[Congressional Record Volume 162, Number 101 (Thursday, June 23, 2016)]
[Senate]
[Pages S4555-S4557]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 4858. 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) submitted an amendment
intended to be proposed by her 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:
At the appropriate place, insert the following:
SEC. ___. DISCRETIONARY AUTHORITY TO DENY TRANSFERS OF
FIREARMS, EXPLOSIVES, AND 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 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 the
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 is operationally capable of doing so.
(B) Selectee list.--The Attorney General determines that
the 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, is--
(I) a member of a terrorist organization (including a
foreign terrorist organization designated pursuant to a
statute or Executive Order); and
(II) associated with terrorist activity, unless information
exists that demonstrates that the application of secondary
screening to such individual is not necessary.
(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 Firearms and Explosives
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
[[Page S4556]]
the Terrorist Screening Center of the Federal Bureau of
Investigation.
(c) Review of Denial.--
(1) Remedial procedures and petition for review.--
(A) 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--
(i) pursue the remedial procedures under section 103(g) of
Public Law 103-159 (18 U.S.C. 922 note); or
(ii) file a petition for review and any claims related to
that petition in the United States District Court for the
District of Columbia or in the district court of the United
States for the judicial district in which the individual
resides.
(B) Exhaustion not required.--A petitioner is not required
to exhaust the remedial procedures authorized under clause
(i) of subparagraph (A) before filing a petition for review
under clause (ii) of subparagraph (A).
(C) Procedures.--Notwithstanding any other provision of
law, the Attorney General may promulgate regulations
governing proceedings under subparagraph (A)(i) to prevent
the unauthorized disclosure of information that reasonably
could be expected to result in damage to national security or
ongoing law enforcement operations.
(2) Deadlines for filing.--
(A) In general.--Except as provided in subparagraph (B), a
petition for review under paragraph (1)(A)(ii), and any
claims related to that petition, shall be filed not later
than the earlier of--
(i) 1 year after the petitioner receives actual notice of
the reason for the denial by the Attorney General; or
(ii) 5 years after the petitioner receives notice of the
denial by the Attorney General.
(B) Exception.--The district court in which a petition for
review is to be filed under paragraph (1)(A)(ii) may allow
the petition to be filed after the deadline specified in
subparagraph (A) only if there is good cause for not filing
by that deadline.
(3) Authority of district courts.--The district court in
which a petition for review is filed under paragraph
(1)(A)(ii)--
(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 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
subsection (c)(1)(A)(ii).
(B) 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 district court under
subsection (c)(1)(A)(ii):
(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) a summary of known material mitigation information;
(C) any information the petitioner has submitted pursuant
to any administrative process; and
(D) any information determined relevant by the United
States.
(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 to petitioners
counsel, 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. The court shall review all
classified information in camera and ex parte unless it
enters an order under paragraph (C).
(B) The United States shall notify the petitioner if the
administrative record filed under paragraph (1) contains
classified information.
(C) The court is authorized to determine the extent to
which cleared counsel shall be permitted to access classified
information necessary to protect the due process rights of a
petitioner and enter an appropriate order.
(D)(i) If the court enters an order under subparagraph (C)
providing for the disclosure of 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 information not be disclosed.
(ii) If 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 by a court of
appeals pursuant to section 1292 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)(A) The administrative record may include information
obtained or derived from an order issued under the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.), without regard to subsections (c), (e), (f), (g), and
(h) of section 106 (50 U.S.C. 1806), subsections (d), (f),
(g), (h), and (i) of section 305 (50 U.S.C. 1825),
subsections (c), (e), (f), (g), and (h) of section 405 (50
U.S.C. 1845), and section 706 (50 U.S.C. 1881e) of that Act.
If the United States intends to use such information against
an aggrieved person (as defined in section 101, 301, or 401
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801, 1821, and 1841)), it shall provide in camera and
ex parte notice to the court concerning such use.
(B) If the court receives a notice under subparagraph (A),
the court shall review, in camera and ex parte, the order
described in that subparagraph and any other materials that
may be submitted by the United States.
(C) If the court determines that the order described in
subparagraph (A) was not lawfully authorized, or the
information was not obtained in conformity with the order, it
shall exclude such information from consideration as part of
the administrative record.
(8) 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.
(9) The court shall award reasonable attorney fees to a
petitioner who is a prevailing party in an action under this
section.
(10) 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 district court shall quash any
denial by the Attorney General under subsection (a)(1),
unless the United States demonstrates, based on the
administrative record, on a de novo review of fact and law--
(1) that the transferee or applicant--
(A) 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
(B) 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 is operationally capable of doing so; or
(2) that the transferee or applicant--
(A) 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
(B) based on credible information--
[[Page S4557]]
(i) is a member of a terrorist organization (including a
foreign terrorist organization designated pursuant to a
statute or Executive Order; and
(ii) is associated with terrorist activity, unless
information exists that demonstrates that the application of
secondary screening to such individual is not necessary.
(f) Effect of Quashing.--If the district court 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) Review of Decision of District Court.--A final decision
of a district court under this section shall be subject to
review by a court of appeals in accordance with section 1291
of title 28, United States Code.
(h) Exclusive Remedies.--The remedial procedures and a
petition for review authorized under subsection (c)(1)(A)
shall be the sole and exclusive remedies 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 district court shall determine whether to quash the
denial, unless the petitioner consents to a longer period.
(2) Of quashing.--If the district court 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
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 individuals denied a firearm or
explosives transfer or a license or permit under subsection
(a)(1) during the reporting period;
(B) the number of petitions for review filed under
subsection (c)(1)(A)(ii); and
(C) the number of instances in which a district court
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, the
Select Committee on Intelligence, and the Committee on the
Judiciary of the Senate and the Committee on Homeland
Security, the Permanent Select Committee on Intelligence, and
the Committee on the Judiciary of the House of
Representatives a report providing--
(A) the number individuals--
(i) with respect to whom a district court 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.
(7) Terrorist activity.--The term ``terrorist activity''
has the meaning given that term in section 212(a)(3)(B) of
the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)).
(l) Rule of Construction.--Nothing in this section shall be
construed to--
(1) except as set forth in this section, 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; or
(2) apply to any claim other than a claim challenging the
denial of a firearm, explosive, or issuance of a firearm or
explosives permit or license by the Attorney General.
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