H. R. 1690
IN THE HOUSE OF REPRESENTATIVES
May 3, 2011
Mr. Rogers of Alabama (for himself, Mr. McCaul, Mr. Walsh of Illinois, and Mr. Brooks) introduced the following bill; which was referred to the Committee on Homeland Security
To amend titles 49 and 46, United States Code, and the Homeland Security Act of 2002 to provide for certain improvements in surface transportation security, and for other purposes.
This Act may be cited as the
Modernizing of Documentation and
Elimination of Redundant Identification and Security Credentials
Act or the
MODERN Security Credentials
Consolidation and harmonization of security threat assessment process for transportation workers
Requirement for Rulemaking
By not later than one year after the date of the enactment of this Act, the Secretary of Homeland Security shall, by rulemaking, consolidate and harmonize the Department of Homeland Security’s security threat assessment process for transportation workers, to reduce redundant background checks performed by the Department to the extent possible under law and in accordance with the relative security vulnerabilities of the transportation sectors and any other security considerations the Secretary determines are relevant.
In developing the rulemaking under subsection (a), the Secretary shall, within 120 days of enactment of this Act, consult with and seek input from representatives from air carriers, airport operators, labor organizations, port authorities, port operators, and other relevant stakeholders.
Existing processes and functions
Any rule issued under subsection (a) shall not apply to a process or function carried out by a non-Federal airport operator as of the date of enactment of this Act.
Authority to restrict access
Nothing in any rule issued under subsection (a) shall affect the authority of an airport operator to restrict an individual’s access to secure areas within an airport or other aviation facility.
The rulemaking under subsection (a) shall include an analysis of—
how security threat assessment processes for transportation workers will be consolidated and harmonized;
any reductions in costs or fees that will be realized; and
any other efficiencies, including a reduction or streamlining of pertinent regulations, that will be realized.
Transportation Security Administration employment disqualification
Section 44936 of title 49, United States Code, is amended—
(a)(1)(A), by striking
Under Secretary of Transportation for
Security and inserting
Secretary of Homeland Security (in this
section referred to as the ;
Under Secretary each place it appears (other than in subsection
(a)(1)(A)) and inserting
in subsection (a)(2), by inserting before the period the following: “and the results of that investigation are provided to the Secretary”;
in subsection (b)—
in paragraph (1)—
in subparagraph (A), by striking “or”; and
by striking subparagraph (B) and inserting the following new subparagraphs:
the Secretary determines that the individual is disqualified under section 70105(c)(1) of title 46 from being issued a biometric or other transportation security card; or
the Secretary determines that the individual poses a threat to transportation or national security.
by adding at the end the following new paragraphs:
An individual disqualified by the Federal Government from being issued a biometric or other transportation security card under paragraph (1)(B) may seek a waiver pursuant to paragraphs (2) and (3) of section 70105(c) of title 46.
Nothing in this subsection shall affect the authority of an air carrier, foreign air carrier, airport operator, or government, to disqualify any individual from employment based on a review or adjudication of a criminal history record check.
An airport operator shall not be required to issue an airport credential providing unescorted access to a Secure Identification Display Area to any individual based solely on the waiver process established under this section.
No cause of action, suit, or other proceeding shall arise—
from any denial of a request of a waiver under this section; or
from any disqualification for employment, if the cause of action, suit, or proceeding is based solely on the fact that the applicant for employment was granted a waiver under this subsection.
in subsection (d), by adding at the end the following: “The fees authorized under this section—
shall not exceed the aggregate costs incurred by the Department of Homeland Security associated with performing background record checks;
must be reasonably related to the costs of incurred from—
conducting or obtaining a criminal history record check or reviewing available law enforcement databases and commercial databases and records of other governmental and international agencies;
reviewing and adjudicating requests for waiver and appeals of agency decisions with respect to performing the background record check and denying requests for waiver and appeals; and
any other costs related to performing the background record check; and
may be used, subject to appropriations, only to pay the costs incurred in providing services in connection with the activity or item for which the fee is charged, and may remain available until expended.
by adding at the end the following new subsection:
Use of information
Any information constituting grounds for disqualifying an individual from being issued a biometric or other transportation security card under subsection (b)(1) by the Federal Government shall be maintained by the Secretary and may be shared to the extent allowable under section 552a of title 5.
Disqualification from being issued a biometric transportation security card
Permanently disqualifying offenses
Section 70105(c)(1)(A) of title 46, United States Code, is amended—
by redesignating clauses (v), (vi), (vii), (viii), (ix), (x), (xi), and (xii) as clauses (vii), (viii), (ix), (x), (xi), (xii), (xiv), and (xv), respectively;
by inserting after clause (iv) the following new clauses:
Aircraft piracy punishable under section 46502(a) of title 49.
Aircraft piracy outside the special aircraft jurisdiction of the United States punishable under section 46502(b) of title 49.
by inserting after clause (xii), as so redesignated, the following new clause:
Improper transportation of a hazardous material punishable under section 46312 of title 49.
in clause (xiv),
as so redesignated, by striking
(iv) and inserting
in clause (xv), as
so redesignated, by striking
clauses (v) through (x) and
clauses (vii) through (xiii).
Interim disqualifying offenses
Section 70105(c)(1)(B) of title 46, United States Code, is amended by adding at the end the following new clauses:
Interference with air navigation punishable under section 46308 of title 49.
Forgery of certificates, false marking of aircraft, and other aircraft registration violations punishable under section 46306 of title 49.
Interference with flight crew members or flight attendants punishable under section 46504 of title 49.
Commission of certain crimes aboard aircraft in flight punishable under section 46506 of title 49.
Carrying a weapon or explosive aboard aircraft punishable under section 46505 of title 49.
Destruction of an aircraft or aircraft facility punishable under section 32 of title 18.
Unlawful entry into an aircraft or airport area that serves air carriers or foreign air carriers contrary to established security requirements punishable under section 46314 of title 49.
Lighting violations involving transportation of controlled substances punishable under section 46315 of title 49.
Violence at international airports punishable under section 37 of title 18.
Conveying false information and threats punishable under section 46507 of title 49.
Surface transportation security
The Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is amended by adding at the end the following:
Surface Transportation Security
Transportation of security-sensitive materials
Not later than one year after the date of enactment of this section, the Secretary shall issue final regulations, after notice and comment, defining security-sensitive materials for the purposes of this title.
Motor vehicle operators
The Secretary shall prohibit an individual from operating a motor vehicle in commerce while transporting a security-sensitive material unless the individual holds a valid transportation security card issued by the Secretary under section 70105 of title 46, United States Code.
The Secretary shall prohibit a person from—
offering a security-sensitive material for transportation by motor vehicle in commerce; or
causing a security-sensitive material to be transported by motor vehicle in commerce,
Memorandum of understanding
The Secretary may enter into a memorandum of understanding with the Secretary of Transportation to ensure compliance with this section.
Limitation on Application
This section and the regulations and prohibitions under this section shall not apply to the United States Postal Service and any other department, agency, or instrumentality of the Federal Government.
The Secretary shall—
work with appropriate entities to ensure that enrollment locations for individuals applying for a transportation security card under section 70105 of title 46, United States Code, have flexible operating hours; and
permit an individual applying for such transportation security card to utilize an enrollment location outside of the individual’s State of residence to the greatest extent practicable.
Number of Locations
The Secretary shall develop and implement a plan—
to offer individuals applying for a transportation security card under section 70105 of title 46, United States Code, the maximum number of enrollment locations practicable across diverse geographic regions; and
to conduct outreach to appropriate stakeholders, including owners and operators of motor vehicles involved in the transportation of security-sensitive materials, and labor organizations representing employees of such owners or operators to keep the stakeholders informed of the timeframe and locations for the opening of additional enrollment locations.
Commercial motor vehicle operators registered to operate in Mexico or Canada
The Secretary shall prohibit a commercial motor vehicle operator licensed to operate in Mexico or Canada from operating a commercial motor vehicle transporting a security-sensitive material in commerce in the United States until the operator has been subjected to, and not disqualified as a result of, a security background records check by a Federal agency that the Secretary determines is similar to the security background records check required for commercial motor vehicle operators in the United States transporting security-sensitive materials in commerce.
Redundant background checks
The Secretary shall prohibit a State or political subdivision thereof from requiring a separate security background check of an individual seeking to transport security-sensitive material.
The Secretary may waive the application of subsection (a) with respect to a State or political subdivision thereof if the State or political subdivision demonstrates a compelling reason that a separate security background check is necessary to ensure the secure transportation of security-sensitive material in the State or political subdivision.
Limitation on statutory construction
Nothing in this section shall limit the authority of a State to ensure that an individual has the requisite knowledge and skills to safely transport hazardous materials in commerce.
Treatment of individuals receiving prior hazardous materials endorsements
An individual who has obtained a hazardous materials endorsement in accordance with section 1572 of title 49, Code of Federal Regulations, before the date of enactment of this title, is deemed to have met the background check requirements of a transportation security card under section 70105 of title 46, United States Code, subject to reissuance or expiration dates of the hazardous materials endorsement.
Reduction in fees
The Secretary shall reduce, to the greatest extent practicable, any fees associated with obtaining a transportation security card under section 70105 of title 46, United Sates Code, for any individual referred to in subsection (a).
Nothing in this title shall be construed as affecting the authority of the Secretary of Transportation to regulate hazardous materials under chapter 51 of title 49, United States Code.
In this title, the following definitions apply:
commerce means trade or transportation in the jurisdiction
of the United States—
between a place in a State and a place outside of the State; or
that affects trade or transportation between a place in a State and a place outside of the State.
hazardous material has the
meaning given that term in section 5102 of title 49, United States Code.
person, in addition to its meaning under section 1 of title
1, United States Code, includes a State, local, or tribal government offering
security-sensitive material for transportation in commerce or transporting
security-sensitive material to further a commercial enterprise.
security-sensitive material has
the meaning given that term in section 1501 of the Implementing Recommendations
of the 9/11 Commission Act of 2007 (6 U.S.C. 1151).
transportation means the movement of property and loading,
unloading, or storage incidental to such
The table of contents contained in section 1(b) of the Homeland Security Act of 2002 (116 Stat. 2135) is amended by adding at the end the following:
Title XXI—Surface Transportation Security
Sec. 2101. Transportation of security-sensitive materials.
Sec. 2102. Enrollment locations.
Sec. 2103. Commercial motor vehicle operators registered to operate in Mexico or Canada.
Sec. 2104. Redundant background checks.
Sec. 2105. Transition.
Sec. 2106. Savings clause.
Sec. 2107. Definitions.
Security cards for certain motor vehicle operators
Section 70105(b)(2) of title
46, United States Code, is amended by striking
and after the
semicolon at the end of subparagraph (F), by striking the period at the end of
subparagraph (G) and inserting
; and, and by adding at the end
the following new subparagraph:
an individual who operates a motor vehicle in commerce while transporting security-sensitive material (as that term is defined in section 1501 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (6 U.S.C. 1151).
Section 114(v) of title 49, United States Code, is amended—
(1)(A), by inserting
under title XXI of the Homeland Security Act of
2002 or after
Secretary of Homeland Security; and
applicable provision of this title each place it appears and
Limitation on issuance of HAZMAT licenses
Section 5103a of title 49, United States Code, and the item relating to that section in the analysis for chapter 51 of such title, are repealed.
Deadlines and effective dates
Issuance of transportation security cards
Not later than one year after the date of the enactment of this Act, the Secretary of Homeland Security (as that term is defined in section 70101 of title 46, United States Code) shall begin issuance of transportation security cards under section 70105(b)(2)(H) of title 46, United States Code, as amended by this Act, to individuals who seek to operate a motor vehicle in commerce while transporting security-sensitive materials.
Effective date of prohibitions
The prohibitions under in section 2101 of the Homeland Security Act of 2002 (as added by section 5) shall take effect on the date that is 2 years after the date of enactment of this Act.
Effective date of section 6 amendments
The amendments made by section 6 of this Act shall take effect on the date that is 2 years after the date of enactment of this Act.
Task force on disqualifying crimes
The Secretary of Homeland Security shall establish a task force, with an official designated by the Secretary to be the Chair of the task force, to review the lists of crimes that disqualify individuals from transportation-related employment under current regulations of the Transportation Security Administration and assess whether such lists of crimes are accurate indicators of a terrorism security risk.
The task force shall be composed of representatives of appropriate industries, including labor unions representing employees of such industries, Federal agencies, and other appropriate entities, as determined by the Secretary.
Not later than one year after the date of enactment of this Act, the task force shall submit to the Secretary and the Committee on Homeland Security of the House of Representatives a report containing the results of the review, including recommendations for a common list of disqualifying crimes and the rationale for the inclusion of each crime on the list.