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S 835

112th CONGRESS
1st Session

S. 835

To reform the Bureau of Alcohol, Tobacco, Firearms, and Explosives, modernize firearms laws and regulations, protect the community from criminals, and for other purposes.

IN THE SENATE OF THE UNITED STATES

April 14, 2011

Mr. CRAPO (for himself and Mr. LEAHY) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To reform the Bureau of Alcohol, Tobacco, Firearms, and Explosives, modernize firearms laws and regulations, protect the community from criminals, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the `Bureau of Alcohol, Tobacco, Firearms, and Explosives Reform and Firearms Modernization Act of 2011'.

SEC. 2. TABLE OF CONTENTS.

    The table of contents of this Act is as follows:

      Sec. 1. Short title.

      Sec. 2. Table of contents.

TITLE I--BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES MODERNIZATION AND REFORM

      Sec. 101. Graduated penalties for civil violations by Federal firearms licensees.

      Sec. 102. Consideration of Federal firearms license applications.

      Sec. 103. Definition of willfully.

      Sec. 104. Establishment of formal inspection, examination, and investigative guidelines.

      Sec. 105. Liquidation of inventory in Federal firearms license expiration, surrender, or revocation cases.

      Sec. 106. Opportunity to cure violations after acquisition of firearms business.

      Sec. 107. Standards for criminal violations of recordkeeping requirements.

      Sec. 108. Effective date.

TITLE II--FIREARMS CORRECTIONS AND IMPROVEMENTS

      Sec. 201. Correction of nonsubstantive error in age limit provision.

      Sec. 202. Possession of machineguns for industry testing, training, and film production.

      Sec. 203. Elimination of obsolete language added by the Brady Handgun Violence Prevention Act.

      Sec. 204. Elimination of written permission requirement for supervised handgun use.

      Sec. 205. Modification of procedures for sharing of multiple handgun sales reports.

      Sec. 206. Ban on electronic retrieval of inactive licensee information.

      Sec. 207. Barrel and receiver importation.

      Sec. 208. Clarifications relating to manufacturing of firearms.

TITLE I--BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES MODERNIZATION AND REFORM

SEC. 101. GRADUATED PENALTIES FOR CIVIL VIOLATIONS BY FEDERAL FIREARMS LICENSEES.

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

    `(e)(1)(A) If the Attorney General determines that a licensee under this section has willfully violated any provision of this chapter or any regulation prescribed under this chapter, the Attorney General may--

      `(i) if the violation is of a minor nature--

        `(I) for a first such violation, issue a written warning to the licensee; and

        `(II) for a second or subsequent such violation--

          `(aa) impose on the licensee a civil money penalty of not more than $500 for each such violation, with no interest to accrue on the amount of such a penalty, except that the total amount of penalties imposed on a licensee under this subclause--

            `(AA) for violations arising from a single inspection or examination shall not exceed $2,500; and

            `(BB) for a single calendar year shall not exceed $5,000; or

          `(bb) 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 $1,500 for each such violation, with no interest to accrue on the amount of such a penalty, except that the total amount of penalties imposed on a licensee under this subclause--

          `(aa) for a violation arising from a single inspection or examination shall not exceed $7,500; and

          `(bb) for a single calendar year shall not to 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 $7,500, and the total of all such penalties for a single calendar year 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) of this paragraph.

    `(C) On timely receipt from the licensee of a request for a review described in subparagraph (B), the Attorney General shall stay the imposition under paragraph (1) of any penalty involved, pending resolution of the review, unless, in the case of a suspension or revocation of a licensee, the Attorney General establishes, at a hearing before an administrative law judge, by clear and convincing evidence, that the continued operation by the licensee of the business poses an immediate and grave threat to public safety.

    `(3)(A) Within 90 days after timely receipt from a licensee of a request to review a determination made under paragraph (1) (or at such later time as is agreed to by the Attorney General and the licensee), an administrative law judge shall hold a hearing, at a location convenient to the licensee, to review the determination.

    `(B) Not less than 30 days before a hearing described in subparagraph (A), 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 a hearing described in subparagraph (A), the administrative law judge shall issue a written decision setting forth findings of fact and conclusions of law, and a decision as to whether to affirm, modify, or reverse the determination.

    `(D) On request of the licensee, the Attorney General shall stay the effective date of any penalty, suspension, or revocation until there has been a final, nonreviewable judgment with respect to the determination involved, unless, in the case of a suspension or revocation of a licensee, the Attorney General establishes, at a hearing before an administrative law judge, by clear and convincing evidence, that the continued operation by the licensee of the business poses an immediate and grave threat to public safety.

    `(E) The action of an administrative law judge under this subsection shall be considered final agency action for all purposes, and may be reviewed only as provided in subsection (f).

    `(4) This subsection shall not be interpreted to affect the authority of the Attorney General under section 922(t)(5).

    `(f)(1) Within 60 days after a party receives a notice issued under subsection (d)(3) of a decision to deny a license, or a notice issued under subsection (e)(3)(C) of a determination to impose a civil money penalty or to suspend or revoke a license, the party may file a petition with the United States district court for the district in which the party resides or has a principal place of business for a de novo review of the decision or determination.

    `(2) In a proceeding conducted under this subsection, 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 determines that the licensee did not willfully violate 1 or more provisions of this chapter or 1 or more regulations prescribed under this chapter, the court shall--

      `(A) vacate the revocation, suspension, or fine, and remand the matter to the Attorney General for further consideration; and

      `(B) award to the licensee a reasonable attorney's fee with respect to any part of the decision or determination on which the licensee prevails.

    `(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. The Attorney General may not institute a proceeding to suspend or revoke a license granted under this chapter, or to impose a civil money penalty under subsection (e), more than 1 year after the filing of the indictment or information.'.

    (b) Conforming Amendment to Procedure Applicable to Denial of Application for License- Section 923(d) of title 18, United States Code, is amended by adding at the end the following:

    `(3) If the Attorney General denies an application for a license, an administrative law judge of the Department of Justice shall, on request by the aggrieved party, promptly hold a hearing to review the denial, at a location convenient to the aggrieved party. If, after the hearing, the administrative law judge decides not to reverse the denial, the administrative law judge shall give notice of the final denial decision to the aggrieved party.'.

SEC. 102. CONSIDERATION OF FEDERAL FIREARMS LICENSE APPLICATIONS.

    (a) In General- Section 923(d) of title 18, United States Code, as amended by section 101(b) of this Act, is amended--

      (1) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and

      (2) by 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 title 18, United States Code, as amended by section 101(a) of this Act, is amended by striking `(d)(3)' each place it appears and inserting `(d)(4)'.

SEC. 103. DEFINITION OF WILLFULLY.

    Section 923(e) of title 18, United States Code, as amended by section 101(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. 104. ESTABLISHMENT OF FORMAL INSPECTION, EXAMINATION, AND INVESTIGATIVE GUIDELINES.

    (a) In General- 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.

    (b) Personnel Matters- In no case shall the amount of fines imposed on licensees under chapter 40 or 44 of title 18, United States Code, or the number of warnings issued, or suspensions or revocations of licenses under such chapters, be considered in the retention, promotion, or transfer of any officer, agent, or employee of the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

SEC. 105. LIQUIDATION OF INVENTORY IN FEDERAL FIREARMS LICENSE EXPIRATION, SURRENDER, OR REVOCATION CASES.

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

    `(m)(1) Except as provided in paragraph (2), a person whose license issued under this chapter is expired, surrendered, or revoked shall be afforded 60 days from the effective date of the expiration, surrender, or revocation to liquidate the firearms inventory of the person, which time may be extended upon a showing of reasonable cause. During such 60-day period (including any extension of the period), the license involved shall continue to be considered valid.

    `(2) Paragraph (1) shall not apply with respect to a person if a United States district court for the judicial district in which the person resides or in which the principal place of business of the person subject to the license is located finds, by clear and convincing evidence, that the continued operation by the person of the business poses an immediate and grave threat to public safety.'.

SEC. 106. OPPORTUNITY TO CURE VIOLATIONS AFTER ACQUISITION OF FIREARMS BUSINESS.

    Section 923 of title 18, United States Code, as amended by section 106 of this Act, is 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. 107. 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. 108. EFFECTIVE DATE.

    This title and the amendments made by this title shall take effect 180 days after the date of enactment of this Act.

TITLE II--FIREARMS CORRECTIONS AND IMPROVEMENTS

SEC. 201. CORRECTION OF NONSUBSTANTIVE ERROR IN AGE LIMIT PROVISION.

    Section 922(b)(1) of title 18, United States Code, is amended to read as follows:

      `(1) any firearm or ammunition to any individual who the licensee knows or has reasonable cause to believe has not attained 18 years of age, and, if the firearm is other than a shotgun or rifle, or the ammunition is for a firearm other than a shotgun or rifle, to any individual who the licensee knows or has reasonable cause to believe has not attained 21 years of age;'.

SEC. 202. POSSESSION OF MACHINEGUNS FOR INDUSTRY TESTING, TRAINING, AND FILM PRODUCTION.

    (a) Post-1986 Machineguns for Testing, Research and Development- Section 922(o)(2) of title 18, United States Code, is amended--

      (1) in subparagraph (A), by striking `or' at the end;

      (2) by redesignating subparagraph (B) as subparagraph (E); and

      (3) by inserting after subparagraph (A) the following:

      `(B) a transfer to, or possession by, a licensed manufacturer or licensed importer solely for testing, research, design, or development of ammunition or a firearm;

      `(C) a possession by a licensed manufacturer or licensed importer for the purposes of training persons to whom a machinegun, manufactured or imported by the licensee, may be transferred as described in subparagraph (A);

      `(D) a transfer to or possession by a licensed manufacturer, licensed importer, or licensed dealer for a professional theatrical purpose if the licensee--

        `(i) is registered under section 5802 of the National Firearms Act;

        `(ii) holds a valid permit or license under State law to engage in business as a theatrical firearms dealer or equivalent statutory designation;

        `(iii) derives not less than 80 percent of income from the firearms business from the use of firearms by professional motion picture or television productions that are distributed to or produced for a national or international audience;

        `(iv) before possessing a machinegun under this subparagraph, provides the Attorney General with documentation that--

          `(I) the licensee meets the requirements of clauses (i) through (iii); and

          `(II) the transfer or possession, as the case may be, is for such purpose; and

        `(v) establishes that the number of machineguns sought by the licensee is reasonable for the film, production, or performance for which the machineguns are requested; or'.

    (b) Importation of Machineguns- Section 925(d) of title 18, United States Code, is amended--

      (1) in paragraph (3), by striking `or' at the end;

      (2) in paragraph (4), by striking the period and inserting a semicolon; and

      (3) by inserting after paragraph (4) the following:

      `(5) is imported or brought in for a purpose described in section 922(o)(2); or

      `(6) is a machinegun being imported or brought in for a purpose described in section 922(o)(2)(D).'.

    (c) Importation Under the National Firearms Act- Section 5844 of the National Firearms Act (26 U.S.C. 5844) is amended--

      (1) in paragraph (2), by striking `or' at the end; and

      (2) by inserting after paragraph (3) the following:

      `(4) a machinegun being imported or brought in by a registered importer or registered manufacturer for the purpose of training persons who acquire machineguns pursuant to paragraph (1) that were manufactured or imported by the registrant; or

      `(5) a machinegun being imported or brought in for a purpose described in section 922(o)(2)(D) of title 18, United States Code;'.

    (d) Professional Theatrical Purpose Defined- Section 921(a) of title 18, United States Code, is amended by adding at the end the following:

    `(36) The term `professional theatrical purpose' means the use of firearms in a motion picture or television production which is expected to be produced, distributed, marketed, or shown by a member of a nationally recognized professional trade association related primarily to motion picture and television production, as determined by the Attorney General.'.

    (e) Effective Date- The amendments made by this section shall take effect 180 days after the date of enactment of this Act.

SEC. 203. ELIMINATION OF OBSOLETE LANGUAGE ADDED BY THE BRADY HANDGUN VIOLENCE PREVENTION ACT.

    Section 922 of title 18, United States Code, is amended--

      (1) by striking subsection (s); and

      (2) in subsection (t)(1), by striking `Beginning' and all that follows through `a licensed' and inserting `A licensed'.

SEC. 204. ELIMINATION OF WRITTEN PERMISSION REQUIREMENT FOR SUPERVISED HANDGUN USE.

    Section 922(x)(3)(A) of title 18, United States Code, is amended--

      (1) in clause (ii), by striking subclause (II) and inserting the following:

          `(II) with respect to ranching or farming activities, target practice, hunting, or a course of instruction in the safe and lawful use of a handgun, as described in clause (i), a juvenile may possess and use a handgun or ammunition without the prior written consent, if the parent or legal guardian is present at all times and the juvenile acts at the direction of a parent, legal guardian, or other adult who is not prohibited by Federal, State, or local law from possessing a firearm;'; and

      (2) in clause (iii), by inserting `except as provided in clause (ii)(II),' after `(iii)'.

SEC. 205. MODIFICATION OF PROCEDURES FOR SHARING OF MULTIPLE HANDGUN SALES REPORTS.

    Section 923(g)(3)(A) of title 18, United States Code, is amended--

      (1) by striking `and to the department of State police' and all that follows through `took place'; and

      (2) by adding at the end the following: `On request by a State or local law enforcement agency of the jurisdiction in which the sale or other disposition took place, the Attorney General may provide the report to the agency, unless the agency failed to make the certification required by subparagraph (B) for the most recent 6-month period for which the certification is so required.'.

SEC. 206. BAN ON ELECTRONIC RETRIEVAL OF INACTIVE LICENSEE INFORMATION.

    Subsection 923(g)(4) of title 18, United States Code, is amended by adding at the end the following: `The Attorney General shall not electronically retrieve information gathered pursuant to this paragraph by name or by any personal identification code.'.

SEC. 207. BARREL AND RECEIVER IMPORTATION.

    (a) In General- Section 925(e) of title 18, United States Code, is amended--

      (1) in paragraph (1), by striking `, and' and inserting a period;

      (2) by adding at the end the following:

      `(3) All frames or receivers of rifles, or barrels for firearms other than handguns, if the importation is for repair or replacement purposes.'.

    (b) Governmental Imports- Section 925(a)(1) of title 18, United States Code, is amended by inserting `, barrel,' after `or importation of any firearm'.

SEC. 208. CLARIFICATIONS RELATING TO MANUFACTURING OF FIREARMS.

    (a) Clarification of Definition of Manufacturing- Section 921(a)(10) of title 18, United States Code, is amended by adding at the end the following: `The term `manufacturing' shall not include repairing firearms, making or fitting special barrels, stocks, trigger mechanisms, or other parts to firearms, or engraving or otherwise altering the appearance of firearms.'.

    (b) Clarification of Definition of Dealer- Section 921(a)(11)(B) of title 18, United States Code, is amended by striking `or trigger mechanisms to firearms' and inserting `trigger mechanisms, or other parts to firearms, or engraving or otherwise altering the appearance of firearms'.

END