Current as of: January 2009 (a) Prohibition. - (1) The Secretary shall prescribe regulations
to prevent an individual from entering an area of a vessel or
facility that is designated as a secure area by the Secretary for
purposes of a security plan for the vessel or facility that is
approved by the Secretary under section 70103 of this title unless
the individual -
(A) holds a transportation security card issued under this
section and is authorized to be in the area in accordance with
the plan; or
(B) is accompanied by another individual who holds a
transportation security card issued under this section and is
authorized to be in the area in accordance with the plan.
(2) A person shall not admit an individual into such a secure
area unless the entry of the individual into the area is in
compliance with paragraph (1).
(b) Issuance of Cards. - (1) The Secretary shall issue a
biometric transportation security card to an individual specified
in paragraph (2), unless the Secretary determines under subsection
(c) that the individual poses a security risk warranting denial of
the card.
(2) This subsection applies to -
(A) an individual allowed unescorted access to a secure area
designated in a vessel or facility security plan approved under
section 70103 of this title;
(B) an individual issued a license, certificate of registry, or
merchant mariners document under part E of subtitle II of this
title;
(C) a vessel pilot;
(D) an individual engaged on a towing vessel that pushes,
pulls, or hauls alongside a tank vessel;
(E) an individual with access to security sensitive information
as determined by the Secretary;
(F) other individuals engaged in port security activities as
determined by the Secretary; and
(G) other individuals as determined appropriate by the
Secretary including individuals employed at a port not otherwise
covered by this subsection.
(c) Determination of Terrorism Security Risk. -
(1) Disqualifications. -
(A) Permanent disqualifying criminal offenses. - Except as
provided under paragraph (2), an individual is permanently
disqualified from being issued a biometric transportation
security card under subsection (b) if the individual has been
convicted, or found not guilty by reason of insanity, in a
civilian or military jurisdiction of any of the following
felonies:
(i) Espionage or conspiracy to commit espionage.
(ii) Sedition or conspiracy to commit sedition.
(iii) Treason or conspiracy to commit treason.
(iv) A Federal crime of terrorism (as defined in section
2332b(g) of title 18), a crime under a comparable State law,
or conspiracy to commit such crime.
(v) A crime involving a transportation security incident.
(vi) Improper transportation of a hazardous material in
violation of section 5104(b) of title 49, or a comparable
State law.
(vii) Unlawful possession, use, sale, distribution,
manufacture, purchase, receipt, transfer, shipment,
transportation, delivery, import, export, or storage of, or
dealing in, an explosive or explosive device. In this clause,
an explosive or explosive device includes -
(I) an explosive (as defined in sections 232(5) and
844(j) of title 18);
(II) explosive materials (as defined in subsections (c)
through (f) of section 841 of title 18); and
(III) a destructive device (as defined in 921(a)(4) of
title 18 or section 5845(f) of the Internal Revenue Code of
1986).
(viii) Murder.
(ix) Making any threat, or maliciously conveying false
information knowing the same to be false, concerning the
deliverance, placement, or detonation of an explosive or
other lethal device in or against a place of public use, a
State or other government facility, a public transportation
system, or an infrastructure facility.
(x) A violation of chapter 96 of title 18, popularly known
as the Racketeer Influenced and Corrupt Organizations Act, or
a comparable State law, if one of the predicate acts found by
a jury or admitted by the defendant consists of one of the
crimes listed in this subparagraph.
(xi) Attempt to commit any of the crimes listed in clauses
(i) through (iv).
(xii) Conspiracy or attempt to commit any of the crimes
described in clauses (v) through (x).
(B) Interim disqualifying criminal offenses. - Except as
provided under paragraph (2), an individual is disqualified
from being issued a biometric transportation security card
under subsection (b) if the individual has been convicted, or
found not guilty by reason of insanity, during the 7-year
period ending on the date on which the individual applies for
such card, or was released from incarceration during the 5-year
period ending on the date on which the individual applies for
such card, of any of the following felonies:
(i) Unlawful possession, use, sale, manufacture, purchase,
distribution, receipt, transfer, shipment, transportation,
delivery, import, export, or storage of, or dealing in, a
firearm or other weapon. In this clause, a firearm or other
weapon includes -
(I) firearms (as defined in section 921(a)(3) of title 18
or section 5845(a) of the Internal Revenue Code of 1986);
and
(II) items contained on the U.S. Munitions Import List
under section 447.21 of title 27, Code of Federal
Regulations.
(ii) Extortion.
(iii) Dishonesty, fraud, or misrepresentation, including
identity fraud and money laundering if the money laundering
is related to a crime described in this subparagraph or
subparagraph (A). In this clause, welfare fraud and passing
bad checks do not constitute dishonesty, fraud, or
misrepresentation.
(iv) Bribery.
(v) Smuggling.
(vi) Immigration violations.
(vii) Distribution of, possession with intent to
distribute, or importation of a controlled substance.
(viii) Arson.
(ix) Kidnaping or hostage taking.
(x) Rape or aggravated sexual abuse.
(xi) Assault with intent to kill.
(xii) Robbery.
(xiii) Conspiracy or attempt to commit any of the crimes
listed in this subparagraph.
(xiv) Fraudulent entry into a seaport in violation of
section 1036 of title 18, or a comparable State law.
(xv) A violation of the chapter 96 of title 18, popularly
known as the Racketeer Influenced and Corrupt Organizations
Act (!1) or a comparable State law, other than any of the
violations listed in subparagraph (A)(x).
(C) Under want, warrant, or indictment. - An applicant who is
wanted, or under indictment, in any civilian or military
jurisdiction for a felony listed in paragraph (1)(A), is
disqualified from being issued a biometric transportation
security card under subsection (b) until the want or warrant is
released or the indictment is dismissed.
(D) Other potential disqualifications. - Except as provided
under subparagraphs (A) through (C), an individual may not be
denied a transportation security card under subsection (b)
unless the Secretary determines that individual -
(i) has been convicted within the preceding 7-year period
of a felony or found not guilty by reason of insanity of a
felony -
(I) that the Secretary believes could cause the
individual to be a terrorism security risk to the United
States; or
(II) for causing a severe transportation security
incident;
(ii) has been released from incarceration within the
preceding 5-year period for committing a felony described in
clause (i);
(iii) may be denied admission to the United States or
removed from the United States under the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.); or
(iv) otherwise poses a terrorism security risk to the
United States.
(E) Modification of listed offenses. - The Secretary may, by
rulemaking, add to or modify the list of disqualifying crimes
described in paragraph (1)(B).
(2) The Secretary shall prescribe regulations that establish a
waiver process for issuing a transportation security card to an
individual found to be otherwise ineligible for such a card under
subparagraph (A), (B), or (D) (!2) paragraph (1). In deciding to
issue a card to such an individual, the Secretary shall -
(A) give consideration to the circumstances of any
disqualifying act or offense, restitution made by the
individual, Federal and State mitigation remedies, and other
factors from which it may be concluded that the individual does
not pose a terrorism risk warranting denial of the card; and
(B) issue a waiver to an individual without regard to whether
that individual would otherwise be disqualified if the
individual's employer establishes alternate security
arrangements acceptable to the Secretary.
(3) Denial of waiver review. -
(A) In general. - The Secretary shall establish a review
process before an administrative law judge for individuals
denied a waiver under paragraph (2).
(B) Scope of review. - In conducting a review under the
process established pursuant to subparagraph (A), the
administrative law judge shall be governed by the standards of
section 706 of title 5. The substantial evidence standard in
section 706(2)(E) of title 5 shall apply whether or not there
has been an agency hearing. The judge shall review all facts on
the record of the agency.
(C) Classified evidence. - The Secretary, in consultation
with the National Intelligence Director, shall issue
regulations to establish procedures by which the Secretary, as
part of a review conducted under this paragraph, may provide to
the individual adversely affected by the determination an
unclassified summary of classified evidence upon which the
denial of a waiver by the Secretary was based.
(D) Review of classified evidence by administrative law
judge. -
(i) Review. - As part of a review conducted under this
section, if the decision of the Secretary was based on
classified information (as defined in section 1(a) of the
Classified Information Procedures Act (18 U.S.C. App.)), such
information may be submitted by the Secretary to the
reviewing administrative law judge, pursuant to appropriate
security procedures, and shall be reviewed by the
administrative law judge ex parte and in camera.
(ii) Security clearances. - Pursuant to existing procedures
and requirements, the Secretary, in coordination (as
necessary) with the heads of other affected departments or
agencies, shall ensure that administrative law judges
reviewing negative waiver decisions of the Secretary under
this paragraph possess security clearances appropriate for
such review.
(iii) Unclassified summaries of classified evidence. - As
part of a review conducted under this paragraph and upon the
request of the individual adversely affected by the decision
of the Secretary not to grant a waiver, the Secretary shall
provide to the individual and reviewing administrative law
judge, consistent with the procedures established under
clause (i), an unclassified summary of any classified
information upon which the decision of the Secretary was
based.
(E) New evidence. - The Secretary shall establish a process
under which an individual may submit a new request for a
waiver, notwithstanding confirmation by the administrative law
judge of the Secretary's initial denial of the waiver, if the
request is supported by substantial evidence that was not
available to the Secretary at the time the initial waiver
request was denied.
(4) The Secretary shall establish an appeals process under this
section for individuals found to be ineligible for a
transportation security card that includes notice and an
opportunity for a hearing.
(5) Upon application, the Secretary may issue a transportation
security card to an individual if the Secretary has previously
determined, under section 5103a of title 49, that the individual
does not pose a security risk.
(d) Background Records Check. - (1) On request of the Secretary,
the Attorney General shall -
(A) conduct a background records check regarding the
individual; and
(B) upon completing the background records check, notify the
Secretary of the completion and results of the background records
check.
(2) A background records check regarding an individual under this
subsection shall consist of the following:
(A) A check of the relevant criminal history databases.
(B) In the case of an alien, a check of the relevant databases
to determine the status of the alien under the immigration laws
of the United States.
(C) As appropriate, a check of the relevant international
databases or other appropriate means.
(D) Review of any other national security-related information
or database identified by the Attorney General for purposes of
such a background records check.
(e) Restrictions on Use and Maintenance of Information. - (1)
Information obtained by the Attorney General or the Secretary under
this section may not be made available to the public, including the
individual's employer.
(2) Any information constituting grounds for denial of a
transportation security card under this section shall be maintained
confidentially by the Secretary and may be used only for making
determinations under this section. The Secretary may share any such
information with other Federal law enforcement agencies. An
individual's employer may only be informed of whether or not the
individual has been issued the card under this section.
(f) Definition. - In this section, the term "alien" has the
meaning given the term in section 101(a)(3) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(3)).
(g) Applications for Merchant Mariners' Documents. - The
Assistant Secretary of Homeland Security for the Transportation
Security Administration and the Commandant of the Coast Guard shall
concurrently process an application from an individual for merchant
mariner's documents under chapter 73 of title 46, United States
Code, and an application from that individual for a transportation
security card under this section.
(h) Fees. - The Secretary shall ensure that the fees charged each
individual applying for a transportation security card under this
section who has passed a background check under section 5103a(d) of
title 49, United States Code, and who has a current hazardous
materials endorsement in accordance with section 1572 of title 49,
Code of Federal Regulations, and each individual with a current
merchant mariners' document who has passed a criminal background
check under section 7302(d) -
(1) are for costs associated with the issuance, production, and
management of the transportation security card, as determined by
the Secretary; and
(2) do not include costs associated with performing a
background check for that individual, except for any incremental
costs in the event that the scope of such background checks
diverge.
(i) Implementation Schedule. - In implementing the transportation
security card program under this section, the Secretary shall -
(1) establish a priority for each United States port based on
risk, including vulnerabilities assessed under section 70102; and
(2) implement the program, based upon such risk and other
factors as determined by the Secretary, at all facilities
regulated under this chapter at -
(A) the 10 United States ports that the Secretary designates
top priority not later than July 1, 2007;
(B) the 40 United States ports that are next in order of
priority to the ports described in subparagraph (A) not later
than January 1, 2008; and
(C) all other United States ports not later than January 1,
2009.
(j) Transportation Security Card Processing Deadline. - Not later
than January 1, 2009, the Secretary shall process and issue or deny
each application for a transportation security card under this
section for individuals with current and valid merchant mariners'
documents on the date of the enactment of the SAFE Port Act.
(k) Deployment of Transportation Security Card Readers. -
(1) Pilot program. -
(A) In general. - The Secretary shall conduct a pilot program
to test the business processes, technology, and operational
impacts required to deploy transportation security card readers
at secure areas of the marine transportation system.
(B) Geographic locations. - The pilot program shall take
place at not fewer than 5 distinct geographic locations, to
include vessels and facilities in a variety of environmental
settings.
(C) Commencement. - The pilot program shall commence not
later than 180 days after the date of the enactment of the SAFE
Port Act.
(2) Correlation with transportation security cards. -
(A) In general. - The pilot program described in paragraph
(1) shall be conducted concurrently with the issuance of the
transportation security cards described in subsection (b) to
ensure card and card reader interoperability.
(B) Fee. - An individual charged a fee for a transportation
security card issued under this section may not be charged an
additional fee if the Secretary determines different
transportation security cards are needed based on the results
of the pilot program described in paragraph (1) or for other
reasons related to the technology requirements for the
transportation security card program.
(3) Regulations. - Not later than 2 years after the
commencement of the pilot program under paragraph (1)(C), the
Secretary, after a notice and comment period that includes at
least 1 public hearing, shall promulgate final regulations that
require the deployment of transportation security card readers
that are consistent with the findings of the pilot program and
build upon the regulations prescribed under subsection (a).
(4) Report. - Not later than 120 days before the promulgation
of regulations under paragraph (3), the Secretary shall submit a
comprehensive report to the appropriate congressional committees
(as defined in section 2(1) of SAFE Port Act) that includes -
(A) the findings of the pilot program with respect to
technical and operational impacts of implementing a
transportation security card reader system;
(B) any actions that may be necessary to ensure that all
vessels and facilities to which this section applies are able
to comply with such regulations; and
(C) an analysis of the viability of equipment under the
extreme weather conditions of the marine environment.
(l) Progress Reports. - Not later than 6 months after the date of
the enactment of the SAFE Port Act, and every 6 months thereafter
until the requirements under this section are fully implemented,
the Secretary shall submit a report on progress being made in
implementing such requirements to the appropriate congressional
committees (as defined in section 2(1) of the SAFE Port Act).
(m) Limitation. - The Secretary may not require the placement of
an electronic reader for transportation security cards on a vessel
unless -
(1) the vessel has more individuals on the crew that are
required to have a transportation security card than the number
the Secretary determines, by regulation issued under subsection
(k)(3), warrants such a reader; or
(2) the Secretary determines that the vessel is at risk of a
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