§ 70105 — Transportation Worker Identification Credentials

(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 worker identification credential 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 worker identification credential 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). (1) The Secretary shall issue a biometric transportation worker identification credential 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 credential. (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 allowed unescorted access to a secure area designated in a vessel security plan approved under section 70103 of this title; (C) a vessel pilot; (D) an individual engaged on a towing vessel that pushes, pulls, or hauls alongside a tank vessel allowed unescorted access to a secure area designated in a vessel security plan approved under section 70103 of this title; (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; (G) a member of the Armed Forces who— (i) is undergoing separation, discharge, or release from the Armed Forces under honorable conditions; (ii) applies for a transportation worker identification credential; and (iii) is otherwise eligible for such a credential; and (H) other individuals as determined appropriate by the Secretary including individuals employed at a port not otherwise covered by this subsection. (3) The Secretary may extend for up to one year the expiration of a biometric transportation worker identification credential required by this section to align the expiration with the expiration of a license, certificate of registry, or merchant mariner document required under chapter 71 or 73. (A) Except as provided under paragraph (2), an individual is permanently disqualified from being issued a biometric transportation worker identification credential 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) Except as provided under paragraph (2), an individual is disqualified from being issued a biometric transportation worker identification credential 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 credential, or was released from incarceration during the 5-year period ending on the date on which the individual applies for such credential, 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) or a comparable State law, other than any of the violations listed in subparagraph (A)(x). (C) 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 worker identification credential under subsection (b) until the want or warrant is released or the indictment is dismissed. (D) Except as provided under subparagraphs (A) through (C), an individual may not be denied a transportation worker identification credential 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) 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 worker identification credential to an individual found to be otherwise ineligible for such a credential under subparagraph (A), (B), or (D) of paragraph (1). In deciding to issue a credential 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 credential; 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. (A) The Secretary shall establish a review process before an administrative law judge for individuals denied a waiver under paragraph (2). (B) 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) The Secretary, in consultation with the Director of National Intelligence, 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. (i) 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) 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) 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) 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 worker identification credential that includes notice and an opportunity for a hearing. (5) Upon application, the Secretary may issue a transportation worker identification credential to an individual if the Secretary has previously determined, under section 5103a of title 49, that the individual does not pose a security risk. (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. (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 worker identification credential 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 credential under this section. (f) 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) The Administrator of the Transportation Security Administration and the Commandant of the Coast Guard shall— (1) develop and, no later than 2 years after the date of enactment of the Elijah E. Cummings Coast Guard Authorization Act of 2020, implement a joint application for merchant mariner’s documents under chapter 73 and for a transportation worker identification credential issued under this section; and (2) upon receipt of a joint application developed under paragraph (1) concurrently process an application from an individual for merchant mariner’s documents under chapter 73 and an application from such individual for a transportation worker identification credential under this section. (h) The Secretary shall ensure that the fees charged each individual applying for a transportation worker identification credential 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 worker identification credential, 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. (1) The Secretary and the Secretary of Defense shall enter into a memorandum of understanding regarding the submission and processing of applications for transportation worker identification credentials under subsection (b)(2)(G). (2) Not later than 30 days after the submission of such an application by an individual who is eligible to submit such an application, the Secretary shall process and approve or deny the application unless an appeal or waiver applies or further application documentation is necessary. (A) The Secretary shall conduct a pilot program to test the business processes, technology, and operational impacts required to deploy transportation worker identification credential readers at secure areas of the marine transportation system. (B) 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) The pilot program shall commence not later than 180 days after the date of the enactment of the SAFE Port Act. (A) The pilot program described in paragraph (1) shall be conducted concurrently with the issuance of the transportation worker identification credentials described in subsection (b) to ensure credential and credential reader interoperability. (B) An individual charged a fee for a transportation worker identification credential issued under this section may not be charged an additional fee if the Secretary determines different transportation worker identification credentials 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 worker identification credential program. (3) 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 worker identification credential readers that are consistent with the findings of the pilot program and build upon the regulations prescribed under subsection (a). (k) The Secretary may not require the placement of an electronic reader for transportation worker identification credentials on a vessel unless— (1) the vessel has more individuals on the crew that are required to have a transportation worker identification credential than the number the Secretary determines, by regulation issued under subsection (j)(3), warrants such a reader; or (2) the Secretary determines that the vessel is at risk of a severe transportation security incident. (l) The Secretary may use a secondary authentication system to verify the identification of individuals using transportation worker identification credentials when the individual’s fingerprints are not able to be taken or read. (m) The Secretary shall coordinate with owners and operators subject to this section to allow any individual who has a pending application for a transportation worker identification credential under this section or is waiting for reissuance of such credential, including any individual whose credential has been lost or stolen, and who needs to perform work in a secure or restricted area to have access to such area for that purpose through escorting of such individual in accordance with subsection (a)(1)(B) by another individual who holds a transportation worker identification credential. Nothing in this subsection shall be construed as requiring or compelling an owner or operator to provide escorted access. (n) The Secretary shall review an initial transportation worker identification credential application and respond to the applicant, as appropriate, including the mailing of an Initial Determination of Threat Assessment letter, within 30 days after receipt of the initial application. The Secretary shall, to the greatest extent practicable, review appeal and waiver requests submitted by a transportation worker identification credential applicant, and send a written decision or request for additional information required for the appeal or waiver determination, within 30 days after receipt of the applicant’s appeal or waiver written request. For an applicant that is required to submit additional information for an appeal or waiver determination, the Secretary shall send a written decision, to the greatest extent practicable, within 30 days after receipt of all requested information. (1) Not later than one year after the date of publication of final regulations required by subsection (j)(3) of this section the Secretary shall develop a plan to permit the receipt and activation of transportation worker identification credentials at any vessel or facility described in subsection (a) of this section that desires to implement this capability. Such receipt and activation shall comply, to the extent possible, with all appropriate requirements of Federal standards for personal identity verification and credential. (2) The Secretary may not require any such vessel or facility to provide on-site receipt and activation of transportation worker identification credentials.