To authorize the Attorney General to delay or deny the transfer of firearms and explosives and issuance of Federal firearms and explosives licenses and permits to known or suspected terrorists.

SA 4859. Mr. McCONNELL (for Mr. Johnson (for himself, Mr. Lankford,
Mr. Cornyn, and Mr. Rubio)) proposed an amendment to amendment SA 4858
submitted by Ms. Collins (for herself, Ms. Heitkamp, Ms. Ayotte, Mr.
Heinrich, Mr. Flake, Mr. Kaine, Mr. Graham, Mr. King, Mr. Nelson, Mr.
Manchin, Ms. Baldwin, Mr. Kirk, and Mr. Warner) 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; as follows:

In lieu of the matter to be inserted, insert the following:

SEC. ___. DISCRETIONARY AUTHORITY TO DELAY OR DENY TRANSFERS
OF FIREARMS AND EXPLOSIVES AND ISSUANCE OF
FIREARMS AND EXPLOSIVES LICENSES AND PERMITS 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 delay or 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), delay
or deny the transfer of an explosive, or delay or deny the
issuance of a Federal firearms or explosives license or
permit, if--
(A) the transferee or applicant is appropriately included
on the No Fly or Selectee List; and
(B) the Attorney General determines--
(i) there is a reasonable basis to believe, based on
specific and articulable information and credible evidence,
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; or
(ii) the transferee or applicant poses a credible threat
of--

(I) 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) committing an act of domestic terrorism with respect
to the homeland;
(III) 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) engaging in or conducting a violent act of terrorism
and is operationally capable of doing so.

(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).
(3) Delay or denial.--A delay or denial under paragraph (1)
shall occur according to the process set forth in subsection
(c).
(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, if the Director of the
Federal Bureau of Investigation annually reviews and
certifies the identities of the known or suspected terrorists
and the appropriateness of such designation.
(c) Process for Delay or Denying a Transfer of a Firearm or
Explosive or Issuance of License or Permit.--
(1) Emergency petition.--
(A) In general.--Under the authority under subsection (a),
except as provided in paragraph (9) the Attorney General may
delay the transfer of a firearm or explosive, or the issuance
of a license or permit, and file an emergency petition in a
court of competent jurisdiction within 3 business days, to
deny such transfer or issuance. The transfer of such firearm
or explosive shall be delayed during the pendency of a
petition under this subsection.
(B) Expedited review.--A petition under subparagraph (A)
and subsequent hearing

[[Page S4558]]

shall receive the highest possible priority on the docket of
the court and be subject to the Classified Information
Procedures Act (18 U.S.C. App.). A hearing shall occur not
later than 7 business days after the petition is filed
(including any extension granted under paragraph (5)), and a
decision by the court shall be issued not later than 3
business days after the hearing.
(2) Hearing.--
(A) In general.--The prospective transferee or applicant
shall receive notice of the hearing and an opportunity to
participate with the assistance of counsel.
(B) Standard.--The court shall authorize the Attorney
General to deny a transfer or issuance if the court finds--
(i) that the prospective transferee or applicant is
appropriately included on the No Fly or Selectee List; and
(ii) that--

(I) there is a reasonable basis to believe, based on
specific and articulable information and credible evidence,
that the prospective 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 for terrorism; or
(II) the prospective transferee or applicant poses a
credible threat of--

(aa) 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);
(bb) committing an act of domestic terrorism with respect
to the homeland;
(cc) 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
(dd) engaging in or conducting a violent act of terrorism
and is operationally capable of doing so.
(3) Denial of petition.--If a petition under paragraph
(1)(A) is denied, the Attorney General shall--
(A) for a transfer of a firearm or explosive, 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
denial; and
(B) for the issuance of a license or permit, expeditiously
issue the license or permit under chapter 40 or 44 of title
18, United States Code, as applicable.
(4) Court costs and attorney's fees.--If a petition under
paragraph (1)(A) is denied, the government shall be
responsible for all reasonable costs and attorney's fees.
(5) Request for extension.--
(A) In general.--The Attorney General may request from the
court an extension for filing a petition under paragraph
(1)(A) of not more than 10 additional business days.
(B) Grant of extension.--A court shall grant an extension
if the Attorney General makes a preliminary showing to the
court--
(i) that the prospective transferee or applicant is
appropriately included on the No Fly or Selectee List; and
(ii) that--

(I) there is reasonable articulable suspicion and credible
evidence that the prospective 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 for terrorism; or
(II) the prospective transferee or applicant poses a
credible threat of--

(aa) 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);
(bb) committing an act of domestic terrorism with respect
to the homeland;
(cc) 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
(dd) engaging in or conducting a violent act of terrorism
and is operationally capable of doing so.
(C) Ex parte proceeding.--A preliminary showing under
subparagraph (B) may occur in an ex parte proceeding.
(6) Opportunity to appeal.--If the court rules in favor of
a denial of a transfer or issuance, the prospective
transferee or applicant shall be provided the opportunity to
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.
(7) Detention or arrest.--The Attorney General may detain
or arrest a prospective transferee or applicant for whom a
petition under paragraph (1)(A) has been filed if probable
cause exists to believe that the prospective 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 for
terrorism.
(8) Authority of courts of appeals.--The court of appeals
in which a petition for review is filed under paragraph
(1)(A)--
(A) shall have--
(i) jurisdiction to decide all relevant questions of law
and fact; and
(ii) exclusive jurisdiction to authorize, modify, set
aside, or deny any part of a denial requested by the Attorney
General in a petition under paragraph (1)(A); and
(B) may order the Attorney General to conduct further
proceedings.
(9) Noncitizens.--For an individual who is not a citizen or
lawful permanent resident of the United States--
(A) the Attorney General may delay or deny a transfer or
issuance under subsection (a)(1) without regard to the
procedures under paragraphs (1) through (9); and
(B) no district court of the United States or court of
appeals of the United States shall have jurisdiction to hear
any claim by such an individual related to or arising out
such a denial by the Attorney General.
(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 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
delaying the transfer or application;
(B) any information the prospective transferee or applicant
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 prospective transferee or applicant may file
with the court any information determined relevant by the
prospective transferee or applicant.
(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 prospective
transferee or applicant.
(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 prospective
transferee or applicant 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 prospective transferee or
applicant, counsel for the prospective transferee or
applicant, or both, of--
(i) an unclassified summary of some or all classified
information in the administrative record;
(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 prospective transferee or applicant 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
denying the petition by the Attorney General under subsection
(c)(1)(A).
(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 and
costs to a prospective transferee or applicant who is a
prevailing party in an action under this section.

[[Page S4559]]

(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
prospective transferee or applicant that was provided by the
United States under a protective order shall be returned to
the United States, or the counsel for the prospective
transferee or applicant shall certify its destruction,
including any and all copies.
(e) 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.
(f) Exclusive Remedy.--The judicial review of a petition
filed by the Attorney General under subsection (c) shall be
the sole and exclusive remedy for a claim by an individual
with respect to the denial requested under the petition.
(g) Expedited Consideration.--
(1) Courts.--Not later than 14 days after the date on which
a petition is filed under subsection (c)(1)(A) seeking a
denial, a court of appeals shall determine whether to
authorize the denial, unless the prospective transferee or
applicant consents to a longer period.
(2) Of denial.--If the court of appeals denies a petition
by the Attorney General under subsection (c)(1)(A), a
prospective transferee or applicant may submit the order
denying the petition to the Department of Homeland Security
for expedited review, as appropriate.
(h) Transparency.--Not later than 60 days after the date of
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, for the reporting
period--
(A) the number of petitions filed under subsection
(c)(1)(A);
(B) the number of individuals denied a firearm or explosive
transfer under an order granting such a petition; and
(C) the number of instances in which a court of appeals
denied such a petition; 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
Committee on Homeland Security and 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 denied a
petition by the Attorney General under subsection (c)(1)(A);
and
(ii) who submitted the order denying the petition to the
Department of Homeland Security under subsection (g)(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.
(i) 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.
(j) 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.
______