[Congressional Record (Bound Edition), Volume 162 (2016), Part 7]
[Senate]
[Pages 9901-9907]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 4857. Mr. GRASSLEY (for himself and Mr. Isakson) 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 in title V, insert the following:

     SEC. 5__. ADDITIONAL PROTECTIONS FOR OUR VETERANS.

       (a) In General.--Chapter 55 of title 38, United States 
     Code, is amended by adding at the end the following new 
     section:

     ``Sec. 5511. Conditions for treatment of certain persons as 
       adjudicated mentally incompetent for certain purposes

       ``(a) In General.--Beginning on the date of enactment of 
     this section, in any case arising out of the administration 
     by the Secretary of laws and benefits under this title, the 
     Secretary shall not determine a person to be adjudicated as a 
     mental defective under subsection (d)(4) or (g)(4) of section 
     922 of title 18 unless the Federal Government has met the 
     burden of proving, by clear and convincing evidence, that the 
     person is a danger to self or others. The process to 
     determine whether such person is a danger to self or others, 
     as set forth in this section, shall be separate from the 
     Department's process to determine a person mentally 
     incompetent for the purposes of assigning a fiduciary. A 
     person that is subject to the process that may result in a 
     finding that he or she is a danger to self or others shall be 
     provided formal notice and a process by which to challenge 
     the Federal Government's position, and shall be provided 
     written notice of the effect of the ruling with respect to 
     their ability to own and possess firearms and the protections 
     granted under this section.
       ``(b) Medical Review.--
       ``(1) In general.--The process by which a person may be 
     determined to be a danger to self or others shall be 
     initiated, with the exception of those persons described in 
     subsection (i)(1), only after 2 health care professionals of 
     the Department conclude, based on

[[Page 9902]]

     clear and convincing medical evidence, that the person is a 
     danger to self or others.
       ``(2) Limitation.--If a conclusion by 2 health care 
     professionals of the Department that a person is a danger to 
     self or others is not made in accordance with paragraph (1) , 
     the Federal Government may not begin the process to find that 
     such person is a danger to self or others.
       ``(c) Process.--If a conclusion that a person is a danger 
     to self or others is made under subsection (b)(1), not later 
     than 30 days after that date on which such conclusion is 
     made, the Department shall provide notice to the person, in 
     writing, of the medical finding, the rights and protections 
     afforded by this section, and the effect of a future 
     administrative or judicial ruling with respect to the ability 
     of the person to own and possess firearms.
       ``(d) Administrative Review.--(1) Except as provided in 
     subsection (i), not later than 60 days after the date on 
     which a person described in subsection (a) receives notice of 
     the pendency of the Federal Government action to determine 
     whether or not such person is a danger to self or others, 
     such person may request a review by the board designed or 
     established under paragraphs (2) and (3) or a court of 
     competent jurisdiction to determine whether such person is a 
     danger to self or others. If such person does not specify a 
     forum, the Federal Government shall choose the forum. In such 
     assessment, the board may consider the person's honorable 
     discharge or decoration and other mitigating factors.
       ``(2) Not later than 120 days after the date of enactment 
     of this section, the Secretary shall designate or establish a 
     board that shall, upon request of a person under subsection 
     (a), make a determination after both parties have presented 
     their case as to whether a person is a danger to self or 
     others. If the board determines that the Federal Government 
     failed to prove that the person is a danger to self or 
     others, the person shall not be required to present his or 
     her case.
       ``(3) The board shall consist of 3 former or current 
     Federal judicial officers for a term of two years each and a 
     majority decision shall control.
       ``(4) A determination by the board designated or 
     established under paragraphs (2) or by a court of competent 
     jurisdiction that a person does not meet the standard under 
     subsection (f) shall preclude the Secretary from reporting 
     such person to the National Instant Criminal Background Check 
     System for the purpose of prohibiting the acquisition, 
     receipt, transfer, shipment, transportation, or possession of 
     firearms or ammunition.
       ``(5) Not later than 90 days after the date on which the 
     person or Federal Government chooses the administrative 
     review process, the board shall make a determination. If the 
     board does not make a determination within the required 90-
     day period, the Secretary shall not report the person to the 
     National Instant Criminal Background Check System for the 
     purpose of prohibiting the acquisition, receipt, transfer, 
     shipment, transportation, or possession of firearms or 
     ammunition.
       ``(e) Judicial Review.--Not later than 45 days after the 
     date on which an assessment of a person under subsection (d) 
     is made, such person or the Federal Government may file a 
     petition for judicial review of the board's determination 
     with a court of competent jurisdiction. Such court shall 
     review the case de novo.
       ``(f) Burden of Proof.--The burden of proof for all actions 
     arising under this section shall be on the Federal Government 
     to prove, based on clear and convincing evidence, that a 
     person is a danger to self or others and such burden shall be 
     met before the person may be adjudicated as a mental 
     defective under subsection (d)(4) or (g)(4) of section 922 of 
     title 18.
       ``(g) Emergency Order.--(1) In the case of a person who the 
     Secretary believes may be an imminent danger to self or 
     others, the Secretary may file an emergency petition in a 
     court of competent jurisdiction to seek a temporary order 
     prohibiting the acquisition, receipt, transfer, shipment, 
     transportation, or possession of firearms or ammunition, if 
     the Secretary has already transmitted the notification letter 
     described in subsection (c). The court in which such action 
     is filed may, if the court finds probable cause exists that a 
     person is an imminent danger to self or others, grant such 
     petition. The Secretary shall submit to the court the 
     information and documents, in unredacted form, that support 
     the Secretary's position.
       ``(2) Except as provided in paragraph (3), an emergency 
     order issued under this subsection shall expire on the 
     earlier of--
       ``(A) the date that is 90 days after the date on which the 
     order is issued; or
       ``(B) the date on which a determination is made by the 
     board established under subsection (d)(2) or a court of 
     competent jurisdiction as to whether the person is a danger 
     to self or others.
       ``(3) The court may, in its discretion, extend an order 
     issued under this subsection for a reasonable amount of time.
       ``(h) Regulatory Changes.--Consistent with the requirements 
     imposed under this section, the Secretary shall review all 
     relevant regulations and revise such regulations as 
     necessary.
       ``(i) Persons With Existing Records.--(1) For persons with 
     existing records in the National Instant Criminal Background 
     Check System database supplied by the Secretary as of the 
     date of enactment of this section, not later than 90 days 
     after such date of enactment, the Secretary shall provide 
     written notice of the opportunity for administrative review 
     or judicial review consistent with this section.
       ``(2) Each person described in paragraph (1) may, at any 
     time, request administrative review under subsection (d) or 
     judicial review by a court of competent jurisdiction to 
     challenge the placement of the person in the National Instant 
     Criminal Background Check System database consistent with the 
     procedures set forth in this section. If such person does not 
     specify a forum, the Federal Government shall choose the 
     forum. In such assessment, the board may consider the 
     person's honorable discharge or decoration and other 
     mitigating factors.
       ``(3) In an action under this subsection, the failure of 
     the Federal Government to prove, based on clear and 
     convincing evidence, that a person is a danger to self or 
     others consistent with the procedures in this section shall 
     result in the removal of such person's information from the 
     National Instant Criminal Background Check System database.
       ``(j) New and Material Evidence.--A person or the Federal 
     government may reopen a finally adjudicated case by 
     submitting new and material evidence consistent with this 
     section.
       ``(k) Court of Competent Jurisdiction Defined.--In this 
     section, the term `court of competent jurisdiction' means the 
     district court of the United States for the district in which 
     the person who is subject to the assessment or determination 
     lives.''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of chapter 55 of such title is amended by adding at 
     the end the following new item:

``5511. Conditions for treatment of certain persons as adjudicated 
              mentally incompetent for certain purposes.''.

       (c) Applicability.--Section 5511 of title 38, United States 
     Code (as added by this section), shall apply, subject to the 
     aforementioned exceptions, with respect to all persons who 
     are determined by the Secretary of Veterans Affairs to be 
     mentally incompetent as of the date of enactment. After the 
     date of enactment of this Act, and separate from a finding of 
     mental incompetency, in any case arising out of the 
     administration by the Secretary of laws and benefits under 
     this title, for persons determined to be a danger to self or 
     others, such determination shall be made consistent with 
     section 5511 of title 38, United States Code (as added by 
     this Act).
       (d) Rule of Construction.--Nothing in this section or the 
     amendments made by this section shall be construed to require 
     that the Secretary of Veterans Affairs first determine that a 
     person is mentally incompetent for purposes of assigning a 
     fiduciary before the Secretary may initiate the process to 
     determine whether a person is a danger to self or others, 
     consistent with section 5511 of title 38, United States Code, 
     as added by this section.
                                 ______
                                 
  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

[[Page 9903]]

     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 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

[[Page 9904]]

     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--
       (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.
                                 ______
                                 
  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--

[[Page 9905]]

       (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 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;

[[Page 9906]]

       (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.
       (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.
                                 ______
                                 
  SA 4860. Mr. McCONNELL proposed an amendment to amendment SA 4859 
proposed by Mr. McConnell (for Mr. Johnson (for himself, Mr. Lankford, 
Mr. Cornyn, and Mr. Rubio)) to the 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:

       At the end, add the following:
       This Act shall take effect 1 day after the date of 
     enactment.
                                 ______
                                 
  SA 4861. Mr. ROUNDS submitted an amendment intended to be proposed by 
him to the bill H.R. 5293, making appropriations for the Department of 
Defense for the fiscal year ending September 30, 2017, and for other 
purposes; which was ordered to lie on the table; as follows:

       At the appropriate place, insert the following:
       Sec. __.  None of the funds appropriated or otherwise made 
     available by this Act for the Department of Defense may be 
     used to enter into a contract with any offeror or any of its 
     principals if the offeror certifies, pursuant to the Federal 
     Acquisition Regulation, that the offeror or any of its 
     principals--
       (1) within a three-year period preceding the offer has been 
     convicted of or had a civil judgment rendered against it 
     for--

[[Page 9907]]

       (A) commission of fraud or a criminal offense in connection 
     with obtaining, attempting to obtain, or performing a public 
     (Federal, State, or local) contract or subcontract;
       (B) violation of Federal or State antitrust laws relating 
     to the submission of offers; or
       (C) commission of embezzlement, theft, forgery, bribery, 
     falsification or destruction of records, making false 
     statements, tax evasion, violating Federal criminal tax laws, 
     or receiving stolen property;
       (2) is under indictment for, or otherwise criminally or 
     civilly charged by a governmental entity with, commission of 
     any of the offenses enumerated in paragraph (1); or
       (3) within a three-year period preceding the offer, has 
     been notified of any delinquent Federal taxes in an amount 
     that exceeds $3,000 for which the liability remains 
     unsatisfied.
                                 ______
                                 
  SA 4862. Ms. HIRONO 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. ____.  Of amounts provided by this Act or by any prior 
     appropriations Act that remain available for obligation, for 
     necessary expenses of the programs of the Bureau of Justice 
     Statistics of the Department of Justice, under section 302(c) 
     of the Omnibus Crime Control and Safe Streets Act of 1968 (42 
     U.S.C. 3732(c)), up to $1,000,000 shall be available to enter 
     into cooperative agreements with appropriate entities to 
     disaggregate local, State and Federal 
     criminal justice statistics to the extent possible by 
     ethnicity and the racial group categories in the decennial 
     census.
                                 ______
                                 
  SA 4863. Mr. THUNE 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. __.  The Administrator of the National Oceanic and 
     Atmospheric Administration shall ensure that the 
     Administration responds in a timely manner to requests from 
     the Chair or Ranking Member of a Congressional Committee or 
     their staff for responses to questions for the record, 
     requests for technical assistance, or views on legislation.
                                 ______
                                 
  SA 4864. Mr. McCONNELL (for Mr. Nelson) proposed an amendment to the 
concurrent resolution S. Con. Res. 39, honoring the members of the 
United States Air Force who were casualties of the June 25, 1996, 
terrorist bombing of the United States Sector Khobar Towers military 
housing complex on Dhahran Air Base; as follows:

       In the third whereas clause, strike ``Staff Sergeant Daniel 
     B. Cafourek'' and insert ``Technical Sergeant Daniel B. 
     Cafourek''.
       In the third whereas clause, strike ``Fenning'' and insert 
     ``Fennig''.

                          ____________________