The Florida Senate

311.12  Seaport security standards; inspections; compliance; appeals.--

(1)(a)  The statewide minimum standards for seaport security for each seaport identified in s. 311.09 shall be those based upon the Florida Seaport Security Assessment 2000 and set forth in the "Port Security Standards--Compliance Plan" delivered to the Speaker of the House of Representatives and the President of the Senate on December 11, 2000, pursuant to this section. The statewide minimum standards are hereby adopted. The Office of Drug Control within the Executive Office of the Governor shall maintain a sufficient number of copies of the standards for use of the public, at its offices, and shall provide copies to each affected seaport upon request.

(b)  The Department of Law Enforcement may exempt any seaport identified in s. 311.09 from all or part of the requirements of subsections (1)-(5) if the department determines that the seaport is not active. The department shall periodically review exempted seaports to determine if there is maritime activity at the seaport. A change in status from inactive to active may warrant removal of all or part of any exemption provided by the department.

(2)(a)  Each seaport identified in s. 311.09 shall maintain a security plan to provide for a secure seaport infrastructure specific to that seaport that shall promote the safety and security of the residents and visitors of the state and promote the flow of legitimate trade and travel. Commencing January 1, 2007, and every 5 years thereafter, the seaport director of each seaport, with the assistance of the Regional Domestic Security Task Force and in conjunction with the United States Coast Guard, shall revise the seaport security plan based on the results of continual, quarterly assessments by the seaport director of security risks and possible risks related to terrorist activities and relating to the specific and identifiable needs of the seaport which assures that the seaport is in substantial compliance with the statewide minimum standards established pursuant to subsection (1).

(b)  Each plan adopted or revised pursuant to this subsection shall be inspected for compliance and must be reviewed and approved by the Office of Drug Control and the Department of Law Enforcement based solely upon the standards as set forth under the most current Maritime Transportation Security Act, 33 C.F.R. s. 105.305, and the statewide minimum standards established pursuant to subsection (1). All such seaports shall allow unimpeded access by the Department of Law Enforcement to the affected facilities for purposes of plan or compliance inspections or other operations authorized by this section.

(c)  Each seaport security plan shall establish unrestricted and restricted access areas within the seaport consistent with the requirements of the statewide minimum standards and the provisions of s. 311.111 In such cases, a Uniform Port Access Credential Card, authorizing restricted-area access, shall be required for any individual working within or authorized to regularly enter a restricted access area and the requirements in subsection (3) relating to criminal history checks and employment restrictions shall be applicable only to employees or other persons working within or authorized to regularly enter a restricted access area. Every seaport security plan shall set forth the conditions and restrictions to be imposed upon others visiting the port or any restricted access area sufficient to provide substantial compliance with the statewide minimum standards. As determined by the seaport director's most current risk assessment report, any restricted access area with a potential human occupancy of 50 persons or more, any cruise terminal, or any business operation that is adjacent to an unrestricted public access area shall be protected from the most probable and creditable terrorist threat to human life by the use of the methods and principles contained within Federal Emergency Management Agency, Risk Management Series, "Reference Manual to Mitigate Potential Terrorist Attacks Against Buildings" (FEMA 426) and the Federal Emergency Management Agency, Risk Management Series, "Risk Assessment: A How-To Guide to Mitigate Potential Terrorist Attacks Against Buildings" (FEMA 452).

(d)  Within 30 days after the completion of the seaport's security plan inspection by the Department of Law Enforcement, it shall be delivered to the United States Coast Guard, the Regional Domestic Security Task Force, and the Domestic Security Oversight Council.

(e)  It is the intent of the Legislature that Florida's seaports adhere to security practices that are consistent with risks assigned to each seaport through the risk assessment process established in this subsection. Therefore, the Department of Law Enforcement shall inspect every seaport within the state to determine if all security measures adopted by the seaport are in compliance with the standards set forth in this chapter and shall submit the department's findings within 30 days after the inspection in a report to the Domestic Security Oversight Council and the United States Coast Guard for review, with requests to the Coast Guard for any necessary corrective action.

(f)  A seaport may request review by the Domestic Security Oversight Council of the findings in any Department of Law Enforcement inspection report as they relate to the requirements of this section. The Domestic Security Oversight Council may review only those findings under this section that are in specific dispute by the seaport. In reviewing the disputed findings, the council may concur in the findings of the department or the seaport or may recommend corrective action to the seaport. The department and the seaport shall give great weight to any findings and recommendations of the council.

(3)(a)  A fingerprint-based criminal history check shall be performed on any applicant for employment, every current employee, and other persons as designated pursuant to the seaport security plan for each seaport. The criminal history check shall be performed in connection with employment within or other authorized regular access to a restricted access area or the entire seaport if the seaport security plan does not designate one or more restricted access areas. With respect to employees or others with regular access, such checks shall be performed at least once every 5 years or at other more frequent intervals as provided by the seaport security plan. Each individual subject to the background criminal history check shall file a complete set of fingerprints taken in a manner required by the Department of Law Enforcement and the seaport security plan. Fingerprints shall be submitted to the Department of Law Enforcement for state processing and to the Federal Bureau of Investigation for federal processing. The results of each fingerprint-based check shall be reported to the requesting seaport. The costs of the checks, consistent with s. 943.053(3), shall be paid by the seaport or other employing entity or by the person checked.

(b)  By January 1, 2002, each seaport security plan shall identify criminal convictions or other criminal history factors consistent with paragraph (c) which shall disqualify a person from either initial seaport employment or new authorization for regular access to seaport property or to a restricted access area. Such factors shall be used to disqualify all applicants for employment or others seeking regular access to the seaport or restricted access area on or after January 1, 2002, and may be used to disqualify all those employed or authorized for regular access on that date. Each seaport security plan may establish a procedure to appeal a denial of employment or access based upon procedural inaccuracies or discrepancies regarding criminal history factors established pursuant to this paragraph. A seaport may allow waivers on a temporary basis to meet special or emergency needs of the seaport or its users. Policies, procedures, and criteria for implementation of this subsection shall be included in the seaport security plan. All waivers granted pursuant to this paragraph must be reported to the Department of Law Enforcement within 30 days of issuance.

(c)  In addition to other requirements for employment or access established by each seaport pursuant to its seaport security plan, each seaport security plan shall provide that:

1.  Any person who has within the past 7 years been convicted, regardless of whether adjudication was withheld, for a forcible felony as defined in s. 776.08; an act of terrorism as defined in s. 775.30; planting of a hoax bomb as provided in s. 790.165; any violation involving the manufacture, possession, sale, delivery, display, use, or attempted or threatened use of a weapon of mass destruction or hoax weapon of mass destruction as provided in s. 790.166; dealing in stolen property; any violation of s. 893.135; any violation involving the sale, manufacturing, delivery, or possession with intent to sell, manufacture, or deliver a controlled substance; burglary; robbery; any felony violation of s. 812.014; any violation of s. 790.07; any crime an element of which includes use or possession of a firearm; any conviction for any similar offenses under the laws of another jurisdiction; or conviction for conspiracy to commit any of the listed offenses shall not be qualified for initial employment within or regular access to a seaport or restricted access area; and

2.  Any person who has at any time been convicted for any of the listed offenses shall not be qualified for initial employment within or authorized regular access to a seaport or restricted access area unless, after release from incarceration and any supervision imposed as a sentence, the person remained free from a subsequent conviction, regardless of whether adjudication was withheld, for any of the listed offenses for a period of at least 7 years prior to the employment or access date under consideration.

(d)  By October 1 of each year, each seaport shall report to the Department of Law Enforcement each determination of denial of employment or access, and any determination to authorize employment or access after an appeal of a denial made during the previous 12 months. The report shall include the identity of the individual affected, the factors supporting the determination, and any other material factors used in making the determination.

(e)  The Department of Law Enforcement shall establish a waiver process to allow unescorted access to an individual who is found to be unqualified under paragraph (c) and denied employment by a seaport. The waiver consideration shall be based on the circumstances of any disqualifying act or offense, restitution made by the individual, and other factors from which it may be determined that the individual does not pose a risk of engaging in theft, drug trafficking, or terrorism within the public seaports regulated under this chapter or of harming any person. The waiver process shall begin when an individual who has been denied initial employment within or regular unescorted access to restricted areas of a public seaport as described in paragraph (c) submits an application for a waiver and notarized letter or affidavit from the individual's employer or union representative which states the mitigating reasons for initiating the waiver process. No later than 90 days after receipt of the application, the administrative staff of the Parole Commission shall conduct a factual review of the waiver application. Findings of fact shall be transmitted to the Department of Law Enforcement for review. The department shall make a copy of those findings available to the applicant before final disposition of the waiver request. The department shall make a final disposition of the waiver request based on the factual findings of the investigation by the Parole Commission. The department shall notify the waiver applicant and the port authority that originally denied employment to the applicant of the final disposition of the waiver. The review process under this paragraph is exempt from chapter 120.

(4)(a)  Subject to the provisions of subsection (6), each affected seaport shall begin to implement its security plan developed under this section by July 1, 2001.

(b)  The Office of Drug Control and the executive director of the Department of Law Enforcement may modify or waive any physical facility requirement or other requirement contained in the statewide minimum standards for seaport security upon a finding or other determination that the purposes of the standards have been reasonably met or exceeded by the seaport requesting the modification or waiver. Alternate means of compliance may not in any way diminish the safety or security of the seaport and shall be verified through an extensive risk analysis conducted by the port director. Waivers shall be submitted in writing with supporting documentation to the Office of Drug Control and the Department of Law Enforcement. The Office of Drug Control and the Department of Law Enforcement shall have 90 days to jointly grant the waiver or reject the waiver in whole or in part. Waivers not granted within 90 days or jointly rejected shall be submitted by the seaport to the Domestic Security Oversight Council for review. The Domestic Security Oversight Council shall recommend that the Office of Drug Control and the Department of Law Enforcement grant the waiver or reject the waiver in whole or in part. The Office of Drug Control and the Department of Law Enforcement shall give great weight to any recommendations of the Domestic Security Oversight Council. Waivers submitted for standards established under s. 311.122(3) shall not be granted for percentages below 10 percent. Such modifications or waivers shall be noted in the annual report submitted by the Department of Law Enforcement pursuant to this subsection.

(c)  Beginning with the 2001-2002 fiscal year, the Department of Law Enforcement, or any entity designated by the department, shall conduct no less than one annual unannounced inspection of each seaport listed in s. 311.09 to determine whether the seaport is meeting the minimum standards established pursuant to this section, and to identify seaport security changes or improvements necessary or otherwise recommended. The Department of Law Enforcement, or any entity designated by the department, may conduct additional announced or unannounced inspections or operations within or affecting any affected seaport to test compliance with, or the effectiveness of, security plans and operations at each seaport, to determine compliance with physical facility requirements and standards, or to assist the department in identifying changes or improvements necessary to bring a seaport into compliance with the statewide minimum security standards.

(d)  By December 31, 2001, and annually thereafter, the Department of Law Enforcement, in consultation with the Office of Drug Control, shall complete a report indicating the observations and findings of all inspections or operations conducted during the year and any recommendations developed by reason of such inspections. A copy of the report shall be provided to the Governor, the President of the Senate, the Speaker of the House of Representatives, and the chief administrator of each seaport inspected. The report shall include responses from the chief administrator of any seaport indicating what actions, if any, have been taken or are planned to be taken in response to the recommendations, observations, and findings reported by the department.

(e)  In making security project or other funding decisions applicable to each seaport listed in s. 311.09, the Legislature may consider as authoritative the annual report of the Department of Law Enforcement required by this section, especially regarding each seaport's degree of substantial compliance with the statewide minimum security standards established by this section. The Legislature shall review any seaport that is not in substantial compliance with the statewide minimum security standards by November 2005, as reported by the Department of Law Enforcement.

(f)  By December 31, 2004, the Legislature shall review the ongoing costs of operational security on seaports, the impacts of this section on those costs, mitigating factors that may reduce costs without reducing security, and methods by which seaports may implement operational security using a combination of sworn law enforcement officers and private security services.

(g)  Subject to the provisions of this chapter and appropriations made for seaport security, state funds may not be expended for operational security costs without certification of need for such expenditures by the Office of Ports Administrator within the Department of Law Enforcement.

(5)  Nothing in this section shall be construed as preventing any seaport from implementing security measures that are more stringent, greater than, or supplemental to the statewide minimum standards established by this section except that, for purposes of employment and access, each seaport shall adhere to the requirements provided in paragraph (3)(c) and shall not exceed statewide minimum requirements.

(6)  When funds are appropriated for seaport security, the Office of Drug Control and the Florida Seaport Transportation and Economic Development Council shall mutually determine the allocation of such funds for security project needs identified in the approved seaport security plans required by this section. Any seaport that receives state funds for security projects must enter into a joint participation agreement with the appropriate state entity and must use the seaport security plan developed pursuant to this section as the basis for the agreement. If funds are made available over more than one fiscal year, such agreement must reflect the entire scope of the project approved in the security plan and, as practicable, allow for reimbursement for authorized projects over more than 1 year. The joint participation agreement may include specific timeframes for completion of a security project and the applicable funding reimbursement dates. The joint participation agreement may also require a contractual penalty, not to exceed $1,000 per day, to be imposed for failure to meet project completion dates provided state funding is available. Any such penalty shall be deposited into the State Transportation Trust Fund to be used for seaport security operations and capital improvements.

(7)  Any person who has in his or her possession a concealed weapon, or who operates or has possession or control of a vehicle in or upon which a concealed weapon is placed or stored, while in a designated restricted area on seaport property commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083 This subsection does not apply to active-duty certified federal or state law enforcement personnel, or persons so designated by the seaport director in writing.

(8)(a)  The Seaport Security Standards Advisory Council is created under the Office of Drug Control. The council shall serve as an advisory council under s. 20.03(7).

(b)1.  The members of the Seaport Security Standards Advisory Council shall be appointed by the Governor and consist of the following:

a.  Two seaport directors.

b.  Two seaport security directors.

c.  One designee from the Department of Law Enforcement.

d.  One designee from the Office of Motor Carrier Compliance of the Department of Transportation.

e.  One designee from the Attorney General's Office.

f.  One designee from the Department of Agriculture and Consumer Services.

g.  One designee from the Office of Tourism, Trade, and Economic Development.

h.  One designee from the Office of Drug Control.

2.  In addition to the members designated in subparagraph 1., the council may invite a representative of the United States Coast Guard to attend and participate in council meetings as an ex officio, nonvoting member of the council.

(c)  Members of the council shall serve for terms of 4 years. A vacancy shall be filled by the original appointing authority for the balance of the unexpired term.

(d)  The Seaport Security Standards Advisory Council shall be chaired by a designee from the Office of Drug Control. The council shall meet upon the call of the chair and at least once every 5 years.

(e)  Commencing on January 15, 2007, and at least every 4 years thereafter, the Office of Drug Control shall convene the Seaport Security Standards Advisory Council to review the statewide minimum standards. The Seaport Security Standards Advisory Council shall review the statewide minimum standards for seaport security for applicability to and effectiveness in combating current narcotics and terrorism threats to Florida's seaports. All sources of information allowed by law shall be utilized in assessing the applicability and effectiveness of the standards.

(f)  Seaport Security Standards Advisory Council members shall serve without pay; however, per diem and travel allowances may be claimed for attendance of officially called meetings as provided by s. 112.061

(g)  The Seaport Security Standards Advisory Council shall consult with the appropriate area maritime security committees to assess possible impacts to commerce and trade contained in the council's nonclassified recommendations and findings.

(h)  Recommendations and findings of the council shall be transmitted to the Governor, the Speaker of the House of Representatives, and the President of the Senate.

History.--s. 1, ch. 2000-360; s. 1, ch. 2001-112; s. 1, ch. 2003-96; s. 1, ch. 2004-261; s. 6, ch. 2005-128; s. 2, ch. 2006-193.