinstate the present law on child safety
locks?
Mr. Coble. If the gentlewoman would yield to me. If you
will yield, Mr. Scott.
Mr. Scott. I will yield.
Mr. Coble. I said earlier that you and I had agreed to do
that, and I made that clear previously.
Mr. Scott. I yield to the gentleman from New York.
Mr. Weiner. Would the two gentleman who helped craft this
bill, if we are able to craft an amendment now to do that,
would you vote in favor of it?
Mr. Coble. Well, I don't know that it is necessary.
Mr. Weiner. We are in the process of marking up
legislation. It is generally where that kind of thing is done.
Mr. Coble. We can look at it and work with you as we go
along. I want to be sure it is done technically correct. But
Mr. Scott and I, I think, are as good as our word.
Mr. Weiner. I thank you.
Mr. Scott. Reclaiming my time. I yield back.
Mr. Coble. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from North Carolina seek recognition?
Mr. Coble. To strike the last word.
Chairman Sensenbrenner. The gentleman is recognized.
Mr. Coble. And, Mr. Chairman and colleagues, I will not
take the full 5 minutes, but I want to say this to you.
I think I have implied it before, but the response to this
bill, Mr. Scott's and my bill and a 137 cosponsors, the
response from the ATF in opposition, the silence has been
deafening.
Now, that tells me that the ATF is not all that upset about
this. Usually, the way matters are transacted on this Hill, if
I embrace a piece of proposed legislation and X, Y and Z are
opposed to it, oftentimes they will knock my door down, at
least knock on the door and sometimes knock it down, expressing
their opposition.
I have not heard from the ATF in opposition.
And, finally, as to Mr. Weiner's amendment, he retains ATF
employees as administrative law judges. Mr. Scott and I
designate neutral ALJs, which I think would afford more
objectivity.
Mr. Weiner does not distinguish between minor and serious
violations, thereby still permitting revocations as a result of
innocuous clerical errors.
Finally, suspension after indictment is usually not
practical, because generally civil proceedings are routinely
stayed pending the disposition of criminal matters.
So with that in mind, Mr. Chairman, I oppose the amendment.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Coble. I yield back.
Chairman Sensenbrenner. The gentleman from Maryland, for
what purpose do you seek recognition? And the gentleman is
recognized for 5 minutes.
Mr. Van Hollen. I thank you, Mr. Chairman.
Whenever we have this debate on gun safety bills, gun
control bills, we often hear from the other side, ``We don't
need any new legislation, we don't need any new gun safety
laws. Let's just enforce the existing laws that are on the
books.''
And now we have a piece of legislation that seeks to undo
the existing laws on the books, that seeks to undermine the ATF
and seeks to make it much more difficult for them to go after
the bad apples.
Now, Mr. Weiner has made the point that a very small
percentage of gun dealers are responsible for selling the great
majority of guns that are used in crimes. In fact, 1 percent of
licensed dealers account for over 60 percent of the guns used
in crimes.
And under existing law, forget the changes in Mr. Coble's
bill, under existing law, the ATF has had a very difficult time
going after them and now we have a piece of legislation to make
it even more difficult to go after the bad apples.
You have got to ask yourself the question why. Now, Mr.
Coble raised the point that he hasn't heard from anyone in the
existing ATF. Well, as I understand this Bush administration's
position, I don't even know if they have a position, but I am
not at all surprised to hear that somebody at the ATF isn't
coming down and telling us what they think about this bill.
Unfortunately, you have to retire from the ATF these days
to be able to speak your mind and it is what you believe. And
if you look at people who are retired from the ATF, you will
see that they have come out against this bill.
In fact, the bill is opposed by former ATF members,
including former director Stephen Higgins and Rex Davis. And,
Mr. Chairman, I would like to submit for the record a letter to
the Congress, dated June 29, 2006, from a number of former
officials at the ATF in opposition to this bill.
Chairman Sensenbrenner. Without objection, the letter will
be put in the record.
[The letter follows:]
Mr. Van Hollen. And I would just like to read the first
paragraph, since Mr. Coble raised this issue. Again, it is
signed by a number of former ATF officials.
``As former officials of the Bureau of Alcohol, Tobacco,
Firearms and Explosives, we write to urge you to oppose H.R.
5092. 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 revoke dealers' licenses.''
So these are the people that worked at ATF. These are the
people who now are free to speak their minds from the ATF and
they clearly see this as undermining our ability to go after
the bad apples.
I would also say that this legislation is opposed by the
Major City Chiefs Association, the International Association of
Chiefs of Police, and the International Brotherhood of Police
Officers.
Now, Mr. Weiner mentioned a couple of cases. He mentioned
the case of the gun shop in Tacoma, Washington, that had a
record of losing guns, of gross negligence, and he mentioned
Sanford Adams, who is a dealer in Maryland.
Both these cases have had a direct impact on my State of
Maryland. Sanford Abrams is a gun dealer in the State. As you
can see, he is one of the worst offenders. The ATF has said in
court documents that he is one of the most reckless sellers of
guns and they said, and I quote from the documents, ``a serial
violator who has endangered the public.''
And, yet, under existing law, they have not been successful
yet in revoking his license. And now we want to say, ``Let's
change the law and make it even harder.''
Mr. Weiner went through some of the statistics with respect
to Mr. Sanford's sales. The fact of the matter is, and he has
not disputed the substance of these, he had more than 900
violations of Federal gun laws, 900.
In 2003, the audit found that several machines guns had
been sold without proper records. A gun had been sold without
proper background check and 422 guns, and get this, 28 percent
of his inventory were missing, 28 percent of his inventory were
missing.
And under existing law, they haven't been able to revoke
his license. We want to make it even harder.
Now, with respect to the sales out of the gun shop in
Washington State, the victims were here in the Washington area.
I don't know how many people were here back in October 2002,
but this whole area was essentially under siege.
Many of my constituents were killed in those sniper
shootings. Other people in Washington, D.C., and Virginia were
killed. The owner of that gun shop in Washington State had a
record of losing his inventory.
And under this legislation, there would be absolutely no
recourse in going after him, except for his violations, which
would be considered petty, minor violations.
I just want to close with this, Mr. Chairman. I don't
understand why we were passing legislation----
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Van Hollen.--those who are the worst wrongdoers.
Thank you, Mr. Chairman.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The question is on the Weiner----
Mr. Meehan. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Massachusetts seek recognition?
Mr. Meehan. Strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Meehan. I would like to yield to the gentleman.
Mr. Van Hollen. I thank my colleague, Mr. Meehan.
I just want to go back to the fundamental question here,
which is under existing law, the ATF has found it difficult to
revoke the licenses of the worst abusers, a small percentage of
gun dealers responsible for the great percentage of guns used
in gun violence, under existing law.
And now we have to ask ourselves the question why are we
going to make it even more difficult for them to do it.
Let's listen to the folks from the ATF, who now have the
freedom to speak their mind, who aren't under the gag rule of
this Administration, people who have served the ATF in
Republican and Democratic administrations alike.
Why don't we listen to the folks in law enforcement and why
don't we look them in the eye and tell them why we are making
it more difficult for them to go after the people most
responsible for selling guns negligently and gross negligently
that find their way into the hands of----
Ms. Waters. Would the gentleman yield?
Mr. Van Hollen. Yes, I would be happy to yield.
Ms. Waters. I am sorry. Did you say that the guns that were
sold to Lee Malvo and John Muhammad, the snipers that killed
all of those people, were directly traceable to one of these
bad dealers that has been identified by ATF as a problem?
Were you alluding to them or talking about them?
Mr. Van Hollen. I was, indeed, a gun shop in the State of
Washington. And, in fact, the ATF has found a whole slew of
violations with respect--in fact, the guns that were sold to
Malvo and Muhammad were, in fact, sold illegally.
They were ineligible to buy guns and it turned out, when
the gun shop was asked about those particular guns, they had no
record of the sales. They just had disappeared. They had no
record of the sales.
Ms. Waters. And this bill would make it even easier for
this gun dealer to do that kind of thing?
Mr. Van Hollen. It would make it even more difficult for
the ATF to try and take away their license for the kind of
violations that they engaged in, yes.
Ms. Waters. Wow. Thank you. I yield back.
Ms. Jackson Lee. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the
gentlewoman from Texas seek recognition?
Ms. Jackson Lee. I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Jackson Lee. Mr. Chairman, I listened to my good friend
just a few minutes ago from California that mentioned the story
that--Mr. Issa is not here, but mentioned his relationship to
an ATF officer and suggested that comments might have been
strident.
As I am reminded of the arguments that I gave in support of
an amendment previously before this Committee, the arguments
and debate was based upon constitutional premise or Federal
court decision.
I stand by the representation that guns kill, bullets kill.
Different types of bullets create even more destructive
violence than others. Gun dealers not only sell guns, but they
sell bullets.
Therefore, this is a life or death question. And listen to
any of the major mayors of major cities and they will tell you
how difficult it is to fight the war on drugs and other violent
activities with the proliferation of guns on their streets.
We rely upon local law enforcement, but, as well, we rely
upon Federal authority. The ATF has been an effective tool in
breaking the gun cartels and the misuse and illegal selling of
guns across the country.
I, too, agree with my colleague, Mr. Van Hollen, that we
should listen to these former ATF officers, who have no axe to
grind whatsoever, and they have indicated in a letter to this
Committee that H.R. 5092 redefines most violations of Federal
laws as not of a serious nature.
It prohibits license revocations for such so-called non-
serious violations, no matter how egregious the violation. And
it limits serious violations to rare events.
That impedes the work of the ATF and it opens the doors to
the example that I utilized of the 2-year-old, because of
someone not responsible having a gun in their home and that
person not responsible may be someone with a record who has
been able to secure a gun through some misuse of the process of
gun dealers, who then have the guns going from one hand to the
next.
That gun dealer or that gun purchaser, even into their
home, puts the gun in an illegal place. It may be under a bed
and a child finds it.
This chain of violations does not end at the point of
purchase. This chain of violations then becomes a chain, one
illegal act to the next. A person who is not supposed to
legally be able to secure a gun misusing it, someone loses
their life or is severe injured, some law enforcement officer
doing their job is shot by a gun illegally secured, because the
ATF officer was not able to use a basic premise that the gun
dealer knew the infractions that they were perpetrating were
illegal and they were violating the law.
According to these ATF officers, H.R. 5092 also grants ATF
the ability to impose fines and temporary license suspension,
also then places such severe impediments on ATF's ability to
impose these sanctions and to make them nearly meaningless.
So H.R. 5092 may be well meaning to fix one problem with
one gun show in one city in one State, but, frankly, what it
does is causes dutiful law enforcement officers, taking an oath
of office, confined to doing their job right and who I believe,
if infracting or not doing their job right, certainly should
have their own internal reprimand.
But what we are doing now is playing in a handicap that
they cannot win. We are giving them the ninth inning, we are
giving them two-and-a-half outs, and we have no one on base and
we have someone coming that literally plays, if you will,
kindergarten softball to come hit the ball.
This is the wrong direction for us to take and the strident
nature of any one discussion is because it is a life and death
matter.
I certainly hope my colleagues would consider this as H.R.
5092 is continued to be debated.
And I yield back.
Chairman Sensenbrenner. The time of the gentlewoman has
expired. The question is on the substitute amendment offered by
the gentleman from New York, Mr. Weiner.
Anybody else want to say anything about it?
Okay, all those in favor of the Weiner substitute will say
``aye.''
Opposed, ``no.''
The noes appear to have it, and the noes have it, and the
Weiner substitute is not agreed to.
Mr. Weiner. Mr. Chairman, may I request a recorded vote?
Chairman Sensenbrenner. A record vote is requested.
Those in favor of the Weiner substitute will, as your names
are called, answer ``aye,'' those opposed, ``no.''
And the clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
Mr. Coble?
[No response.]
Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no.
Mr. Gallegly?
[No response.]
Mr. Goodlatte?
[No response.]
Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Mr. Lungren?
[No response.]
Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Mr. Bachus?
[No response.]
Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no.
Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no.
Mr. Green?
[No response.]
Mr. Keller?
[No response.]
Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no.
Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no.
Mr. Pence?
[No response.]
Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no.
Mr. King?
[No response.]
Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no.
Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no.
Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no.
Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye.
Mr. Berman?
[No response.]
Mr. Boucher?
Mr. Boucher. No.
The Clerk. Mr. Boucher, no.
Mr. Nadler?
[No response.]
Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye.
Mr. Watt?
[No response.]
Ms. Lofgren?
[No response.]
Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye.
Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye.
Mr. Delahunt?
[No response.]
Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye.
Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye.
Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye.
Ms. Sanchez?
[No response.]
Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye.
Mrs. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Mrs. Wasserman Schultz, aye.
Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there further Members who wish
to cast or change their vote?
The gentleman from North Carolina, Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. The gentleman from California, Mr.
Lungren.
Mr. Lungren. No.
The Clerk. Mr. Lungren, no.
Chairman Sensenbrenner. Are there further Members who wish
to cast or change their vote?
If not, the clerk will report.
The Clerk. Mr. Chairman, there are 10 ``ayes'' and 16
``nays.''
Chairman Sensenbrenner. And the amendment in the nature of
a substitute is not agreed to.
Are there further amendments?
Mr. Weiner. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Is there an amendment at the desk?
Mr. Weiner. Actually, Mr. Chairman, I will hold on that.
Chairman Sensenbrenner. Are there further amendments?
If there are no further amendments, the question is on the
amendment in the nature of a substitute offered by the
gentleman from North Carolina, Mr. Coble.
Those in favor will say ``aye.''
Opposed, ``no.''
The ayes appear to have it. The ayes have it. The amendment
in the nature of a substitute is agreed to.
A reporting quorum is present. The question is on the
motion to report the bill H.R. 5092 favorably, as amended.
All those in favor will say ``aye.''
Opposed, ``no.''
The ayes appear to have it. The ayes have it, and the bill
is ordered reported favorably, as amended.
Without objection, the bill will be reported favorably to
the House in the form of a single amendment in the nature of a
substitute, incorporating the amendments adopted here today.
Without objection, the staff is directed to make any
technical and conforming changes. And all Members will be given
2 days, as provided by the House rules, in which to submit
additional dissenting, supplemental or minority views.
[Additional material submitted by Mr. Conyers follows:]
[Intervening business.]
[Whereupon, at 3:46 p.m., the Committee was adjourned.]
DISSENTING VIEWS
We dissent from the passage of H.R. 5092, the ``BATFE
Modernization and Reform Act of 2006,'' and the approach that
it takes to deal with this very important issue.
As currently drafted, H.R. 5092 threatens to substantially
undermine BATFE's power to revoke the federal firearms licenses
of corrupt gun dealers. If enacted, the legislation would make
it virtually impossible for BATFE to shut down rogue gun
dealers who repeatedly violate federal law. It would largely
replace BATFE's revocation powers with minimal fines and
temporary license suspensions that BATFE could impose only if
it proved that a dealer deliberately intended to violate
federal law, an extreme standard for a civil penalty that is
more difficult to meet than the prevailing standard in most
criminal cases. Moreover, even if BATFE is able to meet this
extraordinary new burden of proof to impose minimal fines and
temporary suspensions, these sanctions would generally be
delayed for years while BATFE conducted new administrative
review procedures different from those that apply to other
regulated industries, and that strongly favor lawbreakers.
The negative impact that these provisions will undoubtedly
have on local municipalities and the efforts of various law
enforcement officials has produced a widespread coalition of
groups that have spoken out in opposition to this measure.
Specific groups or individuals expressing concerns with the
legislation include: The International Association of Chiefs of
Police; Bill Lockyer, Attorney General of the State of
California; Stephen Higgins, Former Director of the ATF; Rex
Davis, Former Director of the ATF; Joseph J. Vince, Jr., Former
Chief of ATF's Crime Gun Analysis Branch; William Vizzard,
Former ATF Special Agent in Charge; Gerald Nunziato, Former ATF
Special Agent in Charge; Julius Wachtel, Former ATF Resident
Agent in Charge; Frank Wandell, Former ATF Special Agent &
District Senior Operations Officer; Gerald C. Benedict, Former
ATF Special Agent in Charge; Michael R. Bloomberg, Mayor of New
York; Thomas M. Menino, Mayor of Boston; Gregory J. Nickels,
Mayor of Seattle; Tom Barrett, Mayor of Milwaukee; the Brady
Center to Prevent Gun Violence, and its affiliate, the Brady
Campaign to Prevent Gun Violence; the Violence Policy Center;
the Coalition to Stop Gun Violence; and Mayors Against Illegal
Guns.
It is for these reasons, and those that follow, that we
respectfully dissent.
I. H.R. 5092 Offers Greater Protections to Those Corrupt Gun Dealers
That Routinely Violate Current Law
Federal law currently places severe restraints on BATFE's
ability to revoke licenses from gun dealers who violate federal
law. Despite the fact that BATFE inspections often reveal
scores of violations of law by gun dealers, the revocation of a
dealer's federal firearms license is a rare event.
In fiscal year 2003, for example, BATFE completed 1,812
inspections that uncovered regulatory violations, with an
average of over 80 violations per dealer. Despite this large
number of dealers with multiple violations, BATFE issued only
54 notices of license revocation that year. In part, this is
due to the overly burdensome requirement that BATFE prove that
a dealer ``willfully'' violated the law, requiring proof that
the dealer not only broke the law but also knew that his or her
conduct was unlawful. This requirement that a dealer actually
know that he is breaking the law is extremely rare even in
criminal cases, let alone administrative agency actions.
Because of this standard, BATFE generally requires repeated
violations of the law over many years before it attempts to
revoke a license.
The following examples show the severe limits on BATFE's
current power to crack down on rogue gun dealers. As explained
below, H.R. 5092 makes a bad situation worse by giving greater
protection to gun dealers who violate the law.
BULL'S EYE SHOOTER SUPPLY, TACOMA, WASHINGTON
In fall 2002, John Allen Muhammad and John Lee Malvo
engaged in a series of deadly sniper shootings in the
Washington, DC area using a Bushmaster XM-15 semi-automatic
assault rifle. Muhammad and Malvo obtained the Bushmaster
assault rifle from gun dealer Bull's Eye Shooter Supply, even
though both snipers were prohibited from buying guns under
federal law. Malvo, the seventeen-year-old sniper, told
authorities that he simply walked out of the shop with the gun,
a scenario suggesting a shameful absence of security measures
to prevent theft. The shop had no record that the gun was sold
or lost and had never reported it missing. BATFE audits showed
that a total of 238 guns, including the snipers' assault rifle,
had ``disappeared'' from Bull's Eye in just three years and
over 50 of its guns had been traced to crimes between 1997 and
2001.
Based on Bull's Eye's failure to account for scores of
guns, in 2003, BATFE moved to revoke the federal firearms
license held by Bull's Eye's owner, Brian Borgelt. Borgelt
responded by appealing the revocation, alleging that BATFE had
not shown that Bull's Eye committed ``willful'' violations.
Borgelt also transferred operations of the shop to a friend,
while continuing to manage an upstairs shooting range. As of
2006, the store remains open and Borgelt continues to appeal
his license revocation in federal court. Under current law,
BATFE has already faced substantial hurdles in attempting to
revoke Borgelt's federal firearms license.
TRADER SPORTS, SAN LEANDRO, CALIFORNIA
Trader Sports has sold at least 337 guns traced to crime,
including guns involved in at least 27 homicides, 26 assaults,
2 robberies, and 282 additional gun crimes. Trader Sports has
also sold at least 3,091 handguns in ``multiple sales''--where
more than one handgun is sold to a single buyer within five
working days, a recognized indicator of possible gun
trafficking. In 2003, BATFE inspected Trader Sports' records
and found that an astonishing 7,477 firearmswere missing from
the store with no record of sale. After months of searching for records
of its lost firearms, Trader Sports still could not account for more
then 2,000 of its guns.
Based on repeated violations of federal law relating to
these missing guns, BATFE moved to revoke the federal firearms
license of Trader Sports' owner, Anthony Cucchiara, in 2004.
However, Cucchiara has continued to operate up until this year
by challenging BATFE's revocation attempt in court.
VALLEY GUN, BALTIMORE, MARYLAND
Sanford M. Abrams is a National Rifle Association Board
Member and has owned Valley Gun of Baltimore since 1996. Valley
Gun sold 483 firearms traced to crimes from 2000 to 2003,
ranking it in the top 40 of the highest crime gun dealers
nationwide.
Less than a year after Abrams began operating the store,
BATFE conducted an inspection and found numerous violations of
federal law, including 45 firearms that were listed in his
inventory books but were ``missing'' from the store. BATFE re-
inspected his store in 1999, 2000, and 2001. Each time BATFE
found more violations of federal law, and each time Abrams
promised to reform his practices and correct his violations.
In 2003, BATFE again inspected Valley Gun, this time
finding massive violations of federal law, including 422
firearms that were ``missing'' from his store with no record of
sale. He also failed to record the disposition of nearly all of
the guns that he repaired, recording only 19 out of 475
firearms. Abrams had numerous other violations, including
failing to properly fill out gun purchase forms and failing to
complete gun disposition records. Based on these hundreds of
violations of federal law, BATFE moved to revoke Abrams'
license in 2004. Abrams appealed the revocation and his appeal
was denied, however, federal law allowed him to continue
operating despite the 2004 revocation determination. Abrams now
faces revocation, although he has again appealed and asked that
the revocation be delayed while he continues his appeals. Under
current law, BATFE has already faced substantial hurdles in
attempting to revoke Valley Gun's federal firearms license.
II. H.R. 5092 Makes It Harder To Prosecute or Sanction Corrupt Gun
Dealers by Elevating Burden of Proof Requirements
H.R. 5092 redefines the burden of proof for violations of
federal gun laws to make it virtually impossible to prosecute,
sanction or revoke the licenses of corrupt gun dealers and to
prosecute all other gun law offenders, including gun
traffickers and violent criminals. Current law already imposes
a requirement that BATFE prove that violations of federal gun
laws are ``willful,'' an incredibly high burden which has
greatly hindered BATFE's ability to enforce gun laws and revoke
gun dealer licenses. H.R. 5092 redefines the ``willful''
standard of proof for gun law violations to make it even more
difficult to prove a violation of the law.
Since enactment of the Firearm Owners' Protection Act in
1986, the BATFE has relied upon a standard of willfulness
before pursuing a possible violation of a federal gun law. The
Supreme Court has held that ``willfully'' requires proof that a
defendant ``acted with knowledge that his conduct was
unlawful.'' Bryan v. U.S., 524 U.S. 184, 193 (1998). BATFE need
not also show that the defendant acted with the intent to break
the law. H.R. 5092 changes current law, to require proof that a
dealer not only knew the specific law he or she was violating
but also a showing of intentional disregard of that specific
legal duty. This is a very dangerous provision that is contrary
to Supreme Court precedent and would cripple BATFE's ability to
enforce federal gun laws.
H.R. 5092's requirement that BATFE prove a lawbreaker's
mental state would present a nearly insurmountable burden. The
courts have generally rejected this interpretation of the
meaning of ``willful,'' explaining that the willful standard
``does not require [a person] to set out purposely to violate
the Act,'' because if this was required, any remedy for a
willful violation ``would be a rare remedy indeed.'' Tijerina
v. Walters, 821 F.2d 789, 799 (D.C. Cir. 1987). The requirement
of intent to violate the law is exceedingly uncommon and is
generally limited only to criminal prosecutions of complex and
arcane tax laws. See Cheek v. U.S., 498 U.S. 192, 199 (1991).
There is no reason to extend this unique burden of proof to
protect felons who illegally acquire firearms or gun dealers
who violate federal laws regulating firearms sales.
The Supreme Court in Bryan noted that the Firearm Owners'
Protection Act, which imposed the willfulness standard for gun
law violations in 1986, ``was enacted to protect law-abiding
citizens who might inadvertently violate the law.'' Id. at 195
n.23. BATFE need not prove that a dealer had the ``intent to
act in violation of a known legal duty,'' as H.R. 5092 would
now mandate.
III. H.R. 5092 Establishes Two New Classifications of Violations and
Unwisely Limits BATFE's Enforcement Options According to Each Type of
Violation
The bill creates new classifications of federal gun laws as
serious and minor, and allows license revocation only for so-
called ``serious,'' willful violations. ``Serious'' violations,
as defined by H.R. 5092, would be rare and exclude many
violations that are in fact extremely serious and dangerous,
such as when a gun dealer has numerous weapons ``lost'' from
its inventory with no record of sale. Even so-called minor
violations would be nearly impossible to prove, as these also
would require a willful violation. For example, BATFE
occasionally revokes the licenses of corrupt dealers who fail
to maintain records for hundreds or thousands of firearms. It
would be nearly impossible for BATFE to prove that the failure
to maintain records was deliberate, purposeful and done with
the specific intent to break the law, as would be required to
prove both serious and so-called minor violations under H.R.
5092.
The bill defines a violation to be ``of a serious nature''
only if it is willful, which is newly defined to require
specific intent to break the law, see H.R. 5092 Sec. 4, and the
violation must also meet one of three definitions:
(1) A dealer specifically intends to break the law and such
a violation ``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.'' Proposed 18 U.S.C. Sec. 923(e)(1)(C)(i). This would
be extremely difficult for BATFE to prove, as most corrupt gun
dealers do not keep records that prove that a firearm was
intentionally transferred to a prohibited buyer. Instead, such
dealers have been cited for ``losing'' records for hundreds or
thousands of guns. Because it is the transfer of a firearm, and
not the act of losing a record, that would cause a firearm to
be transferred to a prohibited purchaser, corrupt dealers could
evade sanction under this section by ``losing'' or failing to
keep records proving such a violation.
(2) A dealer specifically intends to break the law and the
violation ``obstructs or could have obstructed a bona fide
civil or criminal investigation or prosecution.'' Proposed 18
U.S.C. Sec. 923(e)(1)(C)(ii). This standard would be very
difficult to meet, because it would require proof of intent to
violate the law in addition to proof that the willful violation
could have obstructed an ongoing investigation. As described
above, it would be incredibly difficult to prove that when a
dealer violated the law it actually did so with a specific
intent to break the law. In addition, while federal gun law
violations are serious because they frequently result in scores
of guns ``disappearing'' from gun dealer's shops, it is not the
norm that law enforcement is able to link missing firearms to a
specific investigation or prosecution, so a dealer's repeated,
dangerous violations would nonetheless be treated as minor.
(3) A dealer specifically intends to break the law and the
violation ``prevents or could have prevented a licensee from
complying with subsection (g)(7).'' Proposed 18 U.S.C.
Sec. 923(e)(1)(C)(iii). This relates to the rare case where a
violation would prevent a dealer from responding to an BATFE
request within 24 hours. Subsection (g)(7) only requires a
dealer to provide information actually contained in its
records--it does not address the problem of a dealer failing to
keep proper records.
Under H.R. 5092, BATFE would likely not be able to prove
that most violations of federal gun laws meet the new
definition of ``willful'' misconduct, as required for both
serious and so-called minor violations. Furthermore, most
serious violations of federal law would not meet the stringent
test for a ``serious'' violation under H.R. 5092.
A. THE INHERENT PROBLEMS ASSOCIATED WITH IMPOSING FINES UNDER THIS NEW
TWO-TIER SYSTEM
For so-called minor violations, H.R. 5095 proposes to
establish fines of no more than $1,000 per violation, and fines
of no more than $5,000 for all violations ``arising from a
single inspection or examination.'' Proposed 18 U.S.C.
Sec. 923(e)(1)(A)(i)(I). For ``serious'' violations, the fines
are no more than $2,500 per violation and no more than $15,000
for violations ``arising from a single inspection or
examination.'' Proposed 18 U.S.C. Sec. 923(e)(1)(A)(ii)(I).
Because all fines first require proof of a willful violation,
BATFE could not impose any fines unless it showed a deliberate
intent to violate the law, making it unlikely in most cases
that BATFE could impose any fines at all.
These fines for willful violations of federal gun laws are
also extremely low. For example, the Consumer Product Safety
Commission can impose fines on sellers of most unsafe consumer
products of $8,000 per violation, up to $1,825,000 for a
related series of violations. See 15 U.S.C. Sec. 2068; 69 Fed.
Reg. 68884 (Nov. 2004). The Environmental Protection Agency can
impose fines of between $2,500 and $25,000 per day for Clean
Water Act violations that are merely negligent. Knowing
violations are from $5,000 to $50,000 per day. See 33 U.S.C.
Sec. 1318(c). Similarly, the Federal Communications Commission
may impose fines for indecency of $32,500 for each violation or
each day of a continuing violation, up to $325,000 for
continuing violations, for broadcast stations, and $130,000 per
violation, up to $1,325,000 for continuing violations, for
common carriers. See 47 CFR Sec. 1.80(b)(1).
Another problem with this fine structure is that it limits
fines for violations arising from a single inspection or
examination. For example, if BATFE conducted an audit and found
1,000 missing firearms, the maximum fine could be only $5,000.
These fines reward the worst offenders by capping fines no
matter how many related violations have occurred. A gun dealer
with six ``serious'' violations would have the same maximum
fine as a gun dealer with 600 or even 6,000 ``serious'' related
violations--only $15,000.
Because of BATFE's extremely limited resources, it rarely
conducts inspections. When it does finally conduct an
inspection, it may find hundreds or thousands of violations.
But, under H.R. 5092, all violations found in the same audit
would be grouped together, with a maximum fine of only $15,000
for all so-called serious violations uncovered at the audit.
For example, BATFE recently revoked the license of Trader
Sports, a notorious California gun dealer. At an inspection,
BATFE found 7,477 firearms unaccounted for in inventory and
dozens of other willful violations of federal law. If these
thousands of violations were found in the same inspection, the
maximum fine would be $15,000, or an average fine of only a few
dollars per violation, so low as to be meaningless.
Proposed section 18 U.S.C. Sec. 923 (e)(1)(b)(ii) also
imposes a limit that the ``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.'' If anything, multiple firearms being illegally
sold are more serious, as this is a likely indicator of gun
trafficking. This should result in a higher penalty, not a
lower one.
B. THE PROBLEMS ASSOCIATED WITH PURSUING LICENSE SUSPENSION UNDER THIS
NEW SYSTEM
The bill allows license suspension of up to 30 days for so-
called minor willful violations and up to 90 days for
``serious'' willful violations. H.R. 5092 Sec. 2. The bill's
new definition of willful would require proof of a deliberate
intent to violate the law, making it unlikely that BATFE could
meet this difficult burden to suspend licenses in most cases.
Moreover, suspensions could only be imposed for so-called minor
violations if the gun dealer had violated federal gun laws on
two prior occasions.
Even if BATFE could overcome the hurdle of meeting the
bill's new definition of willful violations, this suspension
authority is extremely weak even compared to BATFE's current,
limited power to suspend firearms licenses. In 2005, Congress
gave BATFE the power to suspend firearms licenses for up to six
months if a licensee sells a handgun without providing a secure
gun storage or safety device. See 18 U.S.C. Sec. Sec. 922(z),
924(p). Yet under H.R. 5092, even so-called serious violations
could result in only a 90-day suspension. Congress should give
BATFE the power to suspend licenses for up to 6 months for all
violations of federal firearms laws.
Moreover, because BATFE has extremely limited resources and
rarely inspects gun dealers, it would take many years before
BATFE could prove three separate occasions in which a dealer
violates the law. If BATFE did finally find three separate
periods of violations, it would then have to begin the license
suspension process, which could take many additional years to
complete. In essence, BATFE could spend half a decade or more
attempting to temporarily suspend a license for up to 30 days,
a monumental effort that would hardly be worth BATFE's limited
resources.
Instead of this extremely weak suspension authority,
Congress should enact legislation that gives BATFE the power to
temporarily suspend licenses for up to 6 months when a gun
dealer has violated federal law. H.R. 5092 imposes severe
limitations on license suspension that would require an
extraordinarily heightened burden of proof to impose a
suspension and allows for years of administrative review and
litigation before a temporary suspension could be imposed.
C. PURSUING LICENSE REVOCATION UNDER THE NEW SYSTEM
As described above, H.R. 5092 would make it virtually
impossible to revoke a gun dealer's license even in cases of
repeated, egregious violations of federal gun laws. It would be
nearly impossible for BATFE to prove that most violations of
federal law, such as the violations of Bull's Eye Shooter
Supply, Trader Sports, and Valley Gun in the examples above,
were committed with the specific and purposeful intent to break
the law.
Moreover, most willful violations are defined under H.R.
5092 as violations that are ``not of a serious nature.'' H.R.
5092 allows revocation only for ``serious'' violations, so
revocation would not be allowed in so-called minor cases.
Bull's Eye Shooter Supply, Trader Sports, and Valley Gun
``lost'' hundreds of firearms from their inventory and they
repeatedly failed to keep proper records. After years of
egregious violations, BATFE was able to show willful misconduct
under current law because of these dealers' pattern of
violations over many years. Yet, under H.R. 5092, their
violations likely would not have resulted in any sanction, as
BATFE could not have proved, under the new definition of
``willful,'' that the dealers not only repeatedly violated the
law but also specifically intended to break the law. Even if
BATFE overcame this significant hurdle of proving intentional
violations, in order to revoke these dealers' licenses BATFE
would have to overcome yet another extraordinary burden of
proving that these illegal acts met the narrow definition in
H.R. 5092 for so-called serious violations.
If BATFE were somehow able to show that these dealers
intended to break the law, an outcome which courts recognize
``would be a rare [one] indeed,'' Tijerina, 821 F.2d at 799,
BATFE likely still could not have met the narrow definition of
a ``serious'' willful violation required to revoke a license.
Under H.R. 5092, a ``serious'' willful violation would require
a specific intent to break the law and proof that the
violation: (1) ``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,'' (2)
``obstructs or could have obstructed a bona fide civil or
criminal investigation or prosecution,'' or (3) ``prevents or
could have prevented a licensee from complying with subsection
(g)(7) [requiring dealer to provide its records to BATFE].''
H.R. 5092 Sec. 2. The dealers described above apparently
``lost'' records for hundreds of firearms, although BATFE
likely could not show that the dealers deliberately ``lost''
these records with the specific intent to break the law. BATFE
also likely could not show that the failure to keep records
could have caused a gun transfer to a prohibited buyer, as the
act of transferring a gun, rather than ``losing'' a record,
would result in the illegal transfer. Likewise, because it is
unusual for law enforcement to link missing guns to a specific
investigation or prosecution, a dealer's violation rarely would
be a willful violation that also could have obstructed a
specific investigation. Finally, 18 U.S.C. Sec. 923(g)(7)
merely requires dealers to provide records in their possession,
and so could not be used against dealers who had ``lost'' gun
records.
IV. H.R. 5092 Proposes to Unduly Delay BATFE's Ability to Impose Civil
Penalties Regardless of the Seriousness of the Underlying Violation
H.R. 5092 would also require BATFE automatically to stay
(postpone) a fine, suspension or revocation pending completion
of an administrative hearing, no matter how egregious the
violation. Proposed section (e)(2)(C). This standard strongly
favors the alleged violator. Instead, the burden should be on
the alleged violator to prove a likelihood of success on its
challenge, as is the standard for stays generally. See Cabo
Distribution Co., Inc. v. Brady, 821 F.Supp. 582, 594-95
(N.D.Cal. 1992) (in appeal of BATFE's revocation of liquor
labelingauthority, a plaintiff seeking a stay must prove a
``likelihood that plaintiff will prevail on the merits and the possible
harm to the parties from granting or denying the injunctive relief'');
see also Nelson v. Campbell, 541 U.S. 637, 649 (2004) (even in a case
seeking to stay the death penalty, courts require proof that a
defendant has a likelihood of success on the merits).
The bill further requires BATFE automatically to stay a
fine, suspension or revocation ``until there has been a final,
nonreviewable judgment with respect to the determination
involved.'' Proposed section (e)(3)(D). Again, this standard
strongly favors the alleged violator, allowing him to continue
operating, possibly for years, even if an administrative
hearing determines that the violation warrants severe
penalties. It encourages litigation, as prolonged litigation
allows violators to continue operating and avoid all penalties.
These provisions make license suspension and fines
essentially meaningless, because such a temporary suspension or
small fine would automatically be delayed for years if a
licensee asked for a mandatory stay.
V. H.R. 5092 Proposes to Allow Firearm Dealers to Continue Operating
(for a Maximum of 60 Days) Even After Their License Has Been Revoked
Section 9 of the bill would allow FFLs who violate federal
gun laws to operate and earn a profit by continuing to sell
guns even after they have had their license revoked for willful
violations of federal gun laws or to continue operating under
an expired license, to liquidate their inventory. This makes a
mockery of license revocation by essentially allowing FFLs to
evade revocation and continue operating even though they
committed federal crimes, and allows FFLs to temporarily avoid
renewing licenses as required by federal law to continue
selling guns. BATFE should have the discretion to allow or
disallow a short additional time to liquidate inventory
depending on the severity of the violations and likelihood of
continuing violations.
VI. H.R. 5092 Eliminates BATFE's Ability to Pursue Civil Penalties,
Subsequent to a Failed Criminal Proceeding
The bill greatly discourages BATFE from prosecuting
criminal gun dealers who violate federal gun laws. Proposed
section (f)(4) requires that if BATFE brings criminal charges
against an FFL and the FFL is acquitted, this voids civil fines
and penalties. Since the burden of proof on criminal charges is
greater than in civil cases, a criminal case should not void
civil penalties that have been proven under a civil standard.
The bill also prohibits BATFE from imposing fines, suspension
or revocation more than one year after an indictment, even if
the FFL is found guilty. Proposed section (f)(5). There is no
reason why BATFE should be prohibited from imposing civil
penalties on an FFL convicted of violating federal gun laws
simply because resolution of the criminal case took more than
one year.
VII. H.R. 5092 Unnecessarily Complicates the Current Inspection Process
This section redefines Section 922(m) of title 18 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, changing the requirement from ``properly
maintain[ing]'' records to simply ``retain[ing] custody of''
records. If dealers are not required to properly maintain
records, it makes it much more difficult for BATFE 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 BATFE to audit the dealer's records to discover violations.
DESCRIPTION OF AMENDMENTS OFFERED BY DEMOCRATIC MEMBERS
1. Amendment Offered by Rep. Anthony Weiner (#1)
Description of amendment: The Weiner amendment sought to
strike section 8 from the scope of the underlying bill. As
currently drafted, section 8 proposes to allow all firearms
dealers to continue operating (for a maximum of 60 days) for
purposes of liquidating inventories subsequent to a license
revocation proceeding.
The amendment was defeated by a vote of 4 to 18. Ayes:
Representatives Conyers, Weiner, Schiff, and Wasserman Schultz.
Nays: Representatives Coble, Smith, Chabot, Jenkins, Cannon,
Inglis, Hostettler, Keller, Forbes, King, Feeney, Franks,
Gohmert, Boucher, Scott, Sensenbrenner, Bachus, and Lungren.
2. Amendment Offered by Rep. Anthony Weiner (#2)
Description of amendment: The Weiner amendment sought to
amend the provisions of the underlying bill that currently (and
automatically) void any and all ongoing civil proceedings
against a particular dealer, if he or she is first acquitted on
similar criminal proceedings.
The amendment was defeated by a vote of 9 to 16. Ayes:
Representatives Conyers, Scott, Waters, Wexler, Weiner, Schiff,
Van Hollen, Wasserman Schultz, and Meehan. Nays:
Representatives Coble, Smith, Chabot, Jenkins, Cannon, Bachus,
Inglis, Keller, Forbes, King, Franks, Gohmert, Boucher,
Sensenbrenner, Lungren, and Feeney.
3. Amendment Offered by Rep. Anthony Weiner (#3)
Description of amendment: The Weiner amendment sought to
eliminate the bill's current proposed system of fines, and
replace it with a maximum fine of up to $10,000 for each gun
law violation.
The amendment was defeated by a vote of 8 to 20. Ayes:
Representatives Conyers, Jackson Lee, Waters, Wexler, Van
Hollen, Wasserman Schultz, Schiff, and Weiner. Nays:
Representatives Coble, Smith, Chabot, Jenkins, Cannon, Bachus,
Inglis, Keller, Issa, Forbes, King, Franks, Gohmert, Boucher,
Scott, Sensenbrenner, Lungren, Flake, Feeney, and Hostettler.
4. Amendment Offered by Rep. Sheila Jackson Lee
Description of amendment: The Jackson Lee amendment sought
to eliminate section 4, in its entirety, from the scope of the
underlying bill.
The amendment was defeated by a vote of 9 to 17. Ayes:
Representatives Conyers, Scott, Jackson Lee, Waters, Wexler,
Weiner, Schiff, Van Hollen, and Wasserman Schultz. Nays:
Representatives Coble, Smith, Chabot, Jenkins, Cannon, Inglis,
Hostettler, Issa, Flake, Forbes, King, Feeney, Franks, Gohmert,
Boucher, Sensenbrenner, and Lungren.
5. Amendment Offered by Rep. Anthony Weiner (#4)
Description of amendment: Rep. Weiner offered a substitute
amendment to the pending Coble amendment. The second degree
substitute proposed to make several changes to the text of the
underlying bill. For example, rather than capping fines at a
maximum of $15,000, under the Weiner amendment the BATFE could
impose fines of not more than $10,000 per violation for knowing
violations of federal law, after notice and a hearing.
Additionally, rather than allowing license suspension only for
certain rare violations or only after years of violations,
under the Weiner amendment the BATFE could suspend a license
for up to 6 months if a gun dealer is indicted for knowingly
violating federal law or knowingly violates federal law, after
notice and a hearing.
The amendment was defeated by a vote of 10 to 16. Ayes:
Representatives Conyers, Scott, Jackson Lee, Waters, Meehan,
Wexler, Weiner, Schiff, Van Hollen, and Wasserman Schultz.
Nays: Representatives Smith, Chabot, Jenkins, Cannon, Inglis,
Hostettler, Issa, Flake, Forbes, Feeney, Franks, Gohmert,
Boucher, Sensenbrenner, Coble and Lungren.
John Conyers, Jr.
Maxine Waters.
William D. Delahunt.
Anthony D. Weiner.
Linda T. Sanchez.
Debbie Wasserman Schultz.
Sheila Jackson Lee.
Martin T. Meehan.
Robert Wexler.
Chris Van Hollen.