§ 70105. Transportation security cards
(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—
(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;
(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:
(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.
(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—
(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.
(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—
(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.
(vii)
Distribution of, possession with intent to distribute, or importation of a controlled substance.
(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—
(ii)
has been released from incarceration within the preceding 5-year period for committing a felony described in clause (i);
(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—
(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.
(d)
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)—
(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;
(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.
(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;
(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] So in original. Probably should be followed by a comma.
[2] So in original. Probably should be followed by “of”.