DETERMINATION OF THE SECRETARY.

SEC. 309. DETERMINATION OF THE SECRETARY. Section 70105(c) of title 46, United States Code, is amended—(1) by redesignating paragraphs (3) and (4) as paragraphs (4) and (5), respectively; and(2) by inserting after paragraph (2) the following:“(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 120 STAT. 529 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.”.