I

103D CONGRESS

2D SESSION H. R. 3912

To prohibit the receipt of explosives without a Federal permit, and to provide

for a waiting period before the purchase of explosives.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 24, 1994

Mr. QUINN (for himself, Mr. HOCHBRUECKNER, Mr. BLUTE, Mr. KING, Mr.

LEVY, Mr. HOUGHTON, Mr. WALSH, Mr. LAZIO, Mr. CASTLE, and Ms.

MOLINARI) introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To prohibit the receipt of explosives without a Federal permit, and to provide for a waiting period before the purchase of explosives.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Explosives Control Act

5 of 1994’’.
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1 SEC. 2. PROHIBITION AGAINST THE RECEIPT OF EXPLO2 SIVE MATERIALS WITHOUT A FEDERAL PER3 MIT.

4 Section 842 of title 18, United States Code, is

5 amended—

6 (1) by amending subsection (a)(3)(A) to read as

7 follows:

8 ‘‘(A) to transport, ship, or cause to be

9 transported in interstate or foreign commerce

10 any explosive materials, or to receive in inter11 state or foreign commerce any explosive mate12 rials (other than black powder or smokeless

13 powder, in amounts less than 50 pounds); or’’;

14 and

15 (2) in subsection (b)—

16 (A) by adding ‘‘or’’ at the end of para17 graph (1);

18 (B) by striking ‘‘; or’’ in paragraph (2)

19 and inserting a period;

20 (C) by striking paragraph (3); and

21 (D) by adding at the end the following new

22 sentence:

23 ‘‘The preceding sentence shall not apply to the distribution

24 of black powder or smokeless powder in amounts of less

25 than 50 pounds.’’.
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1 SEC. 3. FEDERAL EXPLOSIVES LICENSEE REQUIRED TO

2 CONDUCT CRIMINAL BACKGROUND CHECK

3 BEFORE TRANSFER OF EXPLOSIVE MATE4 RIALS TO NON-LICENSEE.

5 (a) IN GENERAL.—Section 842 of title 18, United

6 States Code, is amended by adding at the end the follow7 ing:

8 ‘‘(l)(1) Beginning on the date that is 90 days after

9 the date of enactment of this subsection and ending on

10 the day before the date that is 60 months after November

11 30, 1993, it shall be unlawful for any licensee to sell, de12 liver, or transfer explosive materials to an individual who

13 is not a licensee, unless—

14 ‘‘(A) after the most recent proposal of such

15 transfer by the transferee—

16 ‘‘(i) the transferor has—

17 ‘‘(I) received from the transferee a

18 statement of the transferee containing the

19 information described in paragraph (3);

20 ‘‘(II) verified the identity of the trans21 feree by examining the identification docu22 ment presented;

23 ‘‘(III) within 1 day after the trans24 feree furnishes the statement, provided no25 tice of the contents of the statement to the
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1 chief law enforcement officer of the place

2 of residence of the transferee; and

3 ‘‘(IV) within 1 day after the trans4 feree furnishes the statement, transmitted

5 a copy of the statement to the chief law

6 enforcement officer of the place of resi7 dence of the transferee; and

8 ‘‘(ii)(I) 5 business days (meaning days on

9 which State offices are open) have elapsed from

10 the date the transferor furnished notice of the

11 contents of the statement to the chief law en12 forcement officer, during which period the

13 transferor has not received information from

14 the chief law enforcement officer that receipt or

15 possession of the explosive materials by the

16 transferee would be in violation of Federal,

17 State, or local law; or

18 ‘‘(II) the transferor has received notice

19 from the chief law enforcement officer that the

20 officer has no information indicating that re21 ceipt or possession of the explosive materials by

22 the transferee would violate Federal, State, or

23 local law;

24 ‘‘(B)(i) the transferee has presented to the

25 transferor a permit that—
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1 ‘‘(I) allows the transferee to possess or ac2 quire explosive materials; and

3 ‘‘(II) was issued not more than 5 years

4 earlier by the State in which the transfer is to

5 take place; and

6 ‘‘(ii) the law of the State provides that such a

7 permit is to be issued only after an authorized gov8 ernment official has verified that the information

9 available to such official does not indicate that pos10 session of explosive materials by the transferee

11 would be in violation of the law;

12 ‘‘(C) the law of the State requires that, before

13 any licensee completes the transfer of explosive ma14 terials to an individual who is not a licensee, an au15 thorized government official verify that the informa16 tion available to such official does not indicate that

17 possession of explosive materials by the transferee

18 would be in violation of law;

19 ‘‘(D) the Secretary has approved the transfer

20 under section 5812 of the Internal Revenue Code of

21 1986; or

22 ‘‘(E) on application of the transferor, the Sec23 retary has certified that compliance with subpara24 graph (A)(i)(III) is impracticable because—
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1 ‘‘(i) the ratio of the number of law enforce2 ment officers of the State in which the transfer

3 is to occur to the number of square miles of

4 land area of the State does not exceed 0.0025;

5 ‘‘(ii) the business premises of the trans6 feror at which the transfer is to occur are ex7 tremely remote in relation to the chief law en8 forcement officer; and

9 ‘‘(iii) there is an absence of telecommuni10 cations facilities in the geographical area in

11 which the business premises are located.

12 ‘‘(2) A chief law enforcement officer to whom a trans13 feror has provided notice pursuant to paragraph

14 (1)(A)(i)(III) shall make a reasonable effort to ascertain

15 within 5 business days whether receipt or possession would

16 be in violation of the law, including research in whatever

17 State and local recordkeeping systems are available and

18 in a national system designated by the Attorney General.

19 ‘‘(3) The statement referred to in paragraph

20 (1)(A)(i)(I) shall contain only—

21 ‘‘(A) the name, address, and date of birth ap22 pearing on a valid identification document (as de23 fined in section 1028(d)(1)) of the transferee con24 taining a photograph of the transferee and a de25 scription of the identification used;
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1 ‘‘(B) a statement that transferee—

2 ‘‘(i) is not under indictment for, and has

3 not been convicted in any court of, a crime pun4 ishable by imprisonment for a term exceeding 1

5 year;

6 ‘‘(ii) is not a fugitive from justice;

7 ‘‘(iii) is not an unlawful user of or addicted

8 to any controlled substance (as defined in sec9 tion 102 of the Controlled Substances Act);

10 ‘‘(iv) has not been adjudicated as a mental

11 defective or been committed to a mental institu12 tion;

13 ‘‘(v) is not an alien who is illegally or un14 lawfully in the United States;

15 ‘‘(vi) has not been discharged from the

16 Armed Forces under dishonorable conditions;

17 and

18 ‘‘(vii) is not a person who, having been a

19 citizen of the United States, has renounced

20 such citizenship;

21 ‘‘(C) the date the statement is made; and

22 ‘‘(D) notice that the transferee intends to ob23 tain explosive materials from the transferor.

24 ‘‘(4) Any transferor of explosive materials who, after

25 such transfer, receives a report from a chief law enforce-
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1 ment officer containing information that receipt or posses2 sion of the explosive materials by the transferee violates

3 Federal, State, or local law shall, within 1 business day

4 after receipt of such request, communicate all information

5 related to the transfer that the transferor has about the

6 transfer and the transferee to—

7 ‘‘(A) the chief law enforcement officer of the

8 place of business of the transferor; and

9 ‘‘(B) the chief law enforcement officer of the

10 place of residence of the transferee.

11 ‘‘(5) Any transferor who receives information, not

12 otherwise available to the public, in a report under this

13 subsection shall not disclose such information except to

14 the transferee, to law enforcement authorities, or pursuant

15 to the direction of a court of law.

16 ‘‘(6)(A) Any transferor who sells, delivers, or other17 wise transfers explosive materials to a transferee shall re18 tain the copy of the statement of the transferee with re19 spect to the explosive materials transaction, and shall re20 tain evidence that the transferor has complied with

21 subclauses (III) and (IV) of paragraph (1)(A)(i) with re22 spect to the statement.

23 ‘‘(B) Unless the chief law enforcement officer to

24 whom a statement is transmitted under paragraph
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1 (1)(A)(i)(IV) determines that a transaction would violate

2 Federal, State, or local law—

3 ‘‘(i) the officer shall, within 20 business days

4 after the date the transferee made the statement on

5 the basis of which the notice was provided, destroy

6 the statement, any record containing information de7 rived from the statement, and any record created as

8 a result of the notice required by paragraph

9 (1)(A)(i)(III);

10 ‘‘(ii) the information contained in the statement

11 shall not be conveyed to any person except a person

12 who has a need to know in order to carry out this

13 subsection; and

14 ‘‘(iii) the information contained in the state15 ment shall not be used for any purpose other than

16 to carry out this subsection.

17 ‘‘(C) If a chief law enforcement officer determines

18 that an individual is ineligible to receive explosive mate19 rials and the individual requests the officer to provide the

20 reason for such determination, the officer shall provide

21 such reasons to the individual in writing within 20 busi22 ness days after receipt of the request.

23 ‘‘(7) A chief law enforcement officer or other person

24 responsible for providing criminal history background in-
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1 formation pursuant to this subsection shall not be liable

2 in an action at law for damages—

3 ‘‘(A) for failure to prevent the sale or transfer

4 of explosive materials to a person whose receipt or

5 possession of the explosive materials is unlawful

6 under this section; or

7 ‘‘(B) for preventing such a sale or transfer to

8 a person who may lawfully receive or possess explo9 sive materials.

10 ‘‘(8) For purposes of this subsection:

11 ‘‘(A) The term ‘chief law enforcement officer’

12 means the chief of police, the sheriff, or an equiva13 lent officer or the designee of any such individual.

14 ‘‘(B) The term ‘explosive materials’ does not in15 clude black powder or smokeless powder in amounts

16 of less than 50 pounds.

17 ‘‘(9) The Secretary shall take necessary actions to en18 sure that the provisions of this subsection are published

19 and disseminated to licensees and the public.

20 ‘‘(m)(1) Beginning on the date that is 30 days after

21 the Attorney General notifies licensees under section

22 103(d) of the Brady Handgun Violence Prevention Act of

23 1994 that the national instant criminal background check

24 system is established, a licensee shall not transfer explo-
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1 sive materials to any other person who is not a licensee,

2 unless—

3 ‘‘(A) before the completion of the transfer, the

4 licensee contacts the national instant criminal back5 ground check system established under section 103

6 of that Act;

7 ‘‘(B)(i) the system provides the licensee with a

8 unique identification number; or

9 ‘‘(ii) 3 business days (meaning a day on which

10 State offices are open) have elapsed since the li11 censee contacted the system, and the system has not

12 notified the licensee that the receipt of explosive ma13 terials by such other person would violate this sec14 tion; and

15 ‘‘(C) the transferor has verified the identity of

16 such other person by examining a valid identification

17 document (as defined in section 1028(d)(1) of this

18 title) of such other person containing a photograph

19 of such other person.

20 ‘‘(2) If receipt of explosive materials would not violate

21 this section or State law, the system shall—

22 ‘‘(A) assign a unique identification number to

23 the transfer;

24 ‘‘(B) provide the licensee with the number; and
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1 ‘‘(C) destroy all records of the system with re2 spect to the call (other than the identifying number

3 and the date the number was assigned) and all

4 records of the system relating to the person or the

5 transfer.

6 ‘‘(3) Paragraph (1) shall not apply to explosive mate7 rials transfer between a licensee and another person if—

8 ‘‘(A)(i) such other person has presented to the

9 licensee a permit that—

10 ‘‘(I) allows such other person to possess or

11 acquire explosive materials; and

12 ‘‘(II) was issued not more than 5 years

13 earlier by the State in which the transfer is to

14 take place; and

15 ‘‘(ii) the law of the State provides that such a

16 permit is to be issued only if not prohibited by other

17 law and only after an authorized government official

18 has verified that the information available to such

19 official does not indicate that possession of explosive

20 materials by such other person would be in violation

21 of law;

22 ‘‘(B) the Secretary has approved the transfer

23 under section 5812 of the Internal Revenue Code of

24 1986; or
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1 ‘‘(C) on application of the transferor, the Sec2 retary has certified that compliance with paragraph

3 (1)(A) is impracticable because—

4 ‘‘(i) the ratio of the number of law enforce5 ment officers of the State in which the transfer

6 is to occur to the number of square miles of

7 land area of the State does not exceed 0.0025;

8 ‘‘(ii) the business premises of the licensee

9 at which the transfer is to occur are extremely

10 remote in relation to the chief law enforcement

11 officer (as defined in subsection (l)(8)); and

12 ‘‘(iii) there is an absence of telecommuni13 cations facilities in the geographical area in

14 which the business premises are located.

15 ‘‘(4) If the national instant criminal background

16 check system notifies the licensee that the information

17 available to the system does not demonstrate that the re18 ceipt of explosive materials by such other person would

19 violate this section or State law, and the licensee transfers

20 explosive materials to such other person, the licensee shall

21 include in the record of the transfer the unique identifica22 tion number provided by the system with respect to the

23 transfer.

24 ‘‘(5) If the licensee knowingly transfers explosive ma25 terials to such other person and knowingly fails to comply
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1 with paragraph (1) of this subsection with respect to the

2 transfer and, at the time such other person most recently

3 proposed the transfer, the national instant criminal back4 ground check system was operating and information was

5 available to the system demonstrating that receipt of ex6 plosive materials by such other person would violate this

7 section or State law, the Secretary may, after notice and

8 opportunity for a hearing, suspend for not more than 6

9 months or revoke any license issued to the licensee under

10 section 843, and may impose on the licensee a civil fine

11 of not more than $5,000.

12 ‘‘(6) Neither a local government nor an employee of

13 the Federal Government or of any State or local govern14 ment, responsible for providing information to the national

15 instant criminal background check system shall be liable

16 in an action at law for damages—

17 ‘‘(A) for failure to prevent the sale or transfer

18 of explosive materials to a person whose receipt or

19 possession of the firearm is unlawful under this sec20 tion; or

21 ‘‘(B) for preventing such a sale or transfer to

22 a person who may lawfully receive or possess explo23 sive materials.
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1 ‘‘(7) For purposes of this subsection, the term ‘explo2 sive materials’ does not include black powder or smokeless

3 powder in amounts of less than 50 pounds.’’.

4 (b) PENALTIES.—Section 844 of such title is amend5 ed—

6 (1) in subsection (b), by striking ‘‘any other

7 provision of section 842 of this chapter’’ and insert8 ing ‘‘subsection (j) or (k) of section 842’’; and

9 (2) by adding at the end the following:

10 ‘‘(k) Whoever knowingly violates subsection (l) or (m)

11 of section 842 shall be fined not more than $10,000, im12 prisoned not more than 10 years, or both. Section 3571

13 shall not apply in the imposition of any fine under this

14 subsection.’’.

15 SEC. 4. USE OF NATIONAL INSTANT CRIMINAL BACK16 GROUND CHECK SYSTEM.

17 The requirements of section 103 of the Brady Hand18 gun Violence Prevention Act (other than subsection (i)

19 thereof) shall apply to explosive materials (other than

20 black powder or smokeless powder in amounts of less than

21 50 pounds) in the same manner in which such section ap22 plies to firearms, except that, in the case of such explosive

23 materials—

24 (1) the system shall provide information on

25 whether receipt of such explosive materials by a pro-
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1 spective transferee would violate section 842 of title

2 18, United States Code, or State law; and

3 (2) as used in such section, the term ‘‘licensee’’

4 has the same meaning given such term by section

5 841(m) of title 18, United States Code.

6 SEC. 5. REMEDY FOR ERRONEOUS DENIAL OF EXPLOSIVE

7 MATERIALS.

8 (a) IN GENERAL.—Chapter 40 of title 18, United

9 States Code, is amended by inserting after section 845 the

10 following new section:

11 ‘‘§ 845A. Remedy for erroneous denial of explosive

12 materials

13 ‘‘Any person denied explosive materials pursuant to

14 subsection (l) or (m) of section 842—

15 ‘‘(1) due to the provision of erroneous informa16 tion relating to the person by any State or political

17 subdivision thereof, or by the national instant crimi18 nal background check system established under sec19 tion 3 of the Explosives Control Act of 1994; or

20 ‘‘(2) who was not prohibited from receipt of ex21 plosive materials pursuant to section 842,

22 may bring an action against the State or political subdivi23 sion responsible for providing the erroneous information,

24 or responsible for denying the transfer, or against the

25 United States, as the case may be, for an order directing
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1 that the erroneous information be corrected or that the

2 transfer be approved, as the case may be. In any action

3 under this section, the court, in its discretion, may allow

4 the prevailing party a reasonable attorney’s fee as part

5 of the costs.’’.

6 (b) TECHNICAL AMENDMENT.—The chapter analysis

7 for such chapter is amended by inserting after the item

8 relating to section 845 the following new item:

‘‘845A. Remedy for erroneous denial of explosive materials.’’.

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