S.Amdt. 4814

SA 4814. Ms. COLLINS (for herself, Ms. Heitkamp, Ms. Ayotte, Mr.
Heinrich, Mr. Flake, Mr. Kaine, Mr. Graham, Mr. King, Mr. Nelson, Mr.
Manchin, and Ms. Baldwin) submitted an amendment intended to be
proposed to amendment SA 4685 proposed by Mr. Shelby (for himself and
Ms. Mikulski) to the bill H.R. 2578, making appropriations for the
Departments of Commerce and Justice, Science, and Related Agencies for
the fiscal year ending September 30, 2016, and for other purposes;
which was ordered to lie on the table; as follows:

At the appropriate place, insert the following:

SEC. ___. DISCRETIONARY AUTHORITY TO DENY TRANSFERS OF
FIREARMS OR EXPLOSIVES TO TERRORISTS.

(a) Authority.--
(1) In general.--On and after the date of enactment of this
Act, in accordance with the procedures under this section,
and without regard to section 842, 843, section 922(g) or
(n), or section 923 of title 18, United States Code, the
Attorney General may deny the transfer of a firearm, not
later than 3 business days after a licensee under chapter 44
of title 18, United States Code, contacts the national
instant criminal background check system established under
section 103 of Public Law 103-159 (18 U.S.C. 922 note), deny
the transfer of an explosive, or deny the issuance of a
Federal firearms or explosives license or permit, if either
of the following are met:
(A) No fly list.--The Attorney General determines that
transferee or applicant--
(i) based on the totality of the circumstances, represents
a threat to public safety based on a reasonable suspicion
that the transferee or applicant is engaged, or has been
engaged, in conduct constituting, in preparation of, in aid
of, or related to terrorism, or providing material support or
resources therefor; and
(ii) based on credible information, poses--

(I) a threat of committing an act of international
terrorism or domestic terrorism with respect to an aircraft
(including a threat of piracy, or a threat to airline,
passenger, or civil aviation security);
(II) a threat of committing an act of domestic terrorism
with respect to the homeland;
(III) a threat of committing an act of international
terrorism against any United States Government facility
abroad and associated or supporting personnel, including
United States embassies, consulates and missions, military
installations, United States ships, United States aircraft,
or other auxiliary craft owned or leased by the United States
Government; or
(IV) a threat of engaging in or conducting a violent act of
terrorism and who is operationally capable of doing so.

(B) Selectee list.--The Attorney General determines that
transferee or applicant meets the standard for inclusion on
the Selectee List, which is the subset list of the Terrorist
Screening Database, maintained by the Terrorist Screening
Center of the Federal Bureau of Investigation, of individuals
who are selected for enhanced security screening when
attempting to board a United States commercial aircraft or
fly into, out of, or over United States airspace, based on
the standard to be on such Selectee List on June 16, 2016.
(2) NICS.--Solely for purposes of sections 922(t) (1), (2),
(5), and (6) of title 18, United States Code, and section
103(g) of Public Law 103-159 (18 U.S.C. 922 note), a denial
by the Attorney General under paragraph (1) shall be treated
as equivalent to a determination that receipt of a firearm
would violate subsection (g) or (n) of section 922 of title
18, United States Code. During the 3-business-day period
beginning when a licensee under chapter 44 of title 18,
United States Code, contacts the national instant criminal
background check system established under section 103 of
Public Law 103-159 (18 U.S.C. 922 note), and notwithstanding
section 922(t)(2) of title 18, United States Code, the
Attorney General may delay assigning a unique identification
number to a transfer of a firearm in order to determine
whether the transferee or applicant meets the requirements
under paragraph (1).
(b) Notification of Prospective Firearm Transfers to Known
or Suspected Terrorist.--The Attorney General and Federal,
State, and local law enforcement shall be immediately
notified, as appropriate, of any request to transfer a
firearm or explosive to a person who is, or with in the
previous 5 years was, identified in the Terrorist Screening
Database maintained by the Terrorist Screening Center of the
Federal Bureau of Investigation.
(c) Petition for Review.--
(1) In general.--An individual who is a citizen or lawful
permanent resident of the United States who seeks to
challenge a denial by the Attorney General under subsection
(a)(1) may file a petition for review and any claims related
to that petition in the United States Court of Appeals for
the District of Columbia Circuit or in the court of appeals
of the United States for the judicial circuit in which the
individual resides.
(2) Deadlines for filing.--
(A) In general.--Except as provided in subparagraph (B), a
petition for review under paragraph (1), and any claims
related to that petition, shall be filed not later than 60
days after the petitioner receives actual notice of the
denial by the Attorney General.
(B) Exception.--The court of appeals in which a petition
for review is to be filed under paragraph (1) may allow the
petition to be filed after the deadline specified in
subparagraph (A) only if there are reasonable grounds for not
filing by that deadline.
(3) Authority of courts of appeals.--The court of appeals
in which a petition for review is filed under paragraph (1)--
(A) shall have--
(i) jurisdiction to decide all relevant questions of law
and fact; and
(ii) exclusive jurisdiction to affirm, amend, modify, or
set aside any part of the denial of the Attorney General that
is the subject of the petition for review; and
(B) may order the Attorney General to conduct further
proceedings.
(4) Exclusive jurisdiction.--
(A) In general.--No district court of the United States
shall have jurisdiction to consider any claim related to or
arising out of facts and circumstances that could have been
included in a petition filed under paragraph (1), including
any constitutional claim.
(B) Lawfulness and constitutionality.--No district court of
the United States or court of appeals of the United States
shall have jurisdiction to consider the lawfulness or
constitutionality of this section except pursuant to a
petition for review under section.
(C) Noncitizens.--No district court of the United States or
court of appeals of the United States shall have jurisdiction
to hear any claim by an individual who is not a citizen or
lawful permanent resident of the United States related to or
arising out a denial by the Attorney General under subsection
(a)(1).
(d) Requirement for an Administrative Record and Procedures
for Judicial Review.--Notwithstanding any other provision of
law, the following procedures shall apply with respect to a
petition for review filed in a court of appeals under
subsection (c):
(1) The United States shall file with the court an
administrative record, which shall consist of--
(A) the information the Attorney General relied upon in
denying the transfer or application;
(B) any information the petitioner has submitted pursuant
to any administrative process;
(C) any information determined relevant by the United
States; and
(D) any information that is exculpatory.
(2)(A) The petitioner may file with the court any
information determined relevant by the petitioner.
(B) With leave of the court, the United States may
supplement the administrative record with additional
information.
(3) All information in the administrative record that is
not classified and is not otherwise privileged or subject to
statutory protections shall be provided to the petitioner.
(4) No discovery shall be permitted, unless the court shall
determine extraordinary circumstances requires discovery in
the interests of justice.
(5) Sensitive security information contained in the
administrative record may only be provided pursuant to a
protective order.
(6)(A) The administrative record may include classified
information, which the United States shall submit to the
court in camera and ex parte.
(B) The United States shall notify the petitioner if the
administrative record filed under paragraph (1) contains
classified information.
(C) The court may enter an order, after notice and a
hearing, allowing disclosure to the petitioner, counsel for
the petitioner, or both, of--
(i) an unclassified summary of some or all classified
information in the administrative record;

[[Page S4420]]

(ii) a statement admitting relevant facts that some or all
classified information in the administrative record would
tend to prove;
(iii) some or all classified information, if counsel for
the petitioner possess the appropriate security clearance; or
(iv) any combination thereof.
(D)(i) If the court enters an order under subparagraph (C)
providing for the disclosure of classified information and
the United States files with the court an affidavit of the
Attorney General objecting to the disclosure, the court shall
order that the classified information not be disclosed.
(ii) If classified information is not disclosed under
clause (i), the court shall enter such an order as the
interests of justice require, which may include an order
quashing the denial by the Attorney General under subsection
(a)(1).
(iii) An order under subparagraph (C) or clause (ii) of
this subparagraph shall be subject to review pursuant to
section 1254 of title 28, United States Code.
(iv) An order under clause (ii) shall be administratively
stayed for 7 days.
(v) The functions and duties of the Attorney General under
this subparagraph--
(I) may be exercised by the Deputy Attorney General, the
Associate Attorney General, or by an Assistant Attorney
General designated by the Attorney General for such purpose;
and
(II) may not be delegated to any other official.
(E) Any information disclosed under subparagraph (C) shall
be subject to an appropriate protective order.
(7) Any classified information, sensitive security
information, law enforcement sensitive information, or
information that is otherwise privileged or subject to
statutory protections, that is part of the administrative
record, or cited by the court or the parties, shall be
treated by the court and the parties consistent with the
provisions of this subsection, and shall be sealed and
preserved in the records of the court to be made available in
the event of further proceedings. In no event shall such
information be released as part of the public record.
(8) The court shall award reasonable attorney fees to a
petitioner who is a prevailing party in an action under this
section.
(9) After the expiration of the time to seek further
review, or the conclusion of further proceedings, the court
shall return the administrative record, including any and all
copies, to the United States. All privileged information or
other information in the possession of counsel for the
petitioner that was provided by the United States under a
protective order shall be returned to the United States, or
the counsel for the petitioner shall certify its destruction,
including any and all copies.
(e) Scope of Review.--The court of appeals shall quash any
denial by the Attorney General under subsection (a)(1),
unless the United States demonstrates, on a de novo review of
fact and law--
(1) that--
(A) based on the totality of the circumstances, the
transferee or applicant represents a threat to public safety
based on a reasonable suspicion that the transferee or
applicant is engaged, or has been engaged, in conduct
constituting, in preparation of, in aid of, or related to
terrorism, or providing material support or resources
therefor; and
(B) based on credible information, the transferee or
applicant poses--
(i) a threat of committing an act of international
terrorism or domestic terrorism with respect to an aircraft
(including a threat of piracy, or a threat to airline,
passenger, or civil aviation security);
(ii) a threat of committing an act of domestic terrorism
with respect to the homeland;
(iii) a threat of committing an act of international
terrorism against any United States Government facility
abroad and associated or supporting personnel, including
United States embassies, consulates and missions, military
installations, United States ships, United States aircraft,
or other auxiliary craft owned or leased by the United States
Government; or
(iv) a threat of engaging in or conducting a violent act of
terrorism and who is operationally capable of doing so; or
(2) that the standard has been met for including the
transferee or applicant on the Selectee List, which is the
subset list of the Terrorist Screening Database, maintained
by the Terrorist Screening Center of the Federal Bureau of
Investigation, of individuals who are selected for enhanced
security screening when attempting to board a United States
commercial aircraft or fly into, out of, or over United
States airspace, based on the standard to be on such Selectee
List on June 16, 2016.
(f) Effect of Quashing.--If the court of appeals quashes a
denial by the Attorney General under subsection (e),
notwithstanding any other provision of law, the Attorney
General shall--
(1) for a denial of the transfer of a firearm, cause a
unique identifier to issue pursuant to section 922(t)(2) of
title 18, United States Code, not later than 3 days after the
issuance of the order under subsection (e); and
(2) for a denial of a license or permit, expeditiously
issue a license or permit under chapter 40 or 44 of title 18,
United States Code, as applicable.
(g) Supreme Court Review.--A decision by a court of appeals
under this section may be reviewed by the Supreme Court under
section 1254 of title 28, United States Code.
(h) Exclusive Remedy.--The judicial review under a petition
for review filed under subsection (c) shall be the sole and
exclusive remedy for a claim by an individual who challenges
a denial under subsection (a)(1).
(i) Expedited Consideration.--
(1) Courts.--Not later than 14 days after the date on which
a petition is filed challenging a denial under subsection
(a)(1), a court of appeals shall determine whether to quash
the denial, unless the petitioner consents to a longer
period.
(2) Of quashing.--If the court of appeals quashes a denial
by the Attorney General under subsection (e), a petitioner
may submit the order quashing the denial to the Department of
Homeland Security for expedited review, as appropriate.
(j) Transparency.--Not later than 60 days after the date of
the enactment of this Act, and quarterly thereafter--
(1) the Attorney General shall submit to the Committee on
the Judiciary and the Select Committee on Intelligence of the
Senate and the Committee on the Judiciary and the Permanent
Select Committee on Intelligence of the House of
Representatives a report providing--
(A) the number of persons denied a firearm transfer or a
license or permit under subsection (a)(1) during the
reporting period;
(B) the number of petitions for review filed under
subsection (d); and
(C) the number of instances in which a court of appeals
quashed a denial by the Attorney General under subsection
(e); and
(2) the Secretary of Homeland Security shall submit to the
Committee on Homeland Security and Governmental Affairs and
the Select Committee on Intelligence of the Senate and the
Homeland Security Committee the Permanent Select Committee on
Intelligence of the House of Representatives a report
providing--
(A) the number individuals--
(i) with respect to whom a court of appeals quashed a
denial by the Attorney General under subsection (e); and
(ii) who submitted the order quashing the denial to the
Department of Homeland Security under subsection (i)(2); and
(B) a description of the actions taken and final
determinations made by the Department of Homeland Security
with regard to submissions described in subparagraph (A)(ii)
respecting the status of individuals on the No Fly List or
Selectee List, including the length of time taken to reach a
final determination.
(k) Definitions.--In this section:
(1) Classified information.--The term ``classified
information'' has the meaning given that term in section 1(a)
of the Classified Information Procedures Act (18 U.S.C.
App.).
(2) Domestic terrorism.--The term ``domestic terrorism''
has the meaning given that term in section 2331(5) of title
18, United States Code.
(3) International terrorism.--The term ``international
terrorism'' has the meaning given that term in section
2331(1) of title 18, United States Code.
(4) Military installation.--The term ``military
installation'' has the meaning given that term in section
2801(c)(4) of title 10, United States Code.
(5) National security.--The term ``national security'' has
the meaning given that term in section 219 of the Immigration
and Nationality Act (8 U.S.C. 1189).
(6) Sensitive security information.--The term ``sensitive
security information'' has the meaning given that term by
sections 114(r) and 40119 of title 49, United States Code,
and the regulations and orders issued pursuant to those
sections.
(l) Rule of Construction.--Nothing in this section shall be
construed to authorize the Attorney General to modify the
length of period before a firearm may be transferred under
section 922(t) of title 18, United States Code.
______