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[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2458 Introduced in Senate (IS)]

<DOC>

115th CONGRESS
  2d Session
                                S. 2458

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

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                           February 27, 2018

 Ms. Collins (for herself, Ms. Heitkamp, Mr. Flake, Mr. Heinrich, Mr. 
Toomey, Ms. Baldwin, Mr. King, Mr. Nelson, Mr. Manchin, and Mr. Kaine) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

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

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Terrorist Firearms Prevention Act''.

SEC. 2. 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 (34 U.S.C. 40901), 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 (34 U.S.C. 40901(g)), 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 (34 
        U.S.C. 40901), 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 within 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 and 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 (34 U.S.C. 
                        40901(g)); 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 of 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--
                            (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 of 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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