S.Amdt. 737

1. Adds SEC. ____. EXPLOSIVE MATERIALS BACKGROUND CHECK ACT wherever appropriate

   Adds a section

   Inserted: SEC. ____. EXPLOSIVE MATERIALS BACKGROUND CHECK ACT.

   Inserted: (a) Short Title.--This section may be cited as the "Explosive Materials Background Check Act".

   Inserted: (b) Amendments to Explosive Materials Provisions.--

   Inserted: (1) Chapter 40.--Chapter 40 of title 18, United States Code, is amended--

   Inserted: (A) in section 841--

   Inserted: (i) in subsection (d), by inserting "smokeless powder and black powder substitutes," after "black powder,"; and

   Inserted: (ii) in subsection (h), by striking "the business of";

   Inserted: (B) in section 842--

   Inserted: (i) in subsection (d)--

   Inserted: (I) in paragraph (9), by striking the period and inserting a semicolon; and

   Inserted: (II) inserting at the end the following:

   Inserted: "(10) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that--

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   Inserted: "(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and

   Inserted: "(B) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

   Inserted: "(C) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

   Inserted: "(11) has been convicted in any court of a misdemeanor crime of domestic violence; or

   Inserted: "(12) has received actual notice of the Attorney General's determination made pursuant to subsection (d)(1)(B) or (j) of section 843 of this title."; and

   Inserted: (ii) in subsection (i)--

   Inserted: (I) in paragraph (7), by inserting a semicolon after "person";

   Inserted: (II) inserting at the end the following:

   Inserted: "(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that--

   Inserted: "(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and

   Inserted: "(B) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

   Inserted: "(C) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

   Inserted: "(9) has been convicted in any court of a misdemeanor crime of domestic violence; or

   Inserted: "(10) has received actual notice of the Attorney General's determination made pursuant to subsection (d)(1)(B) or (j) of section 843 of this title.";

   Inserted: (C) in section 843--

   Inserted: (i) in subsection (b)--

   Inserted: (I) by striking "Upon" and inserting "Except as provided in subsection (j), upon";

   Inserted: (II) in paragraph (6), by striking "and" after the semicolon;

   Inserted: (III) in paragraph (7), by striking the period and inserting "; and"; and

   Inserted: (IV) by inserting at the end the following:

   Inserted: "(8) in the case of a limited permit holder, the applicant certifies the permit will only be used to purchase black powder, black powder substitute, and smokeless powder in which case the limitation in paragraph (7) shall not apply.";

   Inserted: (ii) in subsection (d)--

   Inserted: (I) by inserting "(1)" after "(d)";

   Inserted: (II) by striking "if in the opinion" and inserting the following: "if--

   Inserted: (iii) in the opinion; and"; and

   Inserted: (I) by striking "The Secretary's action" and inserting the following: "; or

   Inserted: "(II) the Attorney General determines that the licensee or holder (or any responsible person or employee possessor thereof) is known (or appropriately suspected) to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources for terrorism, and that the Attorney General has a reasonable belief that the person may use explosives in connection with terrorism.

   Inserted: "(2) The Attorney General's action"; and

   Inserted: (iv) in subsection (e)--

   Inserted: (I) in paragraph (1), by inserting after the first sentence the following: "However, if the denial or revocation is based upon an Attorney General determination under subsection (j) or (d)(1)(B), any information which the Attorney General relied on for this determination may be withheld from the petitioner if the Attorney General determines that disclosure of the information would likely compromise national security."; and

   Inserted: (II) in paragraph (2), by adding at the end the following: "In responding to any petition for review of a denial or revocation based upon an Attorney General determination under subsection (j) or (d)(1)(B), the United States may submit, and the court may rely upon, summaries or redacted versions of documents containing information the disclosure of which the Attorney General has determined would likely compromise national security.";

   Inserted: (v) in subsection (h)(2)--

   Inserted: (I) in subparagraph (A), by inserting "or in subsection (j) of this section (on grounds of terrorism)" after "section 842(i)"; and

   Inserted: (II) in subparagraph (B)--

   Inserted: (aa) in the matter preceding clause (i), by inserting "or in subsection (j) of this section," after "section 842(i),"; and

   Inserted: (bb) in clause (ii), by inserting ", except that any information that the Attorney General relied on for a determination pursuant to subsection (j) may be withheld if the Attorney General concludes that disclosure of the information would likely compromise national security" after "determination" ; and

   Inserted: (vi) by inserting at the end the following:

   Inserted: "(j) Attorney General Discretionary Denial of Federal Explosives Licenses and Permits.--The Attorney General may deny the issuance of a permit or license to an applicant if the Attorney General determines that the applicant or a responsible person or employee possessor thereof is known (or appropriately suspected) to be or have been engaged in conduct constituting, in preparation of, in aid of, or related to terrorism, or providing material support or resources for terrorism, and the Attorney General has a reasonable belief that the person may use explosives in connection with terrorism."; and

   Inserted: (D) in section 845(a)--

   Inserted: (i) in paragraph (4), by striking "and components thereof"; and

   Inserted: (ii) in paragraph (5), by striking "black powder in quantities not to exceed fifty pounds,".

   Inserted: (2) Conforming amendment to immigration and nationality act.--Section 101(a)(43)(E)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)(E)(ii)) is amended by striking "or (5)" and inserting "(5), or (10)".

   Inserted: (3) Guidelines.--

   Inserted: (A) In general.--The Attorney General shall issue guidelines describing the circumstances under which the Attorney General will exercise the authority and make determinations under subsections (d)(1)(B) and (j) of section 843 and sections 922A and 922B of title 18, United States Code, as amended by this Act.

   Inserted: (B) Contents.--The guidelines issued under subparagraph (A) shall--

   Inserted: (i) provide accountability and a basis for monitoring to ensure that the intended goals for, and expected results of, the grant of authority under subsections (d)(1)(B) and (j) of section 843 and sections 922A and 922B of title 18, United States Code, as amended by this Act, are being achieved; and

   Inserted: (ii) ensure that terrorist watch list records are used in a manner that safeguards privacy and civil liberties protections, in accordance with requirements outlines in Homeland Security Presidential Directive 11 (dated August 27, 2004).

   Inserted: (c) Standard for Exercising Attorney General Discretion Regarding Transferring Firearms or Issuing Firearms Permits to Dangerous Terrorists.--Chapter 44 of title 18, United States Code, is amended--

   Inserted: (1) by inserting after section 922 the following:

   Inserted: "Sec. 922A. Attorney General's discretion to deny transfer of a firearm.

   Inserted: "The Attorney General may deny the transfer of a firearm under section 922(t)(1)(B)(ii) of this title if the Attorney General--

   Inserted: "(1) determines that the transferee is known (or appropriately suspected) to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources for terrorism; and

   Inserted: "(2) has a reasonable belief that the prospective transferee may use a firearm in connection with terrorism.

   Inserted: "Sec. 922B. Attorney General's discretion regarding applicants for firearm permits which would qualify for the exemption provided under section 922(t)(3).

   Inserted: "The Attorney General may determine that--

   Inserted: "(1) an applicant for a firearm permit which would qualify for an exemption under section 922(t) is known (or appropriately suspected) to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources for terrorism; and

   Inserted: "(2) the Attorney General has a reasonable belief that the applicant may use a firearm in connection with terrorism.";

   Inserted: (2) in section 921(a), by adding at the end the following:

   Inserted: "(36) The term 'terrorism' includes international terrorism and domestic terrorism, as defined in section 2331 of this title.

   Inserted: "(37) The term 'material support or resources' has the meaning given the term in section 2339A of this title.

   Inserted: "(38) The term 'responsible person' means an individual who has the power, directly or indirectly, to direct or cause the direction of the management and policies of the applicant or licensee pertaining to firearms."; and

   Inserted: (3) in the table of sections, by inserting after the item relating to section 922 the following:

   Inserted: "922A. Attorney General's discretion to deny transfer of a firearm.

   Inserted: "922B. Attorney General's discretion regarding applicants for firearm permits which would qualify for the exemption provided under section 922(t)(3).".

   Inserted: (d) Effect of Attorney General Discretionary Denial Through the National Instant Criminal Background Check System (NICS) on Firearms Permits.--Section 922(t) of title 18, United States Code, is amended--

   Inserted: (1) in paragraph (1)(B)(ii), by inserting "or State law, or that the Attorney General has determined to deny the transfer of a firearm pursuant to section 922A of this title" before the semicolon;

   Inserted: (2) in paragraph (2), in the matter preceding subparagraph (A), by inserting ", or if the Attorney General has not determined to deny the transfer of a firearm pursuant to section 922A of this title" after "or State law";

   Inserted: (3) in paragraph (3)--

   Inserted: (A) in subparagraph (A)--

   Inserted: (i) in clause (i)--

   Inserted: (I) in subclause (I), by striking "and" at the end; and

   Inserted: (II) by adding at the end the following:

   Inserted: "(III) was issued after a check of the system established pursuant to paragraph (1);";

   Inserted: (ii) in clause (ii), by inserting "and" after the semicolon; and

   Inserted: (iii) by adding at the end the following:

   Inserted: "(iii) the State issuing the permit agrees to deny the permit application if such other person is the subject of a determination by the Attorney General pursuant to section 922B of this title;";

   Inserted: (4) in paragraph (4), by inserting ", or if the Attorney General has not determined to deny the transfer of a firearm pursuant to section 922A of this title" after "or State law"; and

   Inserted: (5) in paragraph (5), by inserting ", or if the Attorney General has determined to deny the transfer of a firearm pursuant to section 922A of this title" after "or State law".

   Inserted: (e) Unlawful Sale or Disposition of Firearm Based Upon Attorney General Discretionary Denial.--Section 922(d) of title 18, United States Code, is amended--

   Inserted: (1) in paragraph (8), by striking "or" at the end;

   Inserted: (2) in paragraph (9), by striking the period at the end and inserting "; or"; and

   Inserted: (3) by adding at the end the following:

   Inserted: "(10) has been the subject of a determination by the Attorney General under section 922A, 922B, 923(d)(3), or 923(e) of this title.".

   Inserted: (f) Attorney General Discretionary Denial as Prohibitor.--Section 922(g) of title 18, United States Code, is amended--

   Inserted: (1) in paragraph (8), by striking "or" at the end;

   Inserted: (2) in paragraph (9), by striking the comma at the end and inserting "; or"; and

   Inserted: (3) by inserting after paragraph (9) the following:

   Inserted: "(10) who has received actual notice of the Attorney General's determination made under section 922A, 922B, 923(d)(3) or 923(e) of this title,".

   Inserted: (g) Attorney General Discretionary Denial of Federal Firearms Licenses.--Section 923(d) of title 18, United States Code, is amended--

   Inserted: (1) in paragraph (1), in the matter preceding subparagraph (A), by striking "Any" and inserting "Except as provided in paragraph (3), any"; and

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

   Inserted: "(3) The Attorney General may deny a license application if the Attorney General determines that the applicant (including any responsible person) is known (or appropriately suspected) to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources for terrorism, and the Attorney General has a reasonable belief that the applicant may use a firearm in connection with terrorism.".

   Inserted: (h) Discretionary Revocation of Federal Firearms Licenses.--Section 923(e) of title 18, United States Code, is amended--

   Inserted: (1) by inserting "(1)" after "(e)";

   Inserted: (2) by striking "revoke any license" and inserting the following: "revoke--

   Inserted: "(A) any license";

   Inserted: (3) by striking ". The Attorney General may, after notice and opportunity for hearing, revoke the license" and inserting the following: ";

   Inserted: "(B) the license"; and

   Inserted: (4) by striking ". The Secretary's action" and inserting the following: "; or

   Inserted: "(C) any license issued under this section if the Attorney General determines that the holder of such license (including any responsible person) is known (or appropriately suspected) to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism or providing material support or resources for terrorism, and the Attorney General has a reasonable belief that the applicant may use a firearm in connection with terrorism.

   Inserted: "(2) The Attorney General's action".

   Inserted: (i) Attorney General's Ability To Withhold Information in Firearms License Denial and Revocation Suit.--

   Inserted: (1) In general.--Section 923(f)(1) of title 18, United States Code, is amended by inserting after the first sentence the following: "However, if the denial or revocation is pursuant to subsection (d)(3) or (e)(1)(C), any information upon which the Attorney General relied for this determination may be withheld from the petitioner, if the Attorney General determines that disclosure of the information would likely compromise national security.".

   Inserted: (2) Summaries.--Section 923(f)(3) of title 18, United States Code, is amended by inserting after the third sentence the following: "With respect to any information withheld from the aggrieved party under paragraph (1), the United States may submit, and the court may rely upon, summaries or redacted versions of documents containing information the disclosure of which the Attorney General has determined would likely compromise national security.".

   Inserted: (j) Attorney General's Ability To Withhold Information in Relief From Disabilities Lawsuits.--Section 925(c) of title 18, United States Code, is amended by inserting after the third sentence the following: "If the person is subject to a disability under section 922(g)(10) of this title, any information which the Attorney General relied on for this determination may be withheld from the applicant if the Attorney General determines that disclosure of the information would likely compromise national security. In responding to the petition, the United States may submit, and the court may rely upon, summaries or redacted versions of documents containing information the disclosure of which the Attorney General has determined would likely compromise national security.".

   Inserted: (k) Penalties.--Section 924(k) of title 18, United States Code, is amended--

   Inserted: (1) in paragraph (2), by striking "or" at the end;

   Inserted: (2) in paragraph (3), by striking the comma at the end and inserting "; or"; and

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

   Inserted: "(4) constitutes an act of terrorism, or providing material support or resources for terrorism,".

   Inserted: (l) Remedy for Erroneous Denial of Firearm or Firearm Permit Exemption.--

   Inserted: (1) In general.--Section 925A of title 18, United States Code, is amended--

   Inserted: (A) in the section heading, by striking "Remedy for erroneous denial of firearm" and inserting "Remedies";

   Inserted: (B) by striking "Any person denied a firearm pursuant to subsection (s) or (t) of section 922" and inserting the following:

   Inserted: "(a) Except as provided in subsection (b), any person denied a firearm pursuant to subsection (t) of section 922 or a firearm permit pursuant to a determination made under section 922B"; and

   Inserted: (C) by adding at the end the following:

   Inserted: "(b) In any case in which the Attorney General has denied the transfer of a firearm to a prospective transferee pursuant to section 922A of this title or has made a determination regarding a firearm permit applicant pursuant to section 922B of this title, an action challenging the determination may be brought against the United States. The petition shall be filed not later than 60 days after the petitioner has received actual notice of the Attorney General's determination under section 922A or 922B of this title. The court shall sustain the Attorney General's determination upon a showing by the United States by a preponderance of evidence that the Attorney General's determination satisfied the requirements of section 922A or 922B, as the case may be. To make this showing, the United States may submit, and the court may rely upon, summaries or redacted versions of documents containing information the disclosure of which the Attorney General has determined would likely compromise national security. Upon request of the petitioner or the court's own motion, the court may review the full, undisclosed documents ex parte and in camera. The court shall determine whether the summaries or redacted versions, as the case may be, are fair and accurate representations of the underlying documents. The court shall not consider the full, undisclosed documents in deciding whether the Attorney General's determination satisfies the requirements of section 922A or 922B.".

   Inserted: (2) Technical and conforming amendment.--The table of sections for chapter 44 of title 18, United States Code, is amended by striking the item relating to section 925A and inserting the following:

   Inserted: "925A. Remedies.".

   Inserted: (m) Provision of Grounds Underlying Ineligibility Determination by the National Instant Criminal Background Check System.--Section 103 of the Brady Handgun Violence Prevention Act (18 U.S.C. 922 note) is amended--

   Inserted: (1) in subsection (f)--

   Inserted: (A) by inserting "or the Attorney General has made a determination regarding an applicant for a firearm permit pursuant to section 922B of title 18, United States Code," after "is ineligible to receive a firearm"; and

   Inserted: (B) by inserting "except any information for which the Attorney General has determined that disclosure would likely compromise national security," after "reasons to the individual,"; and

   Inserted: (2) in subsection (g)--

   Inserted: (A) the first sentence--

   Inserted: (i) by inserting "or if the Attorney General has made a determination pursuant to section 922A or 922B of title 18, United States Code," after "or State law,"; and

   Inserted: (ii) by inserting ", except any information for which the Attorney General has determined that disclosure would likely compromise national security" before the period at the end; and

   Inserted: (B) by adding at the end the following: "Any petition for review of information withheld by the Attorney General under this subsection shall be made in accordance with section 925A of title 18, United States Code.".

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   Original wording

   At the appropriate place, insert the following:

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As printed