Text: S.1973 — 112th Congress (2011-2012)All Bill Information (Except Text)

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Introduced in Senate (12/08/2011)


112th CONGRESS
1st Session
S. 1973

To prevent gun trafficking in the United States.


IN THE SENATE OF THE UNITED STATES
December 8, 2011

Mrs. Gillibrand (for herself, Mr. Schumer, Mr. Lautenberg, and Mr. Kerry) introduced the following bill; which was read twice and referred to the Committee on the Judiciary


A BILL

To prevent gun trafficking in the United States.

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

SECTION 1. Short title.

This Act may be cited as the “Gun Trafficking Prevention Act of 2012”.

SEC. 2. Findings.

Congress finds and declares that—

(1) in gun crimes occurring in New York City, approximately 90 percent of the guns used were originally sold in other States and moved across State lines before being recovered in crimes;

(2) according to the Federal Bureau of Investigation, in 2010, in the United States, 23 of all murders committed resulted from the use of a firearm, and 2,199 people under the age of 22 were murdered with a firearm;

(3) the Bureau of Alcohol, Tobacco, Firearms and Explosives (in this section referred to as the “ATF”) has found that straw purchasers are the largest source of guns trafficked into the illegal market;

(4) then Acting ATF Director Michael J. Sullivan’s April 19, 2007 testimony to the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, named as “significant regional, national and international trafficking corridors”—

(A) the Southwest Border;

(B) the I–95 corridor between Miami and Boston;

(C) Northern rural Mississippi to Chicago;

(D) Northern Indiana to Chicago;

(E) the triangle between Los Angeles, Las Vegas and Phoenix; and

(F) Birmingham to Chicago;

(5) there are approximately 2,500 agents, 824 Industry Operator Investigators, and 640 supervisory, field-based industry operations investigators responsible for inspecting approximately 120,000 Federal firearm licensees and 11,000 Federal explosive licensees;

(6) the average cycle of inspection is 7 to 10 years; and

(7) the ATF needs more resources to prevent guns from falling into the hands of those persons not legally allowed to possess them.

SEC. 3. Trafficking in firearms.

(a) In general.—Chapter 44 of title 18, United States Code, is amended by inserting at the end the following:

§ 932. Trafficking in firearms

“(a) In general.—

“(1) OFFENSE.—It shall be unlawful for any person knowingly, regardless of whether anything of value is exchanged—

“(A) to ship, transport, transfer, or otherwise dispose to a person, 2 or more firearms in or affecting interstate or foreign commerce, if the transferor knows or has reasonable cause to believe that such disposition would be in violation of, or would result in a violation of any Federal, State, or local law punishable by a term of imprisonment exceeding 1 year;

“(B) to receive from a person, 2 or more firearms in or affecting interstate or foreign commerce, if the recipient knows or has reasonable cause to believe that such receipt would be in violation of, or would result in a violation of any Federal, State, or local law punishable by a term of imprisonment exceeding 1 year;

“(C) except a licensed importer, licensed manufacturer, or licensed dealer, to make materially false statements to a licensed importer, licensed manufacturer, or licensed dealer, relating to the purchase, receipt, or acquisition from a licensed importer, licensed manufacturer, or licensed dealer of 2 or more firearms that have moved in or affected interstate or foreign commerce, for the person, or for or on behalf of any other person; or

“(D) to direct, promote, or facilitate conduct specified in subparagraph (A), (B), or (C).

“(2) PENALTY.—Any person who violates this section shall be fined under this title, imprisoned not more than 20 years, or both.

“(3) APPLICATION.—

“(A) AFFIRMATIVE DEFENSE.—It is an affirmative defense to any prosecution for a violation of subparagraph (A) or (B) of paragraph (1) or a violation of paragraph (1)(D) that relates to conduct specified in subparagraph (A) or (B) of paragraph (1) that the firearm at issue was transferred only after a background check on the actual buyer pursuant to section 922(t) indicated that the actual buyer's receipt of the firearm would not violate subsection (g) or (n) of section 922 or State law.

“(B) DEFINITIONS.—In this subsection—

“(i) the term ‘term of imprisonment exceeding 1 year’ does not include any offense classified by such jurisdiction as a misdemeanor and punishable by a term of imprisonment of 2 years or less; and

“(ii) the term ‘actual buyer’ means the individual for whom the firearm is being purchased, as described in paragraph (1)(C).

“(C) PURCHASE.—Paragraph (1) shall not apply to a firearm that is—

“(i) lawfully acquired by a person to be given to another person not prohibited from possessing a firearm under Federal, State, or local law as a gift; or

“(ii) lawfully received or otherwise acquired by a court-appointed trustee, receiver, or conservator for, or on behalf of, an estate or creditor or by a person to carry out a bequest, or an acquisition by intestate succession under the laws of the State of residence of the person.

“(b) Sentencing guidelines enhancements.—Pursuant to its authority under section 994(p) of title 28, United States Code, the United States Sentencing Commission shall amend the Federal Sentencing Guidelines to provide for an appropriate increase in the offense level for each of the following violations of this section, if the offense involves the shipping, transporting, transferring, disposing of, or receiving—

“(1) more than 4, but fewer than 15 firearms;

“(2) more than 14, but fewer than 25 firearms;

“(3) more than 24 but fewer than 100 firearms; and

“(4) 100 or more firearms.

“(c) Organizer.—If a violation of subsection (a) is committed by a person in concert with 5 or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, that person may be sentenced to an additional term of imprisonment of not more than 5 consecutive years.

“(d) Conspiracy.—Any person who attempts or conspires to commit any offense defined in this section may be subject to the same penalties, including those under subsections (b) and (c), as those prescribed for the completed offense.”.

(b) Technical and conforming amendment.—The table of sections of chapter 44 of title 18, United States Code, is amended by adding at the end the following:


“932. Trafficking in firearms.”.

SEC. 4. Cracking down on corrupt gun dealers.

(a) In general.—Section 923 of title 18, United States Code, is amended by striking subsections (e) and (f) and inserting the following:

“(e)(1) If the holder of a license issued under this section knowingly violates any provision of this chapter, chapter 53 of the Internal Revenue Code of 1986, the Arms Export Control Act (22 U.S.C. 2751 et seq.), or section 1001 of this title, or any rule or regulation as prescribed by the Attorney General, the Attorney General may—

“(A) assess on the licensee a civil penalty of not more than $2,500; and

“(B) suspend for not more than 6 months, or revoke, any license issued under this section.

“(2)(A) Except as provided in subparagraph (B), the Attorney General may, after notice and opportunity for hearing, assess a civil penalty on, or suspend or revoke any license issued to, a licensee under this section, if the licensee fails to have secure gun storage or safety devices available at any place in which firearms are sold under the license to persons who are not licensees.

“(B) Subparagraph (A) shall not apply in any case in which a secure gun storage or safety device is temporarily unavailable because of theft, casualty loss, consumer sales, backorders from a manufacturer, or any other similar reason beyond the control of the licensee, and the dealer shall not be considered to be in violation of the requirement to make available such a device.

“(3) The Attorney General may, after notice and opportunity for hearing, assess a civil penalty, suspend or revoke the license of a dealer who knowingly transfers armor piercing ammunition.

“(4) The Attorney General may suspend or revoke any license issued under this section if the holder of the license has been indicted for knowingly violating any provision of this chapter, chapter 53 of the Internal Revenue Code of 1986, the Arms Export Control Act (22 U.S.C. 2751 et seq.), or section 1001 of this title in a manner that could create a threat to public safety.

“(f)(1) Any person whose application for a license is denied and any holder of a license which is suspended or revoked or who is assessed a civil penalty shall receive written notice from the Attorney General stating specifically the grounds upon which the application was denied or upon which the license was suspended or revoked or the civil penalty assessed. Any notice of a fine, suspension, or revocation of a license shall be given to the holder of the license not less than 14 days before the effective date of the suspension, revocation, or imposition of a civil penalty, unless the Attorney General determines that good cause exists to waive such notification requirement, in which case notification shall be given as soon as practicable.

“(2) If the Attorney General denies an application for a license, or suspends or revokes a license, or assesses a civil penalty, the Attorney General shall, upon request by the aggrieved party, promptly hold a hearing to review the denial, suspension, revocation, or assessment. A hearing under this paragraph shall be held at a location convenient to the aggrieved party and shall be conducted pursuant to chapter 5 of title 5.

“(3) If, after a hearing held under paragraph (2), the Attorney General decides not to reverse the decision to deny an application or suspend or revoke a license or assess a civil penalty, the Attorney General shall give notice in writing of the decision to the aggrieved party. The aggrieved party may at any time within 60 days after the date of notice is given under this paragraph file a petition with the United States district court for the district in which the party resides or in which the party’s principal place of business is located for judicial review of the denial, suspension, revocation, or assessment. Such judicial review shall be conducted pursuant to chapter 7 of title 5. If the court decides that the Attorney General was not authorized to deny the application or to suspend or revoke the license or to assess the civil penalty, the court shall order the Attorney General to take such action as may be necessary to comply with the judgment of the court.”.

(b) Technical and conforming amendments.—

(1) SECTION 925 OF TITLE 18.—Section 925 of title 18, United States Code, is amended—

(A) by striking subsection (b);

(B) by redesignating subsections (c), (d), (e), and (f) as subsections (b), (c), (d), and (e), respectively; and

(C) in subsection (e), as redesignated, by striking “under subsection (d)” and inserting “under subsection (c)”.

(2) SECTION 922 OF TITLE 18.—Section 922(d) of title 18, United States Code, is amended in the matter following paragraph (9)—

(A) by striking “subsection (b) of section 925” and inserting “section 923(e)(4)”; and

(B) by striking “subsection (c)” and inserting “subsection (b)”.

(3) ARMS EXPORT AND CONTROL ACT.—Section 38(b)(1)(B)(i) of the Arms Export and Control Act (22 U.S.C. 2778(b)(1)(B)(i)) is amended by striking “section 925(e)” and inserting “section 925(d)”.

(4) ATOMIC ENERGY ACT OF 1954.—Section 161A of the Atomic Energy Act of 1954 (42 U.S.C. 2201a) is amended by striking “section 925(d)(3)” and inserting “section 925(c)(3)”.

SEC. 5. Change the standard for gun seller federal firearms license approval.

Section 923(d)(1) of title 18, United States Code, is amended—

(1) in subparagraph (C), by striking “willfully” and inserting “knowingly”; and

(2) in subparagraph (D), by striking “willfully” and inserting “knowingly”.

SEC. 6. Strengthen penalties for record-keeping violations.

Section 924(a)(3) of title 18, United States Code, is amended in the flush text following subparagraph (B) by striking “one year” and inserting “3 years”.

SEC. 7. Cracking down on High Risk Gun Dealers.

Section 923 of title 18, United States Code is amended by adding the following:

“(m)(1) Not less than once each year, the Attorney General shall identify licensed firearms dealers who have a heightened risk of firearms being diverted to criminal use based on criteria determined by the Attorney General which may include 2 or more of the following:

“(A) Short time-to-crime for crime guns traced to a dealer.

“(B) Incomplete crime gun trace results for firearms sold by a dealer.

“(C) Significant or frequently reported firearm losses or thefts by a dealer.

“(D) Violations of Federal firearms laws by a dealer.

“(E) Any additional criteria determined by the Attorney General.

“(2)(A) The Attorney General may impose special conditions on dealers determined to be subject to a heightened risk of diversion under paragraph (1) after written notice 14 days in advance, including—

“(i) inspection or examination of inventory and records, notwithstanding subsection (g)(1)(B);

“(ii) requirements that the dealer secure firearms at its business premises in a manner to be determined by the Attorney General;

“(iii) mandatory inventory check and reconciliation of firearms at the business premises by the dealer in a manner to be determined by the Attorney General and notwithstanding any other provision of Federal law;

“(iv) notwithstanding section 922(t)(1)(B)(ii), a requirement that the dealer not complete firearm sales or transfers until the national instant criminal background check system has informed the dealer that the sale or transfer may proceed; and

“(v) require that the dealer and employees undergo special training in how to avoid illegal sales.

“(B) Conditions may be imposed on a dealer identified as a high-risk dealer under this paragraph for no longer than 1 year, unless the Attorney General determines that the dealer continues to have a heightened risk of firearms being diverted to criminal use. The Attorney General shall notify the dealer in writing of any such conditions imposed on such dealer.

“(3) After the Attorney General has identified a dealer as a high-risk dealer and has imposed conditions on that dealer, a knowing violation by the dealer of any condition imposed under this subsection shall be considered a willful violation of this chapter, for the purposes of section 924(a)(1)(D).

“(4)(A) Any dealer identified as a high-risk dealer under paragraph (1) may challenge the designation by requesting a hearing in writing to review within 60 days after notice of such designation.

“(B) If after a hearing held under subparagraph (A) the Attorney General decides not to reverse the designation of the dealer as a high-risk dealer, the Attorney General shall give notice of the decision to the dealer. The dealer may at any time within 60 days after the date notice is given under this subparagraph file a petition with the United States district court for the district in which the party resides or in which the party’s principal place of business is located for judicial review of the Attorney General’s designation. Such judicial review shall be conducted pursuant to chapter 7 of title 5.

“(5) Nothing in this subsection shall be construed to limit the authority of the Attorney General under section 926.”.

SEC. 8. Government Accountability Office study on lost and stolen firearms.

(a) Definition.—For the purposes of this section the term “firearm”—

(1) means any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive and the frame or receiver of any such weapon; and

(2) does not include an antique firearm, as defined in section 921 of title 18, United States Code.

(b) Study.—The Comptroller General of the United States shall conduct a study on firearms in the United States that are lost or stolen during commercial shipping, including—

(1) determining the number of firearms that are lost or stolen during commercial shipping on average per year;

(2) identifying how firearms are being lost or stolen during commercial shipping;

(3) what efforts, if any, to reduce the number of firearms that are lost or stolen during commercial shipping are being made by—

(A) Federal law enforcement agencies;

(B) firearm manufacturers;

(C) firearm dealers; and

(D) shipping companies that transport firearms; and

(4) the role that firearms lost or stolen during commercial shipping play in interstate and international gun trafficking.

(c) Report.—Not later than 1 year after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress a report that contains—

(1) the results of the study required under subsection (a); and

(2) recommendations for how to reduce the number of firearms that are lost or stolen during commercial shipping.

SEC. 9. Authority to Hire Personnel to Address Trafficking in firearms.

(a) In general.—The Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives may hire additional personnel sufficient for a firearms trafficking team of additional agents, Industry Operations Investigators, and analysts that would enable the average inspections rate of gun dealers to operate on a 3-year inspection cycle.

(b) Authority To hire personnel To address trafficking in firearms.—

(1) IN GENERAL.—The Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives shall hire 500 additional Industry Operations Investigators and 1,000 additional Special Agents, subject to the availability of appropriations, for the purpose of addressing trafficking in firearms, as described in section 932 of title 18, United States Code, as added by this Act.

(2) AUTHORITY.—There are authorized to be appropriated for the hiring and maintenance of 500 additional Industry Operations Investigators and 1,000 additional Special Agents such sum as are necessary—

(A) for fiscal year 2013, to hire 125 Industry Operations Investigators and 250 Special Agents;

(B) for fiscal year 2014, to hire 125 Industry Operations Investigators and 250 Special Agents;

(C) for fiscal year 2015, to hire 125 Industry Operations Investigators and 250 Special Agents; and

(D) for fiscal year 2016, to hire 125 Industry Operations Investigators and 250 Special Agents.