Senate Bill sb2524
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Florida Senate - 2004 SB 2524
By Senator Hill
1-1906-04
1 A bill to be entitled
2 An act relating to seaport security standards;
3 amending s. 311.12, F.S.; requiring that each
4 seaport security plan have a procedure that
5 notifies an individual that he or she is
6 disqualified from employment within, or regular
7 access to, a seaport or a seaport's restricted
8 access area; requiring each plan to include a
9 procedure by which the individual may appeal
10 the decision of the seaport; directing a
11 seaport to have its procedures in substantial
12 compliance with federal regulations; providing
13 criteria for seaports to consider for inclusion
14 in procedures for appeals and waivers from
15 disqualification; providing that an individual
16 remain free from subsequent convictions for 5
17 years before seeking employment in, or access
18 to, a seaport; requiring each seaport to report
19 to the Department of Law Enforcement by a
20 specified date the number of waivers from
21 disqualification issued in the previous 12
22 months; amending s. 311.125, F.S.; conforming
23 provisions to changes made by the act;
24 providing an effective date.
25
26 Be It Enacted by the Legislature of the State of Florida:
27
28 Section 1. Section 311.12, Florida Statutes, is
29 amended to read:
30 311.12 Seaport security standards.--
31
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1 (1)(a) The statewide minimum standards for seaport
2 security for each seaport identified in s. 311.09 shall be
3 those based upon the Florida Seaport Security Assessment 2000
4 and set forth in the "Port Security Standards--Compliance
5 Plan" delivered to the Speaker of the House of Representatives
6 and the President of the Senate on December 11, 2000, under
7 pursuant to this section. The statewide minimum standards are
8 hereby adopted. The Office of Drug Control within the
9 Executive Office of the Governor shall maintain a sufficient
10 number of copies of the standards for use of the public, at
11 its offices, and shall provide copies to each affected seaport
12 upon request.
13 (b) The Department of Law Enforcement may exempt any
14 seaport identified in s. 311.09 from all or part of the
15 requirements of subsections (1)-(5) if the department
16 determines that the seaport is not active. The department
17 shall periodically review exempted seaports to determine if
18 there is maritime activity at the seaport. A change in status
19 from inactive to active may warrant removal of all or part of
20 any exemption provided by the department.
21 (2) Each seaport identified in s. 311.09 shall
22 maintain a security plan relating to the specific and
23 identifiable needs of the seaport which assures that the
24 seaport is in substantial compliance with the statewide
25 minimum standards established under pursuant to subsection
26 (1). Each plan adopted or revised under pursuant to this
27 subsection must be reviewed and approved by the Office of Drug
28 Control and the Department of Law Enforcement. All such
29 seaports shall allow unimpeded access by the Department of Law
30 Enforcement to the affected facilities for purposes of
31 inspections or other operations authorized by this section.
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1 Each seaport security plan may establish restricted access
2 areas within the seaport consistent with the requirements of
3 the statewide minimum standards. In these such cases, a
4 Uniform Port Access Credential Card, authorizing
5 restricted-area access, shall be required for any individual
6 working within or authorized to regularly enter a restricted
7 access area and the requirements in subsection (3) relating to
8 criminal history checks and employment restrictions shall be
9 applicable only to employees or other persons working within
10 or authorized to regularly enter a restricted access area.
11 Every seaport security plan shall set forth the conditions and
12 restrictions to be imposed upon others visiting the port or
13 any restricted access area sufficient to provide substantial
14 compliance with the statewide minimum standards.
15 (3)(a) A fingerprint-based criminal history check
16 shall be performed on any applicant for employment, every
17 current employee, and other persons as designated under
18 pursuant to the seaport security plan for each seaport. The
19 criminal history check shall be performed in connection with
20 employment within or other authorized regular access to a
21 restricted access area or the entire seaport if the seaport
22 security plan does not designate one or more restricted access
23 areas. With respect to employees or others with regular
24 access, the such checks shall be performed at least once every
25 5 years or at other more frequent intervals as provided by the
26 seaport security plan. Each individual subject to the
27 background criminal history check shall file a complete set of
28 fingerprints taken in a manner required by the Department of
29 Law Enforcement and the seaport security plan. Fingerprints
30 shall be submitted to the Department of Law Enforcement for
31 state processing and to the Federal Bureau of Investigation
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1 for federal processing. The results of each fingerprint-based
2 check shall be reported to the requesting seaport. The costs
3 of the checks, consistent with s. 943.053(3), shall be paid by
4 the seaport or other employing entity or by the person
5 checked.
6 (b) By January 1, 2002, each seaport security plan
7 shall identify criminal convictions or other criminal history
8 factors consistent with paragraph (e) (c) which shall
9 disqualify a person from either initial seaport employment or
10 new authorization for regular access to seaport property or to
11 a restricted access area. These Such factors shall be used to
12 disqualify all applicants for employment or others seeking
13 regular access to the seaport or restricted access area on or
14 after January 1, 2002, and may be used to disqualify all those
15 employed or authorized for regular access on that date. Each
16 seaport security plan may establish a procedure to appeal a
17 denial of employment or access based upon procedural
18 inaccuracies or discrepancies regarding criminal history
19 factors established pursuant to this paragraph. A seaport may
20 allow waivers on a temporary basis to meet special or
21 emergency needs of the seaport or its users. Policies,
22 procedures, and criteria for implementation of this subsection
23 shall be included in the seaport security plan. All waivers
24 granted pursuant to this paragraph must be reported to the
25 Department of Law Enforcement within 30 days of issuance.
26 (c) Each seaport security plan shall establish a
27 procedure that notifies an individual that he or she is
28 disqualified for employment within or regular access to a
29 seaport or restricted access area. The plan shall also include
30 a procedure by which the individual may appeal the decision of
31 the seaport. The procedures must be in substantial compliance
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1 with 49 C.F.R., Part 1572, and must include, but need not be
2 limited to, the following:
3 1. The seaport must notify the individual, in writing,
4 that he or she poses a security threat to the seaport and is
5 disqualified for employment in or access to the seaport. The
6 notification must include a statement that the seaport has
7 determined that the individual poses a security threat
8 warranting disqualification, the basis for the determination,
9 and information about the correction of records and appeal
10 procedures.
11 2. An individual may appeal a disqualification
12 determination only if the individual asserts that he or she
13 meets the qualifications set by the seaport for the position
14 for which he or she is applying. If the disqualification
15 determination is based on a conviction for a disqualifying
16 crime listed in paragraph (e), the individual may present
17 evidence that the underlying criminal record is incorrect, or
18 that the conviction was pardoned, expunged, or overturned on
19 appeal. An executive pardon, expungement, or overturned
20 conviction may nullify a disqualifying conviction if the
21 pardon, expungement, or overturned conviction does not impose
22 any restrictions on the individual.
23 3. An individual may initiate an appeal of a
24 disqualification determination by submitting a written request
25 for materials or a written reply to the seaport within 15 days
26 after receiving notification of the disqualification
27 determination. If the individual does not initiate an appeal
28 within that time, the decision of the seaport is final.
29 4. The individual may serve upon the seaport a written
30 request for copies of the materials upon which the
31 disqualification determination was based. If the
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1 disqualification determination was based on a state or Federal
2 Bureau of Investigation criminal history record that the
3 individual believes is erroneous, the individual may correct
4 the record and submit the corrections to the seaport. The
5 seaport must respond within 30 days after receiving the
6 individual's request for materials. The seaport must give the
7 individual a copy of the releasable materials upon which the
8 disqualification determination was based. The seaport may not
9 include any classified information as provided by federal law.
10 5. The individual may also serve on the seaport a
11 written reply to the disqualification determination stating
12 that the seaport made errors when it issued the
13 disqualification determination.
14 6. The seaport must respond to the individual's appeal
15 no later than 30 days after the seaport receives an
16 individual's request. If the seaport determines that the
17 individual does pose a security threat, the seaport shall give
18 written notice to the individual of its final decision that
19 the individual is disqualified for employment in or access to
20 the seaport. If, upon reconsideration, the seaport concludes
21 that the individual does not pose a security threat to the
22 seaport, the seaport must notify the individual in writing of
23 its decision. Thereafter, the seaport shall issue to the
24 individual the appropriate Uniform Port Access Credential
25 Card.
26 7. If the seaport determines that the individual does
27 pose a security threat, the seaport must include in its
28 written notice of disqualification that the seaport's decision
29 is final agency action subject to judicial review under s.
30 120.68.
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1 (d) A seaport may allow waivers on a temporary basis
2 to meet special or emergency needs of the seaport or its
3 users. Policies, procedures, and criteria for implementation
4 of this paragraph must be included in the seaport security
5 plan. The seaport must consider, when determining whether to
6 grant a waiver, if the disqualification is based on a
7 disqualifying criminal offense, the circumstances of the
8 disqualifying act or offense, whether restitution was made by
9 the individual, and other factors that indicate that the
10 individual does not otherwise pose a security threat
11 warranting disqualification for access to the seaport. The
12 seaport must send a written notice to the individual informing
13 the individual whether the seaport granted or denied the
14 request for a waiver. All waivers granted under this paragraph
15 must be reported to the Department of Law Enforcement within
16 30 days after issuance.
17 (e)(c) In addition to other requirements for
18 employment or access established by each seaport under
19 pursuant to its seaport security plan, each seaport security
20 plan shall provide that:
21 1. Any person who has within the past 7 years been
22 convicted, regardless of whether adjudication was withheld,
23 for a forcible felony as defined in s. 776.08; an act of
24 terrorism as defined in s. 775.30; planting of a hoax bomb as
25 provided in s. 790.165; any violation involving the
26 manufacture, possession, sale, delivery, display, use, or
27 attempted or threatened use of a weapon of mass destruction or
28 hoax weapon of mass destruction as provided in s. 790.166;
29 dealing in stolen property; any violation of s. 893.135; any
30 violation involving the sale, manufacturing, delivery, or
31 possession with intent to sell, manufacture, or deliver a
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1 controlled substance; burglary; robbery; any felony violation
2 of s. 812.014; any violation of s. 790.07; any crime an
3 element of which includes use or possession of a firearm; any
4 conviction for any similar offenses under the laws of another
5 jurisdiction; or conviction for conspiracy to commit any of
6 the listed offenses is shall not be qualified for initial
7 employment within or regular access to a seaport or restricted
8 access area; and
9 2. Any person who has at any time been convicted for
10 any of the listed offenses is shall not be qualified for
11 initial employment within or authorized regular access to a
12 seaport or restricted access area unless, after release from
13 incarceration and any supervision imposed as a sentence, the
14 person remained free from a subsequent conviction, regardless
15 of whether adjudication was withheld, for any of the listed
16 offenses for a period of 5 at least 7 years before prior to
17 the employment or access date under consideration.
18 (f)(d) By October 1 of each year, each seaport shall
19 report to the Department of Law Enforcement each determination
20 of denial of employment or access, and any determination to
21 authorize employment or access after an appeal of a denial and
22 any determination to issue a waiver made during the previous
23 12 months. The report shall include the identity of the
24 individual affected, the factors supporting the determination,
25 and any other material factors used in making the
26 determination.
27 (4)(a) Subject to the provisions of subsection (6),
28 each affected seaport shall begin to implement its security
29 plan developed under this section by July 1, 2001.
30 (b) The Office of Drug Control and the Department of
31 Law Enforcement may modify or waive any physical facility or
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1 other requirement contained in the statewide minimum standards
2 for seaport security upon a finding or other determination
3 that the purposes of the standards have been reasonably met or
4 exceeded by the seaport requesting the modification or waiver.
5 The Such modifications or waivers shall be noted in the annual
6 report submitted by the Department of Law Enforcement under
7 pursuant to this subsection.
8 (c) Beginning with the 2001-2002 fiscal year, the
9 Department of Law Enforcement, or any entity designated by the
10 department, shall conduct no less than one annual unannounced
11 inspection of each seaport listed in s. 311.09 to determine
12 whether the seaport is meeting the minimum standards
13 established under pursuant to this section, and to identify
14 seaport security changes or improvements necessary or
15 otherwise recommended. The Department of Law Enforcement, or
16 any entity designated by the department, may conduct
17 additional announced or unannounced inspections or operations
18 within or affecting any affected seaport to test compliance
19 with, or the effectiveness of, security plans and operations
20 at each seaport, to determine compliance with physical
21 facility requirements and standards, or to assist the
22 department in identifying changes or improvements necessary to
23 bring a seaport into compliance with the statewide minimum
24 security standards.
25 (d) By December 31, 2001, and annually thereafter, the
26 Department of Law Enforcement, in consultation with the Office
27 of Drug Control, shall complete a report indicating the
28 observations and findings of all inspections or operations
29 conducted during the year and any recommendations developed by
30 reason of these such inspections. A copy of the report shall
31 be provided to the Governor, the President of the Senate, the
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1 Speaker of the House of Representatives, and the chief
2 administrator of each seaport inspected. The report shall
3 include responses from the chief administrator of any seaport
4 indicating what actions, if any, have been taken or are
5 planned to be taken in response to the recommendations,
6 observations, and findings reported by the department.
7 (e) In making security project or other funding
8 decisions applicable to each seaport listed in s. 311.09, the
9 Legislature may consider as authoritative the annual report of
10 the Department of Law Enforcement required by this section,
11 especially regarding each seaport's degree of substantial
12 compliance with the statewide minimum security standards
13 established by this section.
14 (5) Nothing in This section does not prevent shall be
15 construed as preventing any seaport from implementing security
16 measures that are more stringent, greater than, or
17 supplemental to the statewide minimum standards established by
18 this section except that, for purposes of employment and
19 access, each seaport shall adhere to the requirements provided
20 in paragraph (3)(e) (3)(c) and may shall not exceed statewide
21 minimum requirements.
22 (6) When funds are appropriated for seaport security,
23 the Office of Drug Control and the Florida Seaport
24 Transportation and Economic Development Council shall mutually
25 determine the allocation of these such funds for security
26 project needs identified in the approved seaport security
27 plans required by this section. Any seaport that receives
28 state funds for security projects must enter into a joint
29 participation agreement with the appropriate state entity and
30 must use the seaport security plan developed under pursuant to
31 this section as the basis for the agreement. If funds are made
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1 available over more than one fiscal year, the such agreement
2 must reflect the entire scope of the project approved in the
3 security plan and, as practicable, allow for reimbursement for
4 authorized projects over more than 1 year. The joint
5 participation agreement may include specific timeframes for
6 completion of a security project and the applicable funding
7 reimbursement dates. The joint participation agreement may
8 also require a contractual penalty, not to exceed $1,000 per
9 day, to be imposed for failure to meet project completion
10 dates provided state funding is available. Any such penalty
11 shall be deposited into the State Transportation Trust Fund to
12 be used for seaport security operations and capital
13 improvements.
14 Section 2. Section 311.125, Florida Statutes, is
15 amended to read:
16 311.125 Uniform Port Access Credential System.--
17 (1) By July 1, 2004, each seaport identified in s.
18 311.09 and subject to the statewide minimum seaport security
19 standards set forth in s. 311.12 shall be required to use a
20 Uniform Port Access Credential Card that is to be used
21 utilized in the operation of the state Uniform Port Access
22 Credential System as required herein. All Uniform Port Access
23 Credential Cards shall be issued by the Department of Highway
24 Safety and Motor Vehicles to the designated port authority, or
25 recognized governing board, of the requesting seaport for
26 distribution to the credential applicant.
27 (2)(a) The Department of Highway Safety and Motor
28 Vehicles, in consultation with the Department of Law
29 Enforcement, the Florida Seaport Transportation and Economic
30 Development Council, the Florida Trucking Association, and the
31 United States Transportation Security Administration shall
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1 develop a Uniform Port Access Credential System for use in
2 onsite verification of access authority for all persons on a
3 seaport as defined in s. 311.12(2), using utilizing the
4 Uniform Port Access Credential Card as authorized herein. Each
5 seaport, in a manner consistent with the "Port Security
6 Standards Compliance Plan" delivered to the Speaker of the
7 House of Representatives and the President of the Senate on
8 December 11, 2000, under pursuant to s. 311.12, and this
9 section, is responsible for granting, restricting, or
10 modifying access authority provided to each Uniform Port
11 Access Credential Card holder and promptly communicating the
12 levels of access or changes in the level of access to the
13 department for its use in administering the Uniform Port
14 Access Credential System. Each seaport is responsible for the
15 proper operation and maintenance of the Uniform Port Access
16 Credential Card reader and access verification utilizing the
17 Uniform Port Access Credential System at its location. The
18 Uniform Port Access Credential Card reader and Uniform Port
19 Access Credential System shall be used utilized by each
20 seaport to ensure compliance with the access restrictions
21 provided by s. 311.12.
22 (b) The system shall be designed to conform, as
23 closely as possible, with criteria established by the United
24 States Transportation Security Administration for a
25 Transportation Worker Identification Card, or similar
26 identification, as required by federal law. The system shall,
27 at a minimum, consist of:
28 1. A centralized, secure database for collecting and
29 maintaining fingerprints and other biometric means of
30 identity, and other information pertaining to personal
31
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1 identification of persons working on, or doing business at, a
2 Florida seaport as set forth in s. 311.12;
3 2. A methodology for receiving data from each port and
4 transmitting data to each port regarding access permissions;
5 3. Technology required for each gate and portal at
6 each seaport to be interactive with the Uniform Port Access
7 Credential System during all hours of operation;
8 4. The ability to identify persons who have violated
9 the access requirements of s. 311.12 and to deactivate the
10 access permissions of those persons; and
11 5. The ability to use utilize the Uniform Port Access
12 Credential Card in a manner consistent herein.
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14 The Such system shall be designed to ensure the credentialed
15 cardholders' privacy in a manner consistent with the state's
16 security requirements as provided herein.
17 (3) The Uniform Port Access Credential Card must
18 include at a minimum a digital fullface photograph, a digital
19 fingerprint, a multilayered security process, a
20 two-dimensional barcode with technology specifications that
21 will allow the unique biometric identifiers to reside in the
22 barcode, a unique identifying code or number, scanning
23 capability to compare required identifiers with information on
24 file in the central database, and background color
25 differentials for visual identification of access permissions.
26 (4) A fingerprint-based criminal history check shall
27 be performed on an applicant for a Uniform Port Access
28 Credential Card as provided in s. 311.12(3). Based upon review
29 of the criminal history check, each seaport may determine the
30 specific access permissions that will be granted to that
31 applicant. Upon receipt of a port authority "Notification of
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1 Access Permission" form and a verification of the criminal
2 history check, the department shall issue a Uniform Port
3 Access Credential Card to the port authority for distribution
4 to the applicant.
5 (5) A Uniform Port Access Credential Card is valid for
6 4 years following the date of issuance. Criminal history
7 checks may be performed on a random basis, but at least once a
8 year, during the period that the such credential card is
9 active to ensure that the credential holder complies with the
10 requirements for access to restricted areas provided in s.
11 311.12(3). Failure to complete any part of the required
12 credential application process, or failure to comply with the
13 criminal history clearances, shall be grounds for immediate
14 denial of access. In addition to access authority granted to
15 seaports, access authority may be restricted or revoked by the
16 Department of Highway Safety and Motor Vehicles or the
17 Department of Law Enforcement if the cardholder is suspected
18 of criminal violations that could affect the security of a
19 port or that otherwise render the cardholder ineligible for
20 port access, upon suspicion that the person in possession of
21 the card is using it, or attempting to use it, fraudulently,
22 or if restriction or revocation is done to assure the security
23 of any port or portion thereof.
24 (6) Corporations, persons, or other business entities
25 that employ persons to work on, or do business at, seaports
26 regulated in s. 311.12 shall notify those seaports for which
27 those employees have access permissions in the event of the
28 employee's termination, resignation, work-related
29 incapacitation, or death. Uniform Port Access Credential Card
30 accesses for persons not currently employed to perform a job
31 on a seaport shall be placed in an inactive status. Upon
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1 notification of a work status change, the port authority, or
2 recognized governing board, shall notify the department to
3 have the credential card placed in an inactive status.
4 Inactive status shall continue until the expiration of the
5 credential card or reactivation of the card by petition. The
6 former employee may have the credential card reactivated by
7 petitioning a seaport. The port authority, or recognized
8 governing board, of any seaport may determine that the
9 individual is employed by another appropriate entity or is
10 self-employed for purposes of performing work on the seaport.
11 Upon that determination, the port authority, or recognized
12 governing board, may request reactivation of credentialing
13 permissions. All these such cards may be restricted or revoked
14 as provided in subsection (5).
15 (7) Failure to report a change in work status, as
16 defined in this section, within 7 days after the action may
17 result in revocation of the business entity's access to the
18 seaport.
19 (8) Each person working on a seaport, as regulated in
20 s. 311.12(2), shall be issued a Uniform Port Access Credential
21 Card upon completion of the application process. Upon issuance
22 of the Uniform Port Access Credential Card, the cardholder is
23 eligible to enter a seaport in the system based on the level
24 of permission allowed by each respective seaport. A person
25 working in a restricted access area must meet the requirements
26 of s. 311.12(3). The Uniform Port Access Credential Card shall
27 be clearly marked for visual verification of the cardholder's
28 permission for access to a restricted area, under pursuant to
29 subsection (3). The card must contain biometric verification
30 of the cardholder's identity and proper access permissions.
31 Entrance to a restricted access area, as defined in s.
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1 311.12(2), shall require a machine check and fingerprint
2 verification of each person's Uniform Port Access Credential
3 Card for proper identification. Exit from any restricted
4 access area of a seaport shall require a machine check of the
5 credential card.
6 (9) Each person not producing a Uniform Port Access
7 Credential Card upon arrival at a restricted area of a seaport
8 must, at a minimum, stop at a check point, show valid
9 identification, and receive a visitor's pass in order to
10 proceed. The visitor's pass must be plainly displayed on the
11 person of the visitor or in the windshield of the vehicle and
12 designate what area of the seaport may be accessed by the
13 visitor. Failure to display the visitor's pass shall result in
14 revocation of a worker's permission to work on the seaport.
15 Public conveyances such as buses carrying passengers into
16 restricted access areas must be able to verify that all
17 passengers have legitimate business on the seaport. Procedures
18 for implementation of this process are the responsibility of
19 each seaport.
20 (10) The price of a Uniform Port Access Credential
21 Card shall be set by the department and shall reflect the cost
22 of the required criminal history checks, including the cost of
23 the initial state and federal fingerprint check and the annual
24 criminal history check and the cost of production and issuance
25 of the card by the department. A seaport may charge an
26 additional administrative fee to cover the costs of issuing
27 credentials to its employees and persons doing business at the
28 seaport.
29 (11) Each Uniform Port Access Credential Card remains
30 the property of the State of Florida. Any person possessing
31 such a card shall provide it to any law enforcement officer
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1 upon request. A law enforcement officer having reasonable
2 suspicion to believe that a card is possessed or is being used
3 in violation of law or the standards provided by this section,
4 or in any other manner that raises a concern about the safety
5 and security of a seaport, may seize the card. A cardholder
6 has no cause of action against any law enforcement officer who
7 seizes a Uniform Port Access Credential Card.
8 (12) Each seaport defined in s. 311.09 and required to
9 meet the minimum security standards set forth in s. 311.12
10 shall comply with technology improvement requirements for the
11 activation of the Uniform Port Access Credential System no
12 later than July 1, 2004. Equipment and technology requirements
13 for the system shall be specified by the department no later
14 than July 1, 2003. The system shall be implemented at the
15 earliest possible time that all seaports have active
16 technology in place, but no later than July 1, 2004.
17 (13) The "Port Security Standards Compliance Plan"
18 delivered to the Speaker of the House of Representatives and
19 the President of the Senate on December 11, 2000, under
20 pursuant to s. 311.12, shall be updated by the Department of
21 Law Enforcement to reflect the changes made by this act.
22 (14) This section shall be contingent on the receipt
23 of the federal grant funds necessary to implement the Uniform
24 Port Access Credential System.
25 Section 3. This act shall take effect July 1, 2004.
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1 *****************************************
2 SENATE SUMMARY
3 Requires each seaport security plan to have a procedure
that notifies an individual that he or she is
4 disqualified from employment within, or regular access
to, a seaport or a seaport's restricted access area.
5 Requires each plan to include a procedure by which the
individual may appeal the decision of the seaport.
6 Directs a seaport to have its procedures in substantial
compliance with federal regulations. Provides criteria
7 for seaports to consider for inclusion in procedures for
appeals and waivers from disqualification. Provides that
8 an individual remain free from subsequent convictions for
5 years before seeking employment in, or access to, a
9 seaport. Requires each seaport to report to the
Department of Law Enforcement by a specified date the
10 number of waivers from disqualification issued in the
previous 12 months.
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