Transportation Security
Actions Needed to Address Limitations in TSA's Transportation Worker Security Threat Assessments and Growing Workload Gao ID: GAO-12-60 December 8, 2011Within the Department of Homeland Security (DHS), the Transportation Security Administration (TSA) manages several credentialing programs, which include background checking (known as Security Threat Assessments) and issuing credentials to transportation workers requiring unescorted access to the nation's transportation facilities. The number of TSA programs and their potential for redundancy with state and local government programs has raised questions about these credentialing programs. In response to a mandate in the Coast Guard Authorization Act of 2010, GAO examined TSA credentialing programs to identify (1) the roles and responsibilities of federal and nonfederal government entities related to TSA's transportation worker credentialing programs and how they compare, and (2) any key challenges TSA faced in ensuring the effectiveness of its credentialing programs. GAO reviewed program documentation, such as program processes, and conducted structured interviews with selected airports, port authorities, and state agencies. GAO selected nonfederal government entities based on volume of passengers, truckers, and cargo.
Nonfederal government entities have varying roles and responsibilities under three TSA transportation worker credentialing programs we reviewed--the Transportation Worker Identification Credential program (TWIC) for maritime workers; the Hazardous Materials Endorsement program (HME) for truckers seeking a commercial drivers license endorsement to carry hazardous materials; and the Aviation Workers program for airport workers. TSA administers the TWIC credentialing process, with no role for maritime port facility operators outside of verifying issued credentials. Under HME, state licensing agencies issue endorsements based on whether TSA reports favorable background checking results. In contrast, under the Aviation Workers program, TSA and airports share responsibility for the vetting process for airport workers, with airports responsible for enrolling applicants, adjudicating criminal history results TSA provides, and issuing, and if necessary, revoking airport badges. Eleven of 17 selected maritime ports--including 4 of the top 10 largest ports--reported implementing additional credentialing requirements to those under TSA regulations, which generally included requirements for applicants to obtain and present local port identification--in addition to a TWIC--to gain unescorted access. At three of these ports, local agencies conducted additional criminal history checks. In addition, 4 of 6 selected state licensing agencies responsible for issuing commercial drivers licenses were conducting additional criminal history checks on HME applicants. Some programs included applicant fees which added to the costs already incurred by applicants in obtaining TSA credentials. However, port officials reported their programs provided additional benefits over TSA's programs. The state and local credentialing programs we reviewed complemented the existing credentialing programs administered by TSA. TSA faces challenges in ensuring it has the necessary information and appropriate staffing to effectively conduct Security Threat Assessments for applicants to its transportation worker credentialing programs. First, in general, the level of access that TSA credentialing programs receive to Department of Justice (DOJ) Federal Bureau of Investigation (FBI) criminal history records is the level of access accorded for noncriminal justice purposes (e.g., equal to that of a private company doing an employment check on a new applicant, according to TSA) which limits TSA in accessing certain criminal history data related to charges and convictions. While TSA is seeking criminal justice type access to FBI systems, the FBI reports that it is legally unable to provide this access. The FBI and TSA are collaborating on options, but have not identified the extent to which a potential security risk may exist under the current process, and the costs and benefits of pursuing alternatives to provide additional access. Second, TSA officials reported the agency was not reviewing some state-provided criminal history for HME applicants because TSA did not have a mechanism to efficiently capture the data in its case system. Identifying a solution may help TSA better identify HME applicants posing security threats. Third, the TSA Adjudication Center relies on contractors for adjudicating applicant cases, and contractor turnover has affected the agency's ability to meet its growing workload. Developing a workforce staffing plan that considers the costs and benefits of using contractors will help ensure that TSA meets its growing credentialing workload. GAO recommends that (1) TSA and the FBI conduct a joint risk assessment of TSA's access to criminal history records, (2) TSA assess costs and benefits of using state-provided criminal history information, and (3) TSA develop a workforce staffing plan to address its growing Adjudication Center workload. DHS and DOJ concurred with GAO's recommendations.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Stephen M. Lord Team: Government Accountability Office: Homeland Security and Justice Phone: (202) 512-4379GAO-12-60, Transportation Security: Actions Needed to Address Limitations in TSA's Transportation Worker Security Threat Assessments and Growing Workload
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United States Government Accountability Office:
GAO:
Report to Congressional Committees:
December 2011:
Transportation Security:
Actions Needed to Address Limitations in TSA's Transportation Worker
Security Threat Assessments and Growing Workload:
GAO-12-60:
GAO Highlights:
Highlights of GAO-12-60, a report to congressional committees.
Why GAO Did This Study:
Within the Department of Homeland Security (DHS), the Transportation
Security Administration (TSA) manages several credentialing programs,
which include background checking (known as Security Threat
Assessments) and issuing credentials to transportation workers
requiring unescorted access to the nation‘s transportation facilities.
The number of TSA programs and their potential for redundancy with
state and local government programs has raised questions about these
credentialing programs. In response to a mandate in the Coast Guard
Authorization Act of 2010, GAO examined TSA credentialing programs to
identify (1) the roles and responsibilities of federal and nonfederal
government entities related to TSA‘s transportation worker
credentialing programs and how they compare, and (2) any key
challenges TSA faced in ensuring the effectiveness of its
credentialing programs. GAO reviewed program documentation, such as
program processes, and conducted structured interviews with selected
airports, port authorities, and state agencies. GAO selected
nonfederal government entities based on volume of passengers,
truckers, and cargo.
What GAO Found:
Nonfederal government entities have varying roles and responsibilities
under three TSA transportation worker credentialing programs we
reviewed”the Transportation Worker Identification Credential program
(TWIC) for maritime workers; the Hazardous Materials Endorsement
program (HME) for truckers seeking a commercial drivers license
endorsement to carry hazardous materials; and the Aviation Workers
program for airport workers. TSA administers the TWIC credentialing
process, with no role for maritime port facility operators outside of
verifying issued credentials. Under HME, state licensing agencies
issue endorsements based on whether TSA reports favorable background
checking results. In contrast, under the Aviation Workers program, TSA
and airports share responsibility for the vetting process for airport
workers, with airports responsible for enrolling applicants,
adjudicating criminal history results TSA provides, and issuing, and
if necessary, revoking airport badges. Eleven of 17 selected maritime
ports”-including 4 of the top 10 largest ports-”reported implementing
additional credentialing requirements to those under TSA regulations,
which generally included requirements for applicants to obtain and
present local port identification”in addition to a TWIC”to gain
unescorted access. At three of these ports, local agencies conducted
additional criminal history checks. In addition, 4 of 6 selected state
licensing agencies responsible for issuing commercial drivers licenses
were conducting additional criminal history checks on HME applicants.
Some programs included applicant fees which added to the costs already
incurred by applicants in obtaining TSA credentials. However, port
officials reported their programs provided additional benefits over TSA‘
s programs. The state and local credentialing programs we reviewed
complemented the existing credentialing programs administered by TSA.
TSA faces challenges in ensuring it has the necessary information and
appropriate staffing to effectively conduct Security Threat
Assessments for applicants to its transportation worker credentialing
programs. First, in general, the level of access that TSA
credentialing programs receive to Department of Justice (DOJ) Federal
Bureau of Investigation (FBI) criminal history records is the level of
access accorded for noncriminal justice purposes (e.g., equal to that
of a private company doing an employment check on a new applicant,
according to TSA) which limits TSA in accessing certain criminal
history data related to charges and convictions. While TSA is seeking
criminal justice type access to FBI systems, the FBI reports that it
is legally unable to provide this access. The FBI and TSA are
collaborating on options, but have not identified the extent to which
a potential security risk may exist under the current process, and the
costs and benefits of pursuing alternatives to provide additional
access. Second, TSA officials reported the agency was not reviewing
some state-provided criminal history for HME applicants because TSA
did not have a mechanism to efficiently capture the data in its case
system. Identifying a solution may help TSA better identify HME
applicants posing security threats. Third, the TSA Adjudication Center
relies on contractors for adjudicating applicant cases, and contractor
turnover has affected the agency‘s ability to meet its growing
workload. Developing a workforce staffing plan that considers the
costs and benefits of using contractors will help ensure that TSA
meets its growing credentialing workload.
What GAO Recommends:
GAO recommends that (1) TSA and the FBI conduct a joint risk
assessment of TSA‘s access to criminal history records, (2) TSA assess
costs and benefits of using state-provided criminal history
information, and (3) TSA develop a workforce staffing plan to address
its growing Adjudication Center workload.
DHS and DOJ concurred with GAO‘s recommendations.
View [hyperlink, http://www.gao.gov/products/GAO-12-60] or key
components. For more information, contact Stephen M. Lord at (202) 512-
4379 or lords@gao.gov.
[End of section]
Contents:
Letter:
Background:
Stakeholder Roles and Responsibilities Vary under TSA Credentialing
Programs, and Nonfederal Entities Have Implemented Additional
Requirements:
TSA Faces Data and Staffing Challenges in Ensuring Effectiveness of
its Security Threat Assessments of Transportation Workers:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: TSA Credentialing Programs:
Appendix III: TSA TWIC, HME, and Aviation Workers Programs:
Legislative Background and Purpose:
Appendix IV: Criminal Offenses That May Disqualify Applicants from
Acquiring a TWIC or HME:
Appendix V: Criminal Offenses That Disqualify Applicants under the
Aviation Workers Program from Acquiring an Airport-Issued Access Badge:
Appendix VI: Comments from the Department of Homeland Security:
Appendix VII: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Selected Characteristics of the 11 Selected Maritime Ports
with State or Local Credentialing Programs:
Table 2: Four Selected States Conducting Criminal History Record
Checks on HME Applicants:
Table 3: TSA Credentialing Programs:
Table 4: Legislative Background and Purpose of TSA's TWIC, HME, and
Aviation Workers Programs:
Figures:
Figure 1: Comparison of TSA and Nonfederal Governing Entity Roles with
Respect to the TWIC, HME, and Aviation Workers Programs:
Figure 2: Average Monthly Program Enrollment and TTAC Adjudication
Center Caseload for Reviewing Applicants with Potentially
Disqualifying Information for TWIC, HME, and Aviation Workers
Programs--July 2010 through June 2011:
Abbreviations:
ATSA: Aviation and Transportation Security Act:
Compact Act: National Crime Prevention and Privacy Compact Act:
DHS: Department of Homeland Security:
DOJ: Department of Justice:
DOT: Department of Transportation:
FBI: Federal Bureau of Investigation:
HME: Hazardous Materials Endorsement:
MTSA: Maritime Transportation Security Act:
NCIC: National Crime Information Center:
SIDA: Security Identification Display Area:
TSA: Transportation Security Administration:
TTAC: Transportation Threat Assessment and Credentialing:
TWIC: Transportation Worker Identification Credential:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
December 8, 2011:
The Honorable John D. Rockefeller IV:
Chairman:
The Honorable Kay Bailey Hutchison:
Ranking Member:
Committee on Commerce, Science, and Transportation:
United States Senate:
The Honorable Peter T. King:
Chairman:
The Honorable Bennie G. Thompson:
Ranking Member:
Committee on Homeland Security:
House of Representatives:
Securing transportation systems and facilities requires balancing
security to address potential threats while facilitating the flow of
people and goods that are critical to the U.S. economy and
international commerce. Since 9/11, the Transportation Security
Administration (TSA) within the Department of Homeland Security (DHS)
has taken steps to ensure that transportation workers, particularly
those that transport hazardous materials or have unescorted access to
secure areas of federally regulated maritime or airport transportation
facilities are properly screened to ensure they do not pose a security
threat.[Footnote 1] These efforts are intended to reduce the
probability of a successful terrorist or other criminal attack on the
nation‘s transportation systems, which include approximately 360 ports
and more than 450 commercial airports.
TSA reported administering 17 transportation security related
credentialing programs covering a population of approximately 15
million transportation workers such as those accessing airports and
maritime ports, as well as truckers seeking a hazardous materials
endorsement to a commercial driver‘s license. These 17 TSA
credentialing programs include conducting applicant background checks”
known as Security Threat Assessments”which are TSA reviews of
applicant information and searches of government databases to
determine if the applicant has known ties to terrorism and meets
specified requirements such as those relating immigration status and
criminal history.[Footnote 2] In addition, pursuant to federal law and
corresponding regulations, TSA requires that airport and aircraft
operators ensure that individuals undergo a fingerprint-based criminal
history records check and terrorism and immigration checks, before
receiving identification credentials that enable them unescorted
access to SIDA or sterile areas of the airport.[Footnote 3] Most TSA
credentialing programs are administered internally with no equivalent
nonfederal government entity (namely states or port authorities)
responsibilities under federal regulations.[Footnote 4] However, for 3
of 17 TSA programs, nonfederal government entities have certain
responsibilities under federal statutes and corresponding regulations,
such as for enrolling applicants or issuing credentials to workers.
These 3 programs are as follows:
* TSA's Transportation Worker Identification Credential (TWIC)
Program: A program requiring TSA to complete a Security Threat
Assessment on individuals requiring unescorted access to secure or
restricted areas of maritime facilities regulated under the Maritime
Transportation Security Act (MTSA) of 2002[Footnote 5] and to issue a
TSA biometric credential to qualified individuals.[Footnote 6]
* TSA's Hazardous Materials Endorsement (HME) Threat Assessment
Program: A program requiring TSA to conduct a Security Threat
Assessment on truckers who apply for a Hazardous Materials Endorsement
to a state commercial driver's license.
* TSA's Aviation Workers Program: A program requiring TSA to complete
a Security Threat Assessment and airport operators to complete a
criminal history record check on individuals who apply for or are
issued a credential for unescorted access to secure areas in U.S.
domestic airports, including airport facility workers, retail
employees, and airline employees.
Federal statutes and corresponding regulations relating to the TWIC,
HME, and Aviation Workers programs generally do not preempt nonfederal
governing entities from implementing additional nonconflicting
requirements. As a result, the number of credentialing programs in
place by TSA, and the potential for their redundancy with nonfederal
governing entity programs, has raised questions as to whether
transportation workers may be subject to redundant background checks
with different standards and additional costs.
Section 817 of the Coast Guard Authorization Act of 2010[Footnote 7]
mandated that we review background checks and forms of identification
required under state and local transportation security programs and
assess whether these programs duplicate or conflict with federal
programs. The act also mandated that we make recommendations to the
House Committee on Homeland Security and the Senate Committee on
Commerce, Science, and Transportation on steps that can be taken to
reduce or eliminate the duplication with federal programs. To fulfill
this requirement, we addressed the following questions:
* What are the roles and responsibilities of federal and nonfederal
government entities related to certain TSA transportation worker
credentialing-related programs and how do selected nonfederal
governing entities' credentialing programs compare to TSA's programs?
* What challenges, if any, does TSA face in ensuring the effectiveness
of its credentialing-related programs?
To identify which DHS credentialing programs for transportation
workers have requirements for state and local governments, we analyzed
relevant federal laws, including pertinent sections, as amended, of
the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of
2001,[Footnote 8] the Aviation and Transportation Security Act,
[Footnote 9] and MTSA, plus relevant DHS regulations that set out
corresponding requirements for TSA and nonfederal governing entities
with respect to conducting background checks and issuing
identification to transportation workers. On the basis of this
information, we focused our analysis on comparing nonfederal
transportation worker credentialing programs with TSA's TWIC, HME, and
Aviation Workers programs. Only the TWIC, HME, and Aviation Workers
programs include nonfederal governing entity responsibilities with
respect to TSA programs.
To identify the roles and responsibilities of federal and nonfederal
government entities related to certain TSA transportation security
credentialing-related programs and how selected nonfederal governing
entities' credentialing programs compare to TSA's programs, we
examined TSA documentation on the TWIC Program, HME Program, and
Aviation Workers Program. We also interviewed officials at TSA, the
DHS Screening Coordination Office[Footnote 10], the Coast Guard, the
Federal Bureau of Investigation (FBI), and the Department of
Transportation (DOT) to discuss their role and nonfederal government
entity roles in TSA transportation worker credentialing programs. We
also interviewed officials from nine stakeholder organizations that
represent the broad spectrum of nonfederal governing entity interests
in TSA's programs, as well as officials from state and local governing
agencies at selected maritime ports, airports, and state agencies to
obtain their perspectives on TSA and nonfederal government roles and
responsibilities.[Footnote 11]
We collected information from maritime port authorities at 17 maritime
port locations--including the top 10 ports by container volume in
2010--plus 7 additional ports we identified as having credentialing
programs. We visited officials at five locations (Baltimore, Maryland;
Norfolk, Virginia; Miami and Port Everglades, Florida; and New York,
New York), based on whether a state or local port authority had in
place a credentialing program outside of TSA's TWIC program. We also
collected information from eight category X[Footnote 12] airports--
this included 4 of the top 6 airports by passenger boardings in 2009
plus four additional airports based on proximity to GAO offices.
[Footnote 13] We conducted site visits to three of these eight
airports (Seattle-Tacoma International Airport, Washington Dulles
International Airport, and Baltimore-Washington International
Airport). Further, we collected information on state requirements for
issuing hazardous material endorsements to commercial driver's
licenses from licensing agencies in six states, including the top five
states as ranked by commercial drivers license issuance based on DOT
data as of December 2010, plus one additional state that we identified
as having additional state requirements.[Footnote 14] To determine how
nonfederal governing entities' credentialing programs compare to TSA's
programs, we analyzed pertinent federal laws and regulation which
authorize the TWIC, HME, and Aviation Workers programs, such as MTSA
and the USA PATRIOT Act, as well as TSA policy documents for
implementing the programs, such as operational guidance and policies.
By reviewing these laws, regulations, and policies, we identified
requirements of TSA and select state and local governing agencies, as
well as applicant eligibility standards such as lists of disqualifying
criminal offenses and duration of time that agencies were required to
consider these disqualifying criminal offenses ("look back period").
We then compared these standards and practices with those implemented
under nonfederal governing agency (state or local) programs we
identified. While the information we obtained from selected nonfederal
governing entities cannot be generalized across all states and
localities, it provided us with a perspective on how state and local
government transportation worker programs compare with federal
programs and requirements.
To obtain information on challenges, if any, TSA faced in ensuring the
effectiveness of its credentialing-related programs, we reviewed our
reports, and analyzed pertinent laws and regulations related to TSA's
use of criminal history record information, as well as TSA program
documentation, including program training manuals, staffing
information, and other documents detailing program processes and
challenges TSA faced, for the TWIC, HME, and Aviation Workers
credentialing programs. We also reviewed TSA data on the number of
enrollments and adjudication caseload for TSA's TWIC, HME, and
Aviation Workers programs--covering the period of July 2010 through
June 2011. Through interviews with knowledgeable TSA officials we
determined that these data were sufficiently reliable for our
purposes. We interviewed headquarters officials from TSA's
Transportation Threat Assessment and Credentialing (TTAC) program
[Footnote 15], DHS' Screening Coordination Office, and the FBI's
Criminal Justice Information Services Division, which maintains the
FBI's national criminal history repository. Further, we reviewed cases
from selected nonfederal governing entities of applicants whom
entities had reported denying credentials, and the reasons they had
done so. Additionally, we interviewed nonfederal agency stakeholders,
including officials from two organizations representing state criminal
justice repository agencies--the National Crime Prevention and Privacy
Compact Council[Footnote 16] (Compact Council) and SEARCH.[Footnote
17] We then evaluated TSA credentialing program processes against
TSA's credentialing program mission needs and Standards for Internal
Control in the Federal Government[Footnote 18] The information we
obtained through our interviews with nonfederal government entities
and stakeholder organizations are not generalizable, but provided
valuable perspectives related to TSA's TWIC, HME, and Aviation Workers
programs. Appendix I contains a more detailed discussion of our
objectives, scope and methodology.
We conducted this performance audit from February through November
2011 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
Background:
TSA Transportation Worker Credentialing Programs:
TSA's credentialing programs are focused on identifying security
threats posed by those individuals seeking to obtain an endorsement,
credential, access and/or privilege (hereafter called a credential)
for unescorted access to secure or restricted areas of transportation
facilities at maritime ports and airports, or for transporting
hazardous materials. TSA's 17 transportation security credentialing
programs cover a population of approximately 15 million transportation
workers in the maritime, surface, and aviation transportation modes.
See appendix II for a table summarizing TSA credentialing programs.
Most of the TSA credentialing programs are administered internally to
TSA agencies with no equivalent nonfederal government entity
responsibilities under federal regulations. In this way, there would
not be potential for redundancy or duplication between DHS and
nonfederal governing entity functions. Only the TWIC, HME, and
Aviation Workers programs include nonfederal governing entity
responsibilities with respect to TSA programs. Appendix III summarizes
the legislative background and purpose of these three programs.
As of June 2011, TSA reports that, collectively, the TWIC, HME, and
Aviation Workers programs accounted for a population of approximately
4.4 million workers--about 30 percent of the population TSA has vetted
through its 17 credentialing-related programs. The criteria TSA uses
in its Security Threat Assessments for TWIC and HME applicants vary
from that of the Aviation Workers Program. For example, Security
Threat Assessment criteria are aligned under both the HME and TWIC
programs. These criteria include 24 disqualifying criminal offenses
categorized into 10 "permanent disqualifying criminal offenses" and 14
"interim disqualifying criminal offenses."[Footnote 19] Four of the
permanent disqualifying criminal offenses, such as an act of terrorism
and espionage, are not eligible for waiver.[Footnote 20] The other 20
disqualifying criminal offenses (6 permanent and 14 interim) are
eligible for waiver. Interim disqualifying criminal offenses are those
specified offenses for which an individual has either been convicted,
or found not guilty by reason of insanity during a 7-year period prior
to the application, or for which an individual was released from
incarceration during a 5-year period prior to the application. In
contrast, under the Aviation Workers Program, there are 28
disqualifying criminal offenses, but no permanent disqualifiers.
[Footnote 21] More specifically, disqualifying criminal offenses under
the Aviation Workers Program are those for which an individual has
been convicted, or found not guilty by reason of insanity during the
10 years prior to an application for airport identification. See
appendix IV for a description of these disqualifying criminal offenses
for the HME and TWIC programs and appendix V for these disqualifying
criminal offenses for the Aviation Workers Program.
TSA Credentialing-Related Processes:
TSA's TTAC is responsible for administering Security Threat
Assessments for transportation workers seeking to obtain a credential.
[Footnote 22] This includes ensuring only eligible individuals are
granted TSA-related credentials, such as a TWIC, or a TSA Security
Threat Assessment approval for a nonfederal governing entity to issue
an identification badge or endorsement, such as an HME on a Commercial
Driver's License. While TSA's transportation worker credentialing-
related programs include varying purposes, standards, or agency
responsibilities, they generally include some or all of following
process components:
* Enrollment--Applicants pay an enrollment fee and submit biographic
(name, address, etc.) and biometric information (photo and
fingerprints) to TSA or nonfederal governing entity.
* Background checking--Security Threat Assessment processes include
reviewing information to determine if applicants are disqualified to
possess a credential based on criminal offenses, immigration
eligibility issues, links to terrorism, or mental capacity, all
varying by program. Criminal history record checks, which are
fingerprint-based, require an adjudicator to review the applicant's
criminal history (referred to as a rap sheet) that occurred within a
designated time frame (or look-back period) and compare this
information against a set of disqualifying criminal offenses
identified in statute and corresponding regulations in order to make a
determination of eligibility. There are two levels of the Security
Threat Assessment:
- Initial automated vetting. The initial automated vetting process is
conducted to determine whether any derogatory information is
associated with the name and fingerprints submitted by an applicant
during the enrollment process. This check is to be conducted against
the FBI's criminal history records. These records contain information
from federal, state and local sources in the FBI's National Crime
Information Center (NCIC) database and the FBI's Integrated Automated
Fingerprint Identification System/Interstate Identification Index,
which maintain criminal records and related fingerprint submissions.
[Footnote 23] The FBI's criminal history records check is a negative
identification check, whereby the fingerprints are used to confirm
that the associated individual is not identified as having a criminal
record in the database. If an individual has a criminal record in the
database, the FBI provides a criminal history rap sheet to TSA for
adjudication. A check is also conducted against federal terrorist
identity information from the Terrorist Screening Database, including
the Selectee and No-Fly lists.[Footnote 24] To determine an
applicant's immigration/citizenship status and eligibility, TSA also
checks applicant information against the Systematic Alien Verification
for Entitlements system.[Footnote 25] If the applicant is a U.S.-born
citizen with no related derogatory information, the system can approve
the individual's application for a credential with no further review
of the applicant or human intervention.
- TSA's TTAC Adjudication Center Review. A second-level review is
conducted as part of an individual's background check if (1) the
applicant has self-identified themselves to be a non-U.S. citizen or
non-U.S. born citizen or national, or (2) the first-level review
uncovers any derogatory information, such as a criminal offense. As
such, not all applicants will be subjected to a second-level review.
The second-level review consists of staff at TSA's Adjudication Center
in Herndon, Virginia reviewing the applicant's enrollment file to
determine if derogatory information may be potentially disqualifying.
- Credential Issuance--involves the issuance of a physical card or
endorsement.
- Verification--refers to the responsibilities of the credential
holder as well as the responsibilities of those entities which have
regulatory responsibility for ensuring that only credentialed workers
can perform certain functions or access secure or restricted areas of
transportation facilities. This includes making a determination that
the credential presented is authentic (not fraudulently developed);
that the individual is the one to whom the document was issued (not an
impostor), and remains valid (not revoked or expired).
- Renewal--requires applicants to re-enroll, undergo a new Security
Threat Assessment, and obtain a new credential.
- Revocation--refers to the ability of the issuing entity to
physically and/or electronically revoke a credential. Authority for
revocation (such as TSA or a state or local government entity) varies
pursuant to federal regulations for each credential program.
Regulations Concerning Federal Preemption of State and Local
Credentialing Requirements:
In general, TSA credentialing regulations related to programs with
state and local government involvement do not preempt state and local
governments from implementing their own background checking or badging
system requirements. For example, the TWIC final rule noted that TSA
has asserted preemption in some areas "where federal regulations have
historically dominated the field, such as merchant mariner
regulations" but not with respect to state "background checks or
badging systems in addition to the TWIC." According to the rule,
states may be the proprietor of ports or port facilities, and as the
proprietors they are is free to set standards determining who may
enter their facilities, as does any other proprietor. The TWIC rule
further provided that (1) states may have set standards for reasons
other than guarding against the threat of terrorism, such as to combat
drug smuggling or organized crime, and (2) as such, they are not
regulating in the same areas that DHS is regulating. In addition,
TSA's 2004 Interim Final Rule for the HME program recognized that the
state is the licensing body for drivers who are state residents, and
that the state has a clear mandate and interest in protecting the
residents and drivers within its borders from dangerous drivers. As a
result, TSA asserted that it did not wish to preclude additional state
measures applied to drivers by the state as long as such measures are
not inconsistent with the TSA rule. In this way, a state may conduct
background checks using information from the state's criminal history
repository and/or add additional disqualifying offenses.[Footnote 26]
However, according to the TSA Interim Rule, a state would be preempted
from applying a standard in which the federal interim disqualifying
offenses are no longer treated as disqualifying. Similarly, airports
have generally not been preempted from instituting additional
background checks beyond those required by federal regulation and
TSA's Aviation Workers Program, as part of their security plan and
credentialing program.
Stakeholder Roles and Responsibilities Vary under TSA Credentialing
Programs, and Nonfederal Entities Have Implemented Additional
Requirements:
Stakeholders Have Varying Roles and Responsibilities in Credentialing:
TSA conducts a Security Threat Assessment for those enrolled in its
TWIC, HME, and Aviation Workers programs, but state and local
governing entities' roles and responsibilities in these programs vary
by program. For example, TSA is responsible for implementing the
entire TWIC credentialing process including enrollment, background
checks and credential issuance, with no role for maritime port
facility operators--be they public port authority or privately
operated facilities--outside of verifying credentials that have been
issued. In contrast, under the Aviation Workers Program, TSA and
airports and aircraft operators each have certain responsibilities for
several elements of the credentialing process, including the criminal
history record check. For example, airports and aircraft operators are
responsible for ensuring the collection of application information,
enrolling applicants and transmitting the results to TSA for the
Security Threat Assessment. TSA's roles include TSA adjudicating the
immigration and terrorism checks, running automated FBI criminal
history records, and transmitting the results of the criminal history
record checks to the airports and aircraft operators, which have a
responsibility under TSA regulations for adjudicating the criminal
history to identify potentially disqualifying criminal offenses
specified under TSA regulations, and making a final determination of
eligibility.[Footnote 27] Moreover, airport and aircraft operators
issue their own local identification badges.
Figure 1 summarizes the credentialing processes for the TWIC, HME, and
Aviation Workers programs and the respective responsibilities of TSA,
nonfederal governing entities, and private entities under these TSA
programs.
Figure 1: Comparison of TSA and Nonfederal Governing Entity Roles with
Respect to the TWIC, HME, and Aviation Workers Programs:
[Refer to PDF for image: illustrated table]
Enrollment:
TWIG: Applicant provides biographic and biometric information at one
of 135 TSA enrollment centers;
HME: Applicant provides biographic and biometric information to
enrollment center or state. 12 states enroll and transmit applications
directly to TSA, while at 39 others (including Washington, DC),
applicants enroll at one of 220 TSA enrollment sites;
Aviation workers: Applicant provides biographic and
biometric information to airport operator. Airport operator submits
information to TSA.
Background check:
TWIG: TSA vets and adjudicates terrorist, immigration and criminal
history information and makes determination of eligibility to
applicant;
HME: TSA vets and adjudicates terrorist, immigration, and criminal
history information and provides determination of eligibility to state
licensing agency and applicant;
Aviation workers: TSA vets and adjudicates terrorist and immigration
information, and provides results of criminal history checks to
airport operator. Airport operator adjudicates criminal history and
makes determination of eligibility.
Issuance:
TWIG: TSA issues TWIC to applicant;
HME: State licensing agency issues HME to applicant;
Aviation workers: Airport issues access badge to employee.
Verification:
TWIG: Port facilities responsible for reviewing TWIC and verifying
business need to gain unescorted access to secure areas;
HME: Employer to verify applicant information for those positions
involving access to hazardous materials in accordance with
DOT required security plan. State authorities such as law enforcement
conduct roadside inspections;
Aviation workers: Airports responsible for implementing access control
system as part of TSA-approved security plan.
Renewal:
TWIG: Every 5 years. New enrollment, criminal history and immigration
checks, and new TWIC issued;
HME: Every 5 years. New enrollment, criminal history and immigration
checks, and HME issued. Some states may require more frequent renewal;
Aviation workers: Airports must reissue badge every 2 years. TSA does
not require further criminal history checks on applicants who are
continuously employed.
Revocation:
TWIG: TSA can revoke TWIC based on updated criminal history and
immigration information obtained at renewal or at any time based on
recurring terrorist screening checks;
HME: States can revoke HME for driving offenses, updated criminal
history or immigration information obtained at renewal, TSA's
recurrent terrorist screening checks, or for failing to pass knowledge
exam;
Aviation workers: Airport operators can revoke a badge if an
individual is no longer employed by airport employer, for security
violations of airport policy, or if airport is informed by TSA of
derogatory information relating to immigration status or during
recurring terrorist screening checks.
Source: GAO analysis of DHS, DOT, and state information. Art Explosion
(clipart).
[End of figure]
Nonfederal Governing Entities Have Additional Credentialing
Requirements Compared to TWIC and HME:
Maritime Port Programs:
Port authorities or state agencies at 11 of the 17 maritime ports we
contacted--including 4 of the top 10 largest maritime ports--had
implemented additional credentialing requirements to those of the TWIC
program.[Footnote 28] Of these 11 maritime ports, 10 required employer
sponsorship in addition to a valid TWIC, 3 required applicants to
undergo additional criminal history record checks, and 10 issued a
local port identification credential in addition to the TWIC which was
necessary for gaining unescorted access to secure areas of MTSA
regulated port facilities. The following highlights key elements of
these programs.
* Enrollment. In addition to collecting biometric and/or biographic
information from applicants, ports with additional programs required
applicants to have a valid TWIC and generally required employer
sponsorship as prerequisites for obtaining a local port credential. In
general, sponsorship included requirements for applicants to provide
documentation of port employment, such as a letter with an authorized
employer signature, which the governing entity verifies. For example,
at the port of Norfolk, the Virginia Port Authority requires all
facility operators to register with local law enforcement, and once
registered, these facilities are authorized to submit applications on
behalf of employees who require access. In general, the programs had
aligned their renewal requirements with those of the applicant's TWIC.
For example, if an applicant has 3 of the 5 years of eligibility
remaining on their TWIC, then the local credential would need to be
renewed after 3 years.
* Background Checks. At 3 of 11 ports that had additional
requirements, governing entities were conducting additional criminal
history record checks, while two others--the Port of Miami and Port
Everglades--had discontinued conducting additional criminal history
record checks in May 2011 in addition to the federal-level checks TSA
used as part of its Security Threat Assessment for TWIC.[Footnote 29]
First, whereas TSA's criminal history record check is conducted based
on searches of the FBI's national databases, the governing entities
for these three ports conduct both state and FBI criminal history
record checks.[Footnote 30] State repositories are considered more
comprehensive sources of state criminal history than that maintained
by FBI databases. Second, one port governing agency considered
additional disqualifying criminal offenses beyond those stipulated in
TSA regulations that may disqualify applicants from acquiring the
local port identification. For example, the Waterfront Commission of
New York Harbor was screening applicants against additional
disqualifying offenses, including theft and burglary, as did the two
Florida ports prior to the repeal of Florida's state criminal history
record check requirement for seaport employees.
* Issuance. We found the types of credential issued under local
programs had similar characteristics, with some ports reporting plans
to change or eliminate their physical credentials as part of a future
TWIC reader system deployment. For example, 10 of 11 ports with
additional credentialing programs had requirements in place for an
individual to obtain and present a second, locally issued port
identification for unescorted access to port facilities--in addition
to a TWIC. Of these, 9 ports reported using machine-readable
credentials as part of their access control systems.[Footnote 31] For
example, at the Port of Wilmington, North Carolina, the North Carolina
State Port Authority issues a local identification access card which
is a machine-readable card with a smart chip that contains some
personal information, such as a name and picture. In addition to
verifying that a cardholder's identification is valid for access to
secure or restricted areas of the port facility, some entities had
designed their systems to provide access control capabilities within
the port facility so that only those populations of workers authorized
to enter certain facilities within the port were able to do so. Unlike
TWICs that cannot be customized by port facilities, some port-specific
cards were color coded to signify areas which cardholders were
authorized to access.
* Six of 11 port authorities reported plans to revise or do away with
their credentialing programs once the Coast Guard issues its final
reader rule for the TWIC program and the ports deploy readers for
electronically verifying TWICs.[Footnote 32] For example, in 2011, the
South Carolina Port Authority reported it was planning to eliminate
its physical identification card for the Port of Charleston and adopt
a program whereby the port's central database ties worker enrollment
information with individuals' TWIC information. Under this system, the
port authority will upload permission to different access points which
will be read by card readers and will verify whether a TWIC is active.
[Footnote 33]
* Table 1 summarizes the key aspects of the 11 ports with additional
credentialing requirements.
Table 1: Selected Characteristics of the 11 Selected Maritime Ports
with State or Local Credentialing Programs:
Port with state or local government program[A,B]: Alabama State Port
Authority (Mobile);
State criminal history record check: yes;
Applicant fee: $25;
Local port credential issued: yes.
Port with state or local government program[A,B]: Port Everglades[C];
State criminal history record check: none (authorizing law repealed
May 2011);
Applicant fee: none[D];
Local port credential issued: yes.
Port with state or local government program[A,B]: Georgia State Port
Authority (Port of Savannah);
State criminal history record check: none;
Applicant fee: none;
Local port credential issued: yes.
Port with state or local government program[A,B]: Maryland Port
Administration (Port of Baltimore);
State criminal history record check: none;
Applicant fee: none;
Local port credential issued: yes.
Port with state or local government program[A,B]: Massachusetts Port
Authority;
(Port of Boston);
State criminal history record check: none;
Applicant fee: none;
Local port credential issued: yes.
Port with state or local government program[A,B]: Port of Miami[C];
State criminal history record check: none (authorizing law repealed
May 2011);
Applicant fee: none;
Local port credential issued: yes.
Port with state or local government program[A,B]: Port of New York/New
Jersey[E];
State criminal history record check: yes;
Applicant fee: $25 for truck driver credential, $66.30 to $94.20 for
longshoreman background check[F];
Local port credential issued: yes.
Port with state or local government program[A,B]: North Carolina State
Ports Authority (Port of Wilmington, Morehead City);
State criminal history record check: yes;
Applicant fee: $20;
Local port credential issued: yes.
Port with state or local government program[A,B]: Port of Portland
(Oregon);
State criminal history record check: none;
Applicant fee: none;
Local port credential issued: yes.
Port with state or local government program[A,B]: South Carolina State
Ports Authority (Charleston)[G];
State criminal history record check: none;
Applicant fee: none;
Local port credential issued: no.
Port with state or local government program[A,B]: Virginia Port
Authority (Norfolk, Newport News, Portsmouth);
State criminal history record check: none;
Applicant fee: none;
Local port credential issued: yes.
Source: GAO analysis of selected maritime port credentialing program
information.
[A] As reported between April and November 2011.
[B] Covered populations include longshoremen, truck drivers, and other
workers including contractors, vendors, shipping personnel, and any
persons regularly accessing restricted areas of the marine terminals.
[C] On May 24, 2011, Florida repealed, among other things, the
portions of state law 311.12, which had required the state to conduct
FBI and state criminal history record checks of all individuals
seeking unescorted access to restricted and secure areas within the
state's 12 active deepwater ports. These provisions of the Florida
state law had been in place since 2000. According to a Port Everglades
official, under this state program applicants were required to pay
fees of $50 that included the criminal history record check and an
administrative fee.
[D] Port Everglades does not charge a fee for TWIC holders to obtain a
port credential. Port Everglades also issues credentials (with a fee
of $25) to those individuals who work only in a supportive or
administrative position within port offices and do not access secure
or restricted areas of the port.
[E] Two separate governing agencies implement the background check and
identification programs for workers seeking access to facilities at
the Port of New York/New Jersey. The Waterfront Commission of New
Harbor, a bi-state government agency, conducts criminal history record
checks and issues an identification card to longshoremen seeking
access to work at port facilities in New York and New Jersey. The Port
Authority of New York/New Jersey does not conduct criminal history
record checks on workers seeking access. However, the port authority
requires truckers seeking access to register in its truck driver
identification system, known as Sealink, and to obtain machine-
readable identification cards.
[F] The Waterfront Commission of New York Harbor conducts state and
FBI criminal history record checks on all longshoremen seeking a
Waterfront Commission License, which is required to access Port of New
York and New Jersey facilities. The Waterfront Commission charges
varying fees to applicants depending upon whether they are New Jersey
or New York residents. This includes $44.30 in New Jersey and $72.20
in New York to cover the costs of the respective state. An additional
$22 is charged to cover the cost of an FBI national criminal history
check.
[G] Previously, at the Port of Charleston, the South Carolina Port
Authority charged an applicant a fee of $20 for enrollment and
identification costs. However, a port official reported that the port
had transitioned away from a physical card. Instead, the port had
installed TWIC readers and was tying the applicant enrollment
information to the TWIC card.
[End of table]
Benefits of Maritime Programs. Officials at ports with credentialing
programs reported their programs were providing additional security
benefits to those of the TWIC program. In particular, ports most
commonly cited the following security benefits of their local
credentialing programs:
* Mechanism for Establishing Business Need: Governing officials from
10 of 11 ports with additional programs reported that their local
enrollment and identification served as a mechanism for establishing a
valid business reason for an individual to access the secure or
restricted areas of the port facility, in accordance with TSA and
Coast Guard requirements. As discussed, under Coast Guard regulations,
the possession of a TWIC itself is not sufficient to gain unescorted
access to a secure area of a MTSA-regulated port facility--a facility
operator must also ensure the applicant is authorized to be in the
area.[Footnote 34] Because 10 of the 11 ports were requiring employer
sponsorship, ports were using their enrollment and identification
cards as a method for determining this business need. In this way,
these local credentials are serving a purpose not included under TSA's
TWIC enrollment process because--as we reported in May 2011--TSA's
TWIC enrollment process does not require employer sponsorship.
[Footnote 35] Instead, applicants attest to their need for a TWIC via
their signature on the application.
* Denying Credentials to Criminals: Governing officials from the five
ports with active or prior background check requirements cited
benefits their local programs provide over TWIC to control and monitor
access to individuals with criminal history. For example, maritime
port authorities seek to limit crime in their ports and thus officials
from two ports reported that they required additional scrutiny of all
TWIC holders who reported receiving their TWIC through the TWIC waiver
process. The TWIC waivers enabled applicants with certain interim
disqualifying criminal offenses, such as murder or unlawful weapons
possession, to obtain a TWIC.[Footnote 36] For example, the Port of
Miami, Port Everglades, and the Alabama State Port Authority provided
us with a sample of individuals who had either been denied local
credentials or had local credentials revoked.[Footnote 37] We provided
TSA 30 of these names to confirm that they had valid TWICs. In 11 of
the 30 cases, TSA adjudicators identified disqualifying criminal
offenses but the applicants were ultimately approved for a TWIC
through the redress process (waiver or appeals). Among those offenses
committed by these 11 individuals were murder, attempted murder,
carjacking and armed robbery, and unlawful possession of a firearm.
In addition, officials from three ports reported criminal history
record checks enabled them to target local risks facing their ports
which are not addressed under TSA regulations for the TWIC program.
For example, officials from the Port of Miami and the Waterfront
Commission of New York Harbor told us that, while they recognized the
threats posed by terrorism, crime was a major concern for their ports,
particularly narcotics trafficking and cargo theft.[Footnote 38]
Officials reported that by screening applicant criminal history
records against certain additional disqualifying offenses to those of
TWIC, such as theft, they were able to deny access to a population of
felons they perceived as longstanding criminal risks facing the port
who might be granted a TWIC. These governing entities reported denying
credentials to applicants who had been granted TWICs. For example,
between January 2009 and May 2011, the Port of Miami reported it had
denied credentials to 101 applicants, including 52 valid TWIC holders.
[Footnote 39] Port Everglades also reported it had denied credentials
to applicants, including those with valid TWICs. Among those denied,
was an individual convicted for conspiracy to possess with intent to
distribute cocaine in 2007, yet issued a TWIC in 2010. According to
these Port Everglades documents, this individual was arrested several
times for other offenses, such as unlawful possession of a firearm,
including a short-barrel shotgun and machine gun, and other narcotics
offenses.
Further, the three ports reported that they had mechanisms in place
for conducting recurring criminal history checks on an ongoing basis
through an automated "rap back" program.[Footnote 40] Specifically,
the Waterfront Commission of New York Harbor, which conducts
background checks for longshoremen at the Port of New York/New Jersey,
has a mechanism in place that allows it to receive automated
notifications on arrests and warrants. According to officials at the
Waterfront Commission of New York Harbor, these notifications have led
to the suspension and revocation of numerous longshoremen credentials.
Examples from local credentialing programs of those who had TWICs but
were denied by selected governing port authorities after local
disqualifying criminal offenses were committed include the following:
- An individual issued a TWIC in 2008, who was subsequently convicted
of robbery and grand theft in 2010. The individual's local credential
was revoked in December 2010. TSA identified this individual as having
a valid TWIC as of July 2011.
* Greater Access Control Than TWIC: At 9 of the 11 ports with
additional programs, officials reported that having a local credential
that could be verified by an existing access control system provided
them the capability to better verify the card presented, while more
quickly and effectively canceling access control to workers who
violate security procedures. For example, a Florida port reported it
revoked the local identification card of an individual because it had
been notified by state law enforcement of the arrest of the cardholder
for possession with intent to distribute cocaine. Officials noted that
their programs were particularly important in verifying TWIC
cardholders because the Coast Guard had yet to issue a final rule
laying out requirements for electronic verification of TWICs.
Costs of Maritime Programs. Some of the 11 ports with separate
credentialing programs imposed additional costs. The costs were
largely associated with administering the credentialing program. For
the ports that charged a fee, the applicants were required to pay
these fees in addition to their credentialing costs already incurred
in obtaining their TWIC.[Footnote 41] We found that the nonfederal
governing entities were charging applicant fees at 3 of 11 ports,
ranging from $20 to $94.20. For these ports, applicant fees were
generally covering costs for administering state and national FBI
criminal history record checks. We found the fees among these ports
differed based on the varying costs charged by governing entities for
conducting the criminal history checks and whether an FBI criminal
history record check was also required. For example, the Alabama State
Port Authority conducts state criminal history record checks, and
charges applicants a fee of $25 to cover the administrative costs for
these checks and its port identification credential. According to the
Alabama State Port Authority, applicant fees covered 70 percent of the
costs of its program, with the remainder funded by operating revenues.
[Footnote 42] Another agency, the Waterfront Commission--which
requires applicants to successfully undergo a criminal history record
check to obtain a license and credential authorizing their access to
Port of New York and New Jersey facilities--charges applicants fees of
up to $94.20 to cover the costs of both the FBI criminal history
record check and either a New York or New Jersey criminal history
records checks depending upon the applicant being a resident of New
York or New Jersey.
Labor and industry organizations have for several years raised
concerns over the costs imposed by federal, state and local port
requirements. For example, the International Longshoreman's
Association has expressed concerns that allowing states to impose
different requirements requiring multiple identification cards forces
workers to go through additional review processes, and paperwork, and
costs place an unfair burden on port workers, who would face redundant
clearance processes. Other organizations, including the American
Trucking Associations and the Owner-Operator Independent Drivers
Association, have also raised cost concerns, particularly in that
workers may be required to pay applicant fees to obtain multiple
federal credentials. For example, with respect to federal requirements
alone, generally a truck driver hauling hazardous materials is
required to obtain a HME ($89.25 for TSA-managed states and more
depending on state), and may also be required to obtain a TWIC
($105.25, if an applicant already has a HME) if he or she sought
access to a MTSA-regulated port facility. Depending on the port, a
local credentialing requirement may add an additional cost to the
worker. TSA is reportedly developing new regulations in addition to a
technical solution to help reduce redundancies in TSA's Security
Threat Assessment processes under its Transportation Infrastructure
Modernization program.[Footnote 43]
HME and Aviation Workers Credentialing Programs:
HME Issuance by State Licensing Agencies. Under federal law and
corresponding TSA regulations, states are prohibited from issuing a
commercial drivers license with a hazardous materials endorsement to
an individual unless TSA first conducts a Security Threat Assessment
and determines that the individual does not pose a security risk. We
found that four of the six states we contacted conducted additional
state criminal history record checks on HME applicants, in addition to
the national FBI criminal history record checks TSA conducted.
[Footnote 44] Of these four states, three--Florida, Texas, and
Maryland--were submitting the results to TSA for further review and
action. These three states were not adjudicating the results of these
criminal history checks, but sending the information to TSA as part of
its HME Security Threat Assessment.[Footnote 45] The other state, New
York, was the only selected state which conducted a separate vetting
program for HME applicants.[Footnote 46] For example, in accordance
with New York state law, New York state is required to conduct both a
state criminal history check and an FBI criminal history check on all
HME applicants. In addition, New York State's program includes
additional disqualifying criteria beyond the HME related disqualifying
criminal offenses considered under the TSA Security Threat Assessment.
For example, New York's consideration of additional disqualifying
criminal offenses not covered by TSA regulations includes larceny and
burglary. The four states conducting criminal history record checks
charged applicants additional fees as part of enrollment to cover the
cost of required state criminal history record checks--ranging from
$15 to $75. Table 2 summarizes the four selected states with
additional background checking activities and requirements.
Table 2: Four Selected States Conducting Criminal History Record
Checks on HME Applicants:
Selected state[A]: Florida;
Additional disqualifying offenses to TSA: none;
Different look-back period than TSA: no;
Additional applicant cost for state criminal check: $36.
Selected state[A]: Maryland;
Additional disqualifying offenses to TSA: none;
Different look-back period than TSA: no;
Additional applicant cost for state criminal check: $42.
Selected state[A]: New York;
Additional disqualifying offenses to TSA: yes;
Different look-back period than TSA: 10 years;
Additional applicant cost for state criminal check: $75.
Selected state[A]: Texas;
Additional disqualifying offenses to TSA: none;
Different look-back period than TSA: no;
Additional applicant cost for state criminal check: $15.
Source: GAO analysis of state information.
[A] As reported between March and September 2011.
[End of table]
Airports. The eight airports we contacted reported they did not
conduct additional background checks beyond those required by TSA--
which includes adjudicating the results of FBI criminal history record
checks TSA provided. Unlike with the TWIC and HME programs, local
authorities (airport operators and aircraft operators) are responsible
for adjudicating the results of TSA-provided criminal history
identified through automated FBI criminal history checks rap sheet, to
determine whether applicants had potentially disqualifying offenses.
In doing so, the airports may follow up with an applicant if the FBI
rap sheet TSA provided lacks a disposition of a criminal offense--
which is necessary for the airports to determine if the applicant has
potentially disqualifying criminal offenses. Although not required by
TSA all of these airports required employer sponsorship to verify the
employment of applicants and their need to access certain areas of the
airport. In addition, unlike the TWIC program where only TSA can
revoke a TWIC, under the Aviation Workers program airport authorities
are the entities that revoke an airport issued credential--not TSA.
[Footnote 47] For example, airports are to revoke a worker's
identification badge if TSA determines a badgeholder poses a threat
and may also do so if a worker violates airport security policy.
Unlike the TWIC and HME programs which require new fingerprint-based
criminal checks as part of the renewal process[Footnote 48], TSA
regulations for airport operators do not require additional criminal
history checks of workers with authorized access authority as long as
workers maintain continuous employment with the same issuing
authority. However, although not required by TSA regulation, some
airports we contacted reported conducting fingerprint-based criminal
history record checks on a random basis to identify potentially
disqualifying criminal offenses that the identification holder may
have committed since the initial Security Threat Assessment was
conducted.
In general, TSA credentialing-related regulations do not preempt state
and local background checks or credentialing programs. Both maritime
port authorities and state licensing agencies have implemented
credentialing programs with requirements beyond those of TSA's TWIC
and HME programs. While these programs have included additional costs
to applicants, they have also provided nonfederal governing entities
with additional tools for identifying potential threats and
restricting access not offered under TSA's credentialing programs.
Thus, these credentialing programs complement, rather than duplicate,
the TSA programs we reviewed.
TSA Faces Data and Staffing Challenges in Ensuring Effectiveness of
its Security Threat Assessments of Transportation Workers:
Additional Criminal History Record Information Could Strengthen TSA's
Security Threat Assessments:
Criminal history record checks are a key element of the Security
Threat Assessment process for TSA's credentialing programs, helping to
ensure that the agency detects those applicants with potentially
disqualifying criminal offenses. As discussed earlier, TSA's criminal
history record check compares an applicant's name and fingerprints
against criminal history record information provided by the FBI,
including from the FBI's National Crime Information Center and
Interstate Identification Index.[Footnote 49] However, according to
TSA, the access the agency currently has to criminal history
information for making its eligibility determinations for its
credentialing programs--including TWIC, HME, and Aviation Workers--has
limitations.
TSA reports that it has been difficult to effectively and efficiently
conduct Security Threat Assessment adjudication of criminal history
records due to the limited access it has as a noncriminal justice
purposes requestor of criminal history records--and that this
limitation had increased the risk that the agency was not detecting
potentially disqualifying criminal offenses. Specifically, the level
of access through which TSA receives criminal history record
information through the FBI's Interstate Identification Index is the
level of access accorded for noncriminal justice purposes. According
to TSA, this level of access only allows a limited view of criminal
history record information as opposed to a more expanded level of
access accorded criminal justice agencies. The terms "noncriminal
justice purposes" and "criminal justice" in this context, stem from
the National Crime Prevention and Privacy Compact Act of 1998 (Compact
Act).[Footnote 50] The Compact Act, enacted in 1998, in general,
organizes an electronic information-sharing system among the federal
government and the states to exchange criminal history records for
noncriminal justice purposes authorized by federal or state law. The
Compact Act also established a Compact Council with the authority to
promulgate rules and procedures governing the use of the Interstate
Identification Index system for noncriminal justice purposes, not to
conflict with FBI administration of the Interstate Identification
Index for criminal justice purposes.[Footnote 51] The Compact Act
contains, among others, the following definitions:
* Noncriminal justice purposes: The term noncriminal justice purposes
means "uses of criminal history records for purposes authorized by
Federal or state law other than purposes relating to criminal justice
activities, including employment suitability, licensing
determinations, immigration and naturalization matters, and national
security clearances."
* Criminal justice: The term criminal justice "includes activities
relating to the detection, apprehension, detention, pretrial release,
post-trial release, prosecution, adjudication, correctional
supervision, or rehabilitation of accused persons or criminal
offenders. The administration of criminal justice includes criminal
identification activities and the collection, storage, and
dissemination of criminal history records."[Footnote 52]
As an agency categorized with a "noncriminal justice purposes" level
of access to criminal history records information, TSA reports
receiving limited access to certain types of criminal history data.
For instance, when TSA sends the FBI its fingerprint submissions for
credentialing program applicants, the FBI responds to TSA with
criminal history record information including federal-level criminal
history information, as well as state-level criminal history records
obtained from any of the 15 states that participate in the FBI's
National Fingerprint File Program.[Footnote 53] As a noncriminal
justice agency, TSA reports that its access to state criminal history
information from other states is more limited than the level of access
available to criminal justice agencies which provides access to
criminal history record information from all 50 states plus the
District of Colombia. Thus, TSA reports that its visibility to
applicant criminal history records is often incomplete because the
provided information excludes details regarding dispositions,
sentencing, release dates, and probation or parole violations, among
others. TSA reported that this lack of visibility to additional
criminal history record information via the FBI's Interstate
Identification Index system hinders its ability to fulfill its
homeland security mission and conduct Security Threat Assessments with
more detailed and complete information for its credentialing programs.
[Footnote 54]
According to a 2006 Department of Justice report[Footnote 55] while
the FBI's Interstate Identification Index is comprehensive in its
coverage of nationwide arrest records for serious offenses, it is
still missing final disposition information for approximately 50
percent of its records.[Footnote 56] For example, the FBI reported
that information states submitted into its systems was not always
complete or current and that state repositories often reported having
more complete or current information than what was forwarded to and
maintained in FBI systems.[Footnote 57] As a result, state criminal
history repositories contain records, such as arrests and convictions,
not included--or indexed--as part of the FBI's databases. For this
reason, according to the 2006 Department of Justice report, checks of
state databases, in addition to an FBI check, are considered necessary
to get more comprehensive data.
According to TSA, being provided "noncriminal justice purposes" level
of access also affects its ability to run the FBI database checks
using the fingerprints collected at enrollment on a recurring basis to
identify potentially disqualifying criminal history of an active
credential holder. Under the Compact Act, subject fingerprints or
other approved forms of positive identification must be submitted with
all requests for criminal history record checks for "noncriminal
justice purposes."[Footnote 58] Thus, to conduct fingerprint-based
check on an ongoing basis for previously approved individuals, TSA
would have to submit prints and pay a fee to the FBI (funded by an
applicant fee) each time it wanted to have a criminal history record
check run.[Footnote 59] According to DHS Screening Coordination Office
officials, all of the agency's credentialing programs which include a
criminal history record check have weaknesses similar to what we
reported in our May 2011 report on the TWIC program. In that report,
we stated that TSA's controls for TWIC were not designed to determine
whether TWIC holders have committed disqualifying crimes at the
federal or state level after being granted a TWIC.[Footnote 60] In
particular, we noted that TSA conducts criminal history record checks
only during enrollment or a name-based check of TWIC holders against
federal wants and warrants on an ongoing basis, but it did not run the
broader FBI fingerprint based check using fingerprints collected at
enrollment on an ongoing basis.[Footnote 61]
TSA has noted that it does not fit neatly into a criminal justice or
noncriminal justice definition and asserts that its Security Threat
Assessments require both criminal justice and noncriminal justice
functions.[Footnote 62] Within this context, TSA is seeking an
expanded level of access to FBI's Interstate Identification Index
system data, beyond a "noncriminal justice purposes" level of access,
to a level of access similar to that accorded criminal justice
agencies. TSA's position, in general, is that the Compact Act
definitions of "criminal justice" and "noncriminal justice purposes"
do not mandate that TSA Security Threat Assessment functions only be
accorded a noncriminal justice purposes level of access. With respect
to the term "noncriminal justice purposes," it is TSA's position that
its statutorily mandated Security Threat Assessments are not the same
as employment or licensing background suitability checks listed in the
"noncriminal justice purposes" definition. TSA's position is that its
obligation to detect individuals with specific convictions to minimize
the threat to transportation systems require greater access to the
FBI's data.
The FBI's position, in general, is that TSA is not a criminal justice
agency, that the functions it performs are "noncriminal justice" in
nature, and that, as such, based upon a plain reading of federal law,
the FBI cannot legally provide TSA with criminal justice access to
criminal history records information. The FBI notes that the Compact
Act specifically defined "noncriminal justice purposes" as "uses of
criminal history records for purposes authorized by Federal or State
law other than purposes relating to criminal justice activities,
including employment suitability, licensing determinations,
immigration and naturalization matters, and national security
clearances." It is the FBI's position that TSA's requests for criminal
history record information fall within this "noncriminal justice
purposes" definition and, as such, the FBI is not authorized to
provide TSA with criminal justice access to criminal history record
information. FBI additionally notes that a broad interpretation of the
Compact Act outside of its plain meaning would violate the Compact Act
related laws of the 29 states that have signed the Compact as well as
the contractual agreement that the United States Government entered
into with these states.
TSA is collaborating with the FBI and the Compact Council to identify
possible options for obtaining greater access to criminal history
record information for its Security Threat Assessments. Since 2010,
TSA has made several presentations to members of the Compact Council
seeking a criminal justice-like access to FBI databases. While the FBI
and Compact Council have not agreed with TSA's position seeking a
level of access similar to that accorded criminal justice agencies,
the FBI has taken steps to provide TSA access to criminal history
related information. In particular, FBI reported pursuing technical
solutions that would expand the extent of state level criminal history
available to TSA--as well as to other federal agencies classified as
noncriminal justice agencies that may seek criminal history access
through FBI's systems. For example, as a longer-term technical
solution scheduled to be operational in 2014, FBI is planning to
enhance its Integrated Automated Fingerprint Identification System to
allow for automated noncriminal justice access to obtain additional
information from 36 states, including the 15 National Finger Print
File states and an additional 21 states.
The FBI, as an interim technical solution, reported plans to provide
federal agencies improved functionality similar to its longer-term
plan. The FBI reports that a pilot for this program was to begin in
October 2011 with TSA serving as the first participating federal
agency.[Footnote 63] According to an FBI study, these technical
solutions may provide TSA with additional criminal history information
for roughly 15 percent of its credentialing program applicant
population. However, TSA reported that while such an enhancement would
be an improvement from current processes, a substantial amount of
state's records will remain inaccessible.
According to Standards for Internal Control in the Federal Government,
effective internal controls provide for an assessment of the risks the
agency faces from both internal and external sources. Management must
decide upon internal control activities required to mitigate those
risks and achieve the objectives of efficient and effective
operations. As part of this, management should design and implement
internal controls that are informed by the identified risks the
program faces, the possible effect of those risks, control activities
required to mitigate those risks, and the costs and benefits of
mitigating those risks.[Footnote 64] TSA and the FBI have shared goals
in detecting potential terrorist and criminal threats posed to the
nation's transportation facilities. The agencies have continued a
dialogue on options, and the FBI is implementing technical solutions
which may improve the criminal history information available to TSA.
However, the two agencies have not jointly determined the extent to
which a potential security risk may exist with respect to the level of
access to criminal history records information that TSA currently
receives to complete Security Threat Assessments. Conducting such an
assessment which leverages ongoing coordination with the Compact
Council, would help address potential security risks that may exist
with respect to the level of access to criminal history record
information currently received by TSA for conducting Security Threat
Assessments, and could be used to help inform discussions about
possible alternatives to address any risks, and the costs and benefits
of pursuing each alternative.
TSA Could Better Leverage Available State Criminal History Data:
TSA could further strengthen its Security Threat Assessment process by
leveraging certain existing flows of state criminal history
information already provided by some nonfederal governing entities for
its HME program. As discussed earlier, four of the states we contacted
reported conducting their own state criminal history record checks for
applicants seeking an HME. Three of these four states reported sending
the results of their state criminal history checks directly to TSA for
consideration as part of its Security Threat Assessments--Florida,
Texas, and Maryland. However, TSA HME program officials reported that
the agency had generally not reviewed and considered the state-
provided criminal history information from all of these states.
TTAC officials acknowledged that the additional information they were
receiving from some states may help the agency identify potentially
disqualifying offenses among HME applicants. However, TSA reported
that it has not established a mechanism to efficiently capture the
information from all of the states that were directly providing the
information. For example, the TTAC Adjudication Center uses a web-
enabled system--known as its Screening Gateway--as its primary tool
for gathering, viewing, and synthesizing applicant case information
for each Security Threat Assessment. In this way, all vetting
information is compiled into a single case record for adjudicator
review. For example, TSA has in place a mechanism for Florida to
transmit applicant state criminal history results electronically to
TSA for adjudication, but it does not have such a mechanism to
electronically capture the information from other states providing the
information.[Footnote 65] TSA officials reported that reviewing the
information outside of its web-based case system would be time
consuming and result in delays in processing the Security Threat
Assessment adjudication caseload--which TSA officials noted was over
12,000 cases per month for the HME program alone.
According to TSA records, the agency has met with officials from
states that directly provided criminal history records information to
discuss the technical steps that would be necessary for them to send
TSA criminal history information in a manner that TSA may effectively
use. According TSA documentation, as of March 2010 TSA reported that
more research was necessary to identify technical steps necessary to
achieve a solution that would allow TSA to leverage the directly-
provided criminal history information.
TSA reported it has sought possible solutions to receive data directly
from other states in an automated solution. However, the agency has
faced obstacles because states have varying data systems and legal and
practical constraints requiring TSA to develop unique solutions for
obtaining data from a state. As a result, TSA reported it was pursuing
a common technical solution for obtaining state criminal information
through the agency's TTAC Infrastructure Modernization Program.
Nonetheless, TSA's schedule for the modernization program indicates
that it will not be completed until late 2015 and TSA has yet to
determine how the program would integrate existing streams of criminal
history provided by states. Moreover, TSA reported that future efforts
to obtain additional state criminal information may require TSA to pay
additional fees to states and the cost of these fees may need to be
funded by increasing applicant fees for TSA credentialing programs.
However, not all states are currently charging TSA additional fees for
the criminal history information they already provide. A senior
official with the one state which provided TSA criminal history record
information reported that his agency continued to do so because of
concerns that TSA was adjudicating HME applications without the
benefit of criminal history information, and had offered to make its
records available to TSA in a number of electronic formats.
Standards for Internal Control in the Federal Government highlights
the need for capturing information needed to meet program objectives
and assessing the risks agencies face. TSA has reported that it needs
access to all credible, reliable, and current information possible to
meet its mission requirements for its credentialing programs and has
been impeded in doing so because it lacks access to state criminal
history information. Reviewing these state-provided criminal history
records may help TSA address this challenge. TSA reported that more
research was required to determine a format for integrating the
information, and implementing a solution would carry costs for the
agency. Conducting and documenting an assessment of the risks
associated with not using the information--which considers existing
and potential technical and staffing requirements, as well as
analyzing the costs and benefits of establishing a format to integrate
the information--may help TSA mitigate its reported access limitations
and better meet its mission needs.
TTAC Adjudication Center Workforce Challenges:
The TTAC Adjudication Center has been challenged to meet its workload
requirements since it began conducting operations in 2005. According
to the TTAC Adjudication Center's current staffing plan, last released
in February 2011, insufficient federal staff has hampered the
Adjudication Center's ability to meet its workload requirements and
ensure necessary oversight of the credential decision-making process.
Among other things, the plan states that staffing limitations had left
the center unable to perform quality assurance and oversight
responsibilities, conduct necessary redress activities, and issue
"Initial Determinations of Threat Assessments" in a timely manner.
[Footnote 66] According to a senior TTAC Adjudication Center official,
the Adjudication Center has faced recurring challenges in meeting its
workload since it began operations--largely related to TSA's reliance
on contractor staff as its primary adjudicator workforce. As of July
2011, 72 percent (38 of 53) of Adjudication Center staff were
contractors.[Footnote 67] The challenge is that TSA has used three
different contractors since establishing the adjudication center in
2005, and on each occasion the turnovers have led to backlogs as the
TTAC adjudication center hired and trained new staff.[Footnote 68]
According to the official, federal staff must train each new set of
contractors, and it has taken about 8 to 10 months for new contractors
to become proficient so they may assume their full responsibilities.
Because the Adjudication Center relies on contract staff to adjudicate
the majority of its caseload, the contractor turnover has required the
federal staff to take on additional work during these periods.
According to the Adjudication Center official, federal staff have
needed to regularly work overtime over the past five years to meet
workload requirements. The official also noted that, whereas there has
been considerable turnover with respect to contractors, the
Adjudication Center has seen little turnover among its federal staff,
with only two federal adjudicators leaving the center since operations
began.
According to TSA data for the period of July 2010 through June 2011,
the TTAC Adjudication Center adjudicated an average of approximately
36,000 cases a month involving TWIC, HME, and Aviation Workers Program
applicants, including initial cases where automated background check
results included potentially derogatory information and redress cases,
such as applicant requests for a waiver or appeal to a prior
determination.[Footnote 69] Figure 2 shows the average monthly
enrollment and TTAC Adjudication Center caseload for the TWIC, HME,
and Aviation Workers programs--July 2010 through June 2011.
Figure 2: Average Monthly Program Enrollment and TTAC Adjudication
Center Caseload for Reviewing Applicants with Potentially
Disqualifying Information for TWIC, HME, and Aviation Workers
Programs--July 2010 through June 2011:
[Refer to PDF for image: vertical bar graph]
Aviation workers:
Average number of monthly program enrollments: 29,636;
Average monthly TTAC adjudication center caseload: 6,561.
HME:
Average number of monthly program enrollments: 24,287;
Average monthly TTAC adjudication center caseload: 14,110.
TWIC:
Average number of monthly program enrollments: 24,239;
Average monthly TTAC adjudication center caseload: 15,308.
Source: GAO analysis of TSA data.
[End of figure]
TSA reported that it chose to use contract adjudicators when the
Adjudication Center was created because it considered them to be the
most readily available workforce and the most effective way to augment
federal staff with skilled resources. We have previously reported that
to mitigate risks associated with using contractors, agencies have to
understand when, where, and how contractors should be used given the
risk of diminished institutional capacity, potentially greater costs,
and mission risks.[Footnote 70] Further, in July 2009, through its
Balanced Workforce Strategy, DHS instructed components to review
current contracts to determine if inherently governmental work was
included in the work requirements.[Footnote 71]
TSA awarded a new adjudication center contract in February 2010 that
runs through January 2015. This contract includes a 1-year base period
with four, 1-year options. Under this contract, based on the
performance of the contractor, TSA may select another contractor
within the next 5 years which could result in a change in its
adjudicator workforce--and pose risks to the Adjudication Center's
sustainability and performance in meeting mission requirements.
[Footnote 72] Furthermore, TSA anticipates expanding the Adjudication
Center caseload considerably for additional credentialing programs,
which may further exacerbate these challenges.[Footnote 73] Strategic
workforce planning includes aligning an organization's human capital
program with its current and emerging mission and developing long-term
strategies for acquiring, developing, and retaining staff to achieve
these goals.[Footnote 74] TSA reported that it initiated an assessment
in March 2011 to determine if adjudication functions are appropriate
to be performed by a contractor workforce, or if the work is
inherently governmental and if there would be a cost savings resulting
from conversion of the contract positions to government personnel.
However, in September 2011, TSA reported that it did not have a date
for when the study would be complete. Completing this assessment could
help TSA address the risk that the agency may be using nonfederal
employees to perform inherently governmental functions in its
Adjudication Center. Moreover, the Adjudication Center's most recent
workforce staffing plan does not address issues related to its growing
workload or the impact of the use of contractors for potentially
inherently governmental functions. Updating its staffing plan to
clarify how the Adjudication Center will effectively and efficiently
meet its current and emerging workload requirements, based in part on
the results of TSA's study, and developing timelines for doing so will
help ensure that TTAC can effectively meet its growing workload.
Conclusions:
The state and local credentialing programs we reviewed complement,
rather than duplicate, TSA's credentialing programs. In addition to
working with state and local entities, TSA also works with the FBI to
protect the nation's transportation systems from terrorist and
criminal threats. Both agencies rely on timely, relevant criminal
history data to do so. While TSA, the FBI, and Compact Council have
collaborated on the issue, TSA and the FBI have not completed a joint
analysis identifying whether a potential security risk may exist with
TSA's present level of access to FBI criminal records as a
"noncriminal justice purposes" requesting agency. Conducting an
assessment which identifies the pros and cons of potential solutions
to mitigate any potential risks could increase the rigor of the
Security Threat Assessment, benefit federal and state decision-makers
and better inform Congress about the potential weaknesses and their
implications. Although TSA has reported seeking additional access to
state-level criminal history, the agency has not leveraged some
existing information it already receives directly from states.
Conducting an assessment of the risks associated with not using the
information, as well as the costs and benefits, such as technical
barriers, to integrating the information into the current adjudication
process, may help TSA strengthen its process and better meet its
mission needs.
Since 2005, TSA's Adjudication Center has been responsible for
ensuring that the millions of TSA credentialing program applicants do
not pose a security risk to the United States, and these
responsibilities are expected to grow considerably as TSA assumes
additional responsibility for adjudicating Security Threat Assessments
for additional credentialing programs which may double or triple its
current workload. Thus, it is incumbent on TSA to complete its
reported study to determine whether the use of contractors for its
Adjudication Center is an inherently governmental function and if
there would be a cost savings resulting from conversion of the
contract positions to government personnel. Completing this assessment
could help TSA address the risk that the agency may be using
nonfederal employees to perform inherently governmental functions in
its Adjudication Center. Moreover, updating its workforce staffing
plan to define how the Adjudication Center will effectively and
efficiently meet its current and emerging workload requirements, based
in part on the results of TSA's study, and developing timelines for
doing so, will help ensure that TTAC can effectively meet its current
and growing workload.
Recommendations for Executive Action:
We recommend that the Secretary of Homeland Security direct the TSA
Administrator, and the Attorney General of the United States direct
the Director of the FBI, to jointly assess the extent to which a
security risk may exist with respect to the level of access to
criminal history records information currently received by TSA to
complete Security Threat Assessments, identify alternatives to address
any risks, and assess the costs and benefits of pursuing each
alternative.
We also recommend that the Secretary of Homeland Secretary direct the
TSA Administrator to take the following two actions:
* Conduct an assessment of the risks associated with not utilizing
some state-provided criminal history information, as well as an
analysis of the costs and benefits of integrating the information into
the current adjudication process.
* Develop a workforce staffing plan with timelines articulating how
the TTAC Adjudication Center will effectively and efficiently meet its
current and emerging workload requirements, and incorporate the
results of TSA's study examining the appropriateness and costs and
benefits of using contractors.
Agency Comments and Our Evaluation:
We provided a draft of this report to DHS and DOJ for their review and
comment. DHS, in written comments received November 30, 2011,
concurred with all three of the recommendations in the report directed
to DHS, and identified actions taken, planned, or under way to
implement the recommendations. In an email received November 29, 2011,
the DOJ audit liaison stated that DOJ concurred with the one
recommendation we directed to DOJ in the report. Written comments are
summarized below and official DHS comments are reproduced in appendix
VI. In addition, both DHS and DOJ provided written technical comments,
which we incorporated into the report, as appropriate.
In commenting on the draft report, DHS and DOJ described efforts the
departments have underway or planned to address our recommendations.
However, as discussed below, additional actions are needed to ensure
that our recommendations are fully implemented. Both DHS and DOJ
concurred with our first recommendation that the FBI and TSA jointly
assess the extent to which a security risk may exist with respect to
the level of access to criminal history records information currently
received by TSA to complete Security Threat Assessments, identify
alternatives to address any risks, and assess the costs and benefits
of pursuing each alternative. DOJ stated that the FBI remains
concerned that readers must understand that the level of access
afforded to TSA to FBI criminal history records information for
Transportation Worker Security Threat Assessments is one prescribed by
law and not merely an opinion of the FBI's. DHS stated that it
recognizes that there are criminal records at the state level which
TSA does not receive, and noted that its level of criminal history
information access is equal to that of a private company doing an
employment check on a new applicant. DHS stated that it has been
working with DOJ, the FBI and the states for several years to obtain
more comprehensive access to criminal history record information, and
cited plans for pilot programs with the FBI for accessing additional
state criminal history records information--including a pilot to
obtain information from over 20 additional states that respond to
noncriminal justice requests through the FBI's Interstate
Identification Index. DHS stated that as the pilots progress, TSA will
work with the FBI to identify the differences between the standard FBI
criminal history record information noncriminal justice results and
the additional state data. DHS noted that TSA will work with the FBI
to include these results in the overall assessment of risks regarding
TSA's current level of criminal history record information access.
DHS also concurred with our second recommendation for TSA to conduct
an assessment of the risks associated with not utilizing some state-
provided criminal history information. DHS stated that while TSA
concurred with the intent of the recommendation, it was no longer
necessary to conduct a risk or cost and benefit analysis because it
has identified a solution to incorporate state-provided criminal
history records information into its adjudication process. Since DHS
reported identifying this solution after we provided our draft report
to the agencies for comment, we will continue to work with TSA to
monitor progress on the proposed solution as it proceeds.
DHS concurred with our third recommendation that TSA develop a
workforce staffing plan with timelines articulating how the TTAC
Adjudication Center will effectively and efficiently meet its current
and emerging workload requirements, and incorporate the results of
TSA's study examining the appropriateness and costs and benefits of
using contractors. DHS stated that it is currently meeting its
Adjudication Center workload requirements and provided us with a copy
of the workforce staffing plan. TSA stated that it recognizes the
importance of appropriately balancing its federal and contractor
workforce and in 2010 began a review to ensure that the right
workforce balance is achieved. DHS stated that TSA is analyzing the
results of this review to achieve the best balance of federal and
contractor resources as part of the Department-wide Balanced Workforce
Strategy, and that the results would be available once finalized.
Lastly, DHS noted that TSA would continue to assess the staffing needs
of the Adjudication Center to implement emerging requirements based on
the results of the Balanced Workforce Strategy. However, these actions
do not fully address the intent of our recommendation. As we have
noted, the staffing plan TSA provided cited challenges the
Adjudication Center faced in meeting workload requirements--such as
staffing limitations leaving the center unable to perform quality
assurance and oversight responsibilities, conduct necessary redress
activities, and issue "Initial Determinations of Threat Assessments"
in a timely manner. Given the significant challenges cited, it is
unclear whether TSA is fully meeting current Adjudication Center
workload requirements. Since TSA reports it no longer faces challenges
in meeting its workload, it will be important for TSA to update the
February 2011 staffing plan TSA provided. Lastly, TSA reported that it
began a review to determine that the right workforce balance is
achieved. As discussed earlier, TSA reported this review is to
determine if adjudication functions are appropriate to be performed by
a contractor workforce, or if the work is inherently governmental and
if there would be a cost savings resulting from conversion of the
contract positions to government personnel. However, TSA has yet to
complete this assessment nor provide timelines for doing so.
Completing this study and incorporating the results of this assessment
into an updated staffing plan remains important for TSA to help ensure
it appropriately and effectively meets its Adjudication Center
workload.
We are sending copies of this report to the Secretary of Homeland
Security, the Assistant Secretary for the Transportation Security
Administration, the Commandant of the United States Coast Guard, the
Attorney General of the United States, the Director of the Federal
Bureau of Investigation, and appropriate congressional committees. In
addition, this report is available at no charge on the GAO Web site at
[hyperlink, http://www.gao.gov].
If you or your staff have any questions, please contact me at (202)
512-4379 or lords@gao.gov. Contact points for our Offices of
Congressional Relations and Public Affairs may be found on the last
page of this report. Key contributors to this report are listed in
appendix VII.
Signed by:
Stephen M. Lord:
Director:
Homeland Security and Justice Issues:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
To identify the roles and responsibilities of federal and nonfederal
government entities related to the Transportation Security
Administration's (TSA) transportation security credentialing-related
programs, we first identified those programs which place certain
responsibilities on state and local governments. To do this, we
analyzed relevant statutes, including pertinent provisions of the
Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of
2001,[Footnote 75] the Aviation and Transportation Security Act,
[Footnote 76] and the Maritime Transportation Security Act (MTSA)
[Footnote 77] of 2002, plus relevant Department of Homeland Security
(DHS) regulations that set out corresponding requirements for TSA and
nonfederal governing entities with respect to conducting background
checks and issuing identification to transportation workers.
We also reviewed documentation provided by TSA, such as program
summaries, which outlined the respective roles and responsibilities of
federal and nonfederal governing entities under 17 different
credentialing programs. On the basis of this information, we focused
our analysis on comparing nonfederal transportation worker
credentialing programs with three TSA credentialing programs--the
Transportation Worker Identification Credential Program, Hazardous
Materials Endorsement Program, and Aviation Workers Program--because
they placed certain regulatory responsibilities on nonfederal
governing entities. Of the 17 TSA credentialing programs, only the
Transportation Worker Identification Credential (TWIC), Hazardous
Materials Endorsement (HME) Threat Assessment, and Aviation Workers
programs include nonfederal governing entity responsibilities.
We further examined TSA documentation describing, among other things,
the roles and responsibilities of various entities for enrolling
applicants, conducting background checks, and issuing credentials. We
also interviewed headquarters and field officials at relevant
agencies, including DHS (TSA, Screening Coordination Office, Coast
Guard); Department of Justice Federal Bureau of Investigation (FBI)
and Department of Transportation (DOT). In addition, we interviewed
officials from nine stakeholder organizations that represent the broad
spectrum of nonfederal governing entity interests in TSA's programs,
such as the American Association of Port Authorities and the American
Trucking Association to help identify nonfederal government entity
credentialing programs and perspectives on TSA's credentialing
programs.[Footnote 78]
To determine how selected nonfederal governing entities' credentialing
programs compare to TSA's programs, we analyzed pertinent federal
laws, such as MTSA and the USA PATRIOT Act, and corresponding
regulations related to the TWIC, HME, and Aviation Workers programs,
as well as operational guidance and TSA policy documents for
implementing the programs. By reviewing these laws, regulations, and
policies, we identified requirements applicable to TSA and state and
local governing agencies, as well as applicant eligibility standards
such as lists of disqualifying criminal offenses and duration of time
that agencies were required to consider these disqualifying criminal
offenses ("look back period"). We then compared these standards and
practices with those of identified programs that placed certain
responsibilities upon nonfederal governing agency (state or local)
programs we identified.
Through structured questions (in-person, phone, and email), we
obtained information about credentialing programs and requirements in
place by state and local governing agencies at selected maritime
ports, airports, and state agencies. First, we collected information
from maritime port authorities or other responsible nonfederal
governing agencies at 17 maritime port locations--including the top 10
ports by container volume in 2010--plus 7 other ports we identified as
having programs in place through information we obtained from industry
groups, state agencies, and the U.S. Coast Guard. Collectively, the 17
maritime ports accounted for over 93 percent of U.S. waterborne
foreign container trade in 2010, according to the U.S. Maritime
Administration.[Footnote 79] We visited officials at 5 of these
locations based on whether a state or local port authority had in
place a credentialing program outside of TSA's TWIC program
(Baltimore, Maryland; Norfolk, Virginia; Miami and Port Everglades,
Florida; and New York, New York). Second, we collected information
from 8 category X[Footnote 80] airports including four of the top six
airports by passenger boardings in 2009 plus 4 additional airports
based on proximity to GAO locations.[Footnote 81] The eight airports
accounted for 23 percent of total U.S. domestic passenger boardings in
2009, according to the Federal Aviation Administration. We conducted
site visits to three of these airports (Seattle-Tacoma International
Airport, Washington Dulles International Airport, and Baltimore-
Washington International Airport). Third, with respect to HME
issuance, we collected information from six states, including the top
five states as ranked by commercial drivers license issuance based on
DOT data as of December 2010, plus one additional state that we
identified as having additional requirements.[Footnote 82] As of
December 2010, the six states we contacted accounted for approximately
one-third of the over 14 million commercial drivers licenses issued in
the United States, according to information from DOT.[Footnote 83] We
visited officials at two state licensing agencies (New York State and
Maryland). During our visits to maritime port facilities, state
commercial drivers license issuing agencies, and airports, we
interviewed officials, observed enrollment operations centers, and
also reviewed cases of individuals who had been denied issuance of a
state or local credential. Specifically, we obtained information from
selected nonfederal government entities which included background
check requirements as part of their credentialing programs. We
obtained case information from these entities detailing denial of
applicants' credentials. As part of this, we obtained case information
from three ports with respect to individuals the port reported denying
to or revoking local credentials from, because they had disqualifying
criminal offenses based upon state program criteria. We provided
information on 30 of these cases to TSA and then obtained case
information on these 30 individuals from TSA--including whether TSA
had identified these individuals as having potentially disqualifying
criminal histories, whether they had obtained their TWIC through a
waiver, and whether they had a valid TWIC as of July 1, 2011. While
the information we obtained from nonfederal governing entity programs
cannot be generalized across all states and localities, it provided us
with a perspective on how state and local government transportation
worker programs compare with federal programs and requirements.
To obtain information on challenges, if any, TSA faced in ensuring the
effectiveness of its credentialing-related programs, we reviewed our
prior reports related to the TWIC program and analyzed pertinent laws
and regulations, including the National Crime Prevention and Privacy
Compact Act of 1998.[Footnote 84] We then analyzed TSA and FBI program
documentation, including program training manuals, staffing plans, and
other documents detailing program processes and challenges TSA faced,
for the TWIC, HME, and Aviation Workers credentialing-related
programs. In addition, we reviewed and compared TSA data detailing the
number of enrollments and adjudication caseload for TSA's TWIC, HME,
and Aviation Workers programs--covering the period of July 2010
through June 2011. Through interviews with knowledgeable TSA officials
we determined that these data were sufficiently reliable for our
purposes. To further obtain information on TSA credentialing-related
practices and challenges, we interviewed headquarters officials from
TSA's Transportation Threat Assessment and Credentialing (TTAC)
program responsible for implementing the TWIC, HME, and Aviation
Workers programs, DHS's Screening Coordination Office, responsible for
coordinating credentialing programs across DHS; and the FBI's Criminal
Justice Information Services Division, which maintains the FBI's
national criminal history repository. We also visited the TTAC
Adjudication Center in Herndon, Virginia to interview officials
responsible for adjudicating TSA credentialing program applications
and observe operations. We then evaluated the processes against TSA's
credentialing program mission needs and Standards for Internal Control
in the Federal Government.[Footnote 85]
Additionally, we obtained the perspectives of nonfederal agency
stakeholders, including officials from two organizations representing
state criminal justice repository agencies--the National Crime
Prevention and Privacy Compact Council[Footnote 86] and SEARCH.
Collectively, these two organizations represent state criminal
repository agencies from 50 states and the District of Columbia. The
information we obtained through our interviews with nonfederal
government entities and stakeholder organizations are not
generalizable, but provided valuable perspectives related to TSA's
TWIC, HME, and Aviation Workers programs.
We conducted this performance audit from February through November
2011 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
[End of section]
Appendix II: TSA Credentialing Programs:
TSA implements 17 credentialing programs which include conducting
background checks--known as Security Threat Assessments--for a
reported population of over 15 million individuals, such as those
accessing airports, maritime ports, as well as for individuals seeking
a hazardous material endorsement to their commercial driver's license.
The following table identifies and describes these programs.
Table 3: TSA Credentialing Programs:
Program: Airspace Waiver Program;
Description: TSA conducts a Security Threat Assessment on passengers
and crew of flight operations into restricted U.S. airspace, flight
operations into the U.S. for carriers that do not hold a TSA-approved
security plan, and for all flight operations that transit US airspace
without a takeoff or landing in the US (over flights) that do not hold
a TSA-approved security plan.
Program: Alien Flight Student Program;
Description: TSA conducts a Security Threat Assessment on foreign
students seeking new or recurrent training at flight schools regulated
by the Federal Aviation Administration (FAA).
Program: Aviation Workers Program;
Description: Requires a Security Threat Assessment on individuals who
apply for, or are issued personnel identification media at U.S.
domestic airports, including airport facility workers, retail
employees, and airline employees. TSA adjudicates terrorist and
immigration checks, while airports adjudicate criminal history checks.
Program: Certified Cargo Screening Program;
Description: Participation in this program is currently voluntary. As
part of participation, TSA conducts a Security Threat Assessment on
individuals who screen and work at a Certified Cargo Screening
Facility.
Program: DCA Access Standard Security Program;
Description: TSA conducts a Security Threat Assessment on all flight
crewmembers (e.g. cockpit crew, flight attendants, cargo carrier
employees) and passengers on non-commercial aircraft (non-cargo)
flying into Ronald Reagan National Airport (DCA) from 1 of 22 domestic
gateway airports or out of DCA.
Program: FAA Airmen Certificate Program;
Description: TSA conducts a Security Threat Assessment on all FAA
Airmen Certificate holders and applicants for a certificate based on a
foreign license.
Program: Full All Cargo Security Program;
Description: TSA conducts a Security Threat Assessment on certain
individuals with unescorted access to air cargo for each operation
that is in an aircraft with a maximum certification takeoff weight of
more than 45,500 kg (100,309.3 pounds) and carrying cargo and
authorized persons and no passengers.
Program: Hazardous Materials Endorsement Threat Assessment Program;
Description: TSA conducts a Security Threat Assessment on drivers
wishing to obtain a hazardous materials endorsement on a state-issued
commercial driver's license.
Program: Indirect Air Carrier Program;
Description: TSA conducts a Security Threat Assessment on individuals
who perform screening, supervise screening, or have unescorted access
to air cargo bound for commercial airlines, as well as qualified
shippers and certain individuals in managerial or ownership roles of
an indirect air carrier.
Program: Maryland Three Program;
Description: TSA conducts a Security Threat Assessment on pilots who
operate aircraft and apply for privileges to fly to or from the three
General Aviation airports in the Washington, D.C. restricted flight
zones (Potomac Airport, Washington Executive/Hyde Field, and College
Park Airport).
Program: Merchant Mariner Credential;
Description: TSA and Coast Guard conduct a Security Threat Assessment
and safety and suitability check on individuals seeking employment
aboard U.S. merchant vessels greater than 100 Gross Register Tons
(Domestic Tonnage), except operators of uninspected passenger vessels.
Program: Private Charter Standard Security Program;
Description: TSA conducts a Security Threat Assessment on private
charter flight crewmembers operating aircraft with a maximum
certificated takeoff weight of 45,500kg (100,309 pounds) or more, or a
passenger-seating configuration of 61 or more, or whose passengers are
enplaned from or deplaned into a sterile area.
Program: SSI/Civil Litigant Program;
Description: TSA conducts a Security Threat Assessment on individuals
who seek access to Sensitive Security Information in the course of
civil litigation.
Program: Secure Flight;
Description: TSA conducts uniform prescreening of passenger
information against federal government watch lists for all domestic
and international passengers traveling on covered flights into, out
of, within, or over the United States.
Program: Master Crew Vetting Program;
Description: TSA conducts a Security Threat Assessment on flight
crewmembers entering, departing, or flying over U.S. airspace.
Program: Transportation Worker Identification Credential;
Description: TSA conducts a Security Threat Assessment on individuals
who require unescorted access to secure areas of regulated maritime
facilities, vessels, and all merchant mariners.
Program: Twelve - Five Standard Security Program;
Description: TSA conducts a Security Threat Assessment on flight
crewmembers operating aircraft with a maximum certificated takeoff
weight of 12,500 pounds or more.
Source: GAO analysis of TSA information.
[End of table]
[End of section]
Appendix III: TSA TWIC, HME, and Aviation Workers Programs:
Legislative Background and Purpose:
Following September 11 2001, legislation was enacted into law that was
designed to ensure that transportation workers, particularly those who
transport hazardous materials or require unescorted access to secure
areas of federally regulated maritime or airport transportation
facilities are properly vetted to identify whether they pose a
security threat. In response, TSA established the TWIC, HME, and
Aviation Workers programs. The following summarizes the legislative
background and purpose of these three programs.
Table 4: Legislative Background and Purpose of TSA's TWIC, HME, and
Aviation Workers Programs:
Program: TWIC;
Legislative Background and Purpose: In November 2001, the Aviation and
Transportation Security Act (ATSA)[A] was enacted, requiring TSA to,
among other things, work with airport operators to strengthen access
control points to secured areas and to consider using biometric access
control systems, or similar technologies, to verify the identity of
individuals who seek to enter a secure airport area. In response to
ATSA, TSA established the TWIC Program in December 2001. The Maritime
Transportation Security Act of 2002 (MTSA)b required the Secretary of
Homeland Security to prescribe regulations preventing individuals from
having unescorted access to secure areas of MTSA-regulated facilities
and vessels unless they possess a biometric transportation security
card and are authorized to be in such an area. MTSA further tasked the
Secretary with the responsibility to issue biometric transportation
security cards to eligible individuals unless the Secretary determines
that an applicant poses a security risk warranting denial of the card.
The TWIC Program is designed to implement these biometric maritime
security card requirements--with TSA responsible for conducting
Security Threat Assessments and MTSA-regulated port facilities--
including private facilities and public port authorities--responsible
for verifying that workers have a valid TWIC and a valid business case
to access their facility. TSA has issued and activated over 1.7
million TWICs to maritime port workers and denied 1,332 applications
as of June 2011.c.
Program: HME;
Legislative Background and Purpose: The USA PATRIOT Act of 2001[D]
prohibits states from issuing a motor vehicle license to individuals
seeking to transport hazardous materials in commerce unless a
determination has been made by the Secretary of Transportation that
the individual does not pose a security risk warranting denial of the
license. TSA developed regulations to implement this requirement,e and
TSA established the HME Program in order to conduct Security Threat
Assessments for truckers seeking to obtain, renew, or transfer a HME
on their state-issued commercial driver's license. The Federal Motor
Carrier Safety Administration within DOT oversees license issuance
policy and issued a companion rule indicating that state motor vehicle
agencies can not issue a HME until the applicant has first met TSA
vetting standards. State motor vehicle agencies are responsible for
ensuring that TSA has vetted these applicants before it issues a HME.
As of June 2011, TSA reported conducting Security Threat Assessments
on approximately 1.5 million HME applicants, and denying over 15,000
applications.
Program: Aviation Workers Program;
Legislative Background and Purpose: ATSA established TSA within DOT as
the federal agency responsible for civil aviation security
responsibilities.[F] Pursuant to ATSA, responsibility for the security
of civil aviation was transferred from the Federal Aviation
Administration to TSA, along with the Federal Aviation
Administration's existing aviation security programs, plans,
regulations, orders, and directives. Among other things, ATSA directs
TSA to improve the security of airport perimeters and the access
controls leading to secured areas, and take measures to reduce the
security risks posed by airport workers. TSA corresponding regulations
require that before airport and aircraft operators issue
identification media to workers seeking unescorted access authority to
sterile areas or a Security Identification Display Area (SIDA), they
must undergo a fingerprint-based criminal history record check. TSA
subsequently issued a Security Directive requiring that airport
operators may not issue identification media to individuals who work
in or have access to the Air Operations Area unless they undergo a
Security Threat Assessment including name based terrorism and
immigration status checks.[G] TSA reports that approximately 1.2
million workers currently hold airport badges.
Source: GAO analysis of DHS information:
Notes:
[A] Pub. L. No. 107-71, 115 Stat. 597, 610 (2001).
[B] Pub. L. No. 107-295, 116 Stat. 2064, 2073-74 (2002).
[C] The number of denials refers specifically to the number of final
disqualification letters issued by TSA. Some denial letters could be
repeat applicants. TSA also has waiver and appeals processes, so the
number of initial disqualification letters issued is greater--over
90,000, according to TSA.
[D] Pub.L. No.107-56, 115 Stat. 272, 396-97 (2001).
[E] 49 C.F.R. Part 1572.
[F] TSA was subsequently transferred from DOT to DHS in March 2003.
See Pub. L. No. 107-296, § 403(2), 116 Stat. 2135, 2178 (2002).
[G] SD 1542-04-08G.
[End of table]
[End of section]
Appendix IV: Criminal Offenses That May Disqualify Applicants from
Acquiring a TWIC or HME:
Listed below are criminal offenses that can prevent TWIC or HME
applicants from being issued a credential. Pursuant to TSA
implementing regulations, permanent disqualifying criminal offenses
are those offenses listed in 49 C.F.R. § 1572.103(a) for which an
applicant has a felony conviction, or has been found not guilty by
reason of insanity, in a civilian or military jurisdiction. Interim
disqualifying criminal offenses are those offenses listed in 49 C.F.R.
§ 1572.103(b) for which the applicant has either (1) a felony
conviction, or been found not guilty by reason of insanity, within a 7-
year period preceding the application, or (2) incarcerated for that
crime within a 5-year period preceding the application. Applicants
with certain permanent disqualifying criminal offenses and all interim
disqualifying criminal offenses may request a waiver of their
disqualification pursuant to 49 C.F.R. § 1515.7. In general, TSA may
issue such a waiver and grant a TWIC or HME if TSA determines that an
applicant does not pose a security threat based upon the Security
Threat Assessment.
Permanent disqualifying criminal offenses for which no waiver may be
granted.
1. Espionage, or conspiracy to commit espionage.
2. Sedition, or conspiracy to commit sedition.
3. Treason, or conspiracy to commit treason.
4. A federal crime of terrorism as defined in 18 U.S.C. 2332b(g), or
comparable State law, or conspiracy to commit such crime.
Permanent disqualifying criminal offenses for which a waiver may be
granted.
1. A crime involving a transportation security incident. A
transportation security incident is a security incident resulting in a
significant loss of life, environmental damage, transportation system
disruption, or economic disruption in a particular area, as defined in
46 U.S.C. § 70101. The term 'economic disruption' does not include a
work stoppage or other employee-related action not related to
terrorism and resulting from an employer-employee dispute.
2. Improper transportation of a hazardous material under 49 U.S.C. §
5124, or a State law that is comparable.
3. Unlawful possession, use, sale, distribution, manufacture,
purchase, receipt, transfer, shipping, transporting, import, export,
storage of, or dealing in an explosive or explosive device. An
explosive or explosive device includes, but is not limited to, an
explosive or explosive material as defined in 18 U.S.C. §§ 232(5),
841(c) through 841(f), and 844(j); and a destructive device, as
defined in 18 U.S.C. § 921(a)(4) and 26 U.S.C. § 5845(f).
4. Murder.
5. 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 government facility, a public
transportation system, or an infrastructure facility.
6. Violations of the Racketeer Influenced and Corrupt Organizations
Act, 18 U.S.C. § 1961, et seq., or a comparable State law, where one
of the predicate acts found by a jury or admitted by the defendant,
consists of one of the crimes listed in paragraph 49 C.F.R. § 1572.103
(a).
7. Attempt to commit the crimes in paragraphs listed under 49 C.F.R. §
1572.103 (a)(1) through (a)(4).
8. Conspiracy or attempt to commit the crimes in 49 C.F.R. § 1572.103
(a)(5) through (a)(10).
Interim disqualifying criminal offenses.
1. Unlawful possession, use, sale, manufacture, purchase,
distribution, receipt, transfer, shipping, transporting, delivery,
import, export of, or dealing in a firearm or other weapon. A firearm
or other weapon includes, but is not limited to, firearms as defined
in 18 U.S.C. § 921(a)(3) or 26 U.S.C. § 5845(a), or items contained on
the United States Munitions Import List at 27 C.F.R. § 447.21.
2. Extortion.
3. Dishonesty, fraud, or misrepresentation, including identity fraud
and money laundering where the money laundering is related to a crime
described in 49 C.F.R. § 1572.103 (a) or (b). Welfare fraud and
passing bad checks do not constitute dishonesty, fraud, or
misrepresentation for purposes of this paragraph.
4. Bribery.
5. Smuggling.
6. Immigration violations.
7. Distribution of, possession with intent to distribute, or
importation of a controlled substance.
8. Arson.
9. Kidnapping or hostage taking.
10. Rape or aggravated sexual abuse.
11. Assault with intent to kill.
12. Robbery.
13. Fraudulent entry into a seaport as described in 18 U.S.C. § 1036,
or a comparable State law.
14. Violations of the Racketeer Influenced and Corrupt Organizations
Act, 18 U.S.C. § 1961, et seq., or a comparable State law, other than
the violations listed in paragraph 49 C.F.R. § 1572.103 (a)(10).
15. Conspiracy or attempt to commit the interim disqualifying criminal
offenses.
[End of section]
Appendix V: Criminal Offenses That Disqualify Applicants under the
Aviation Workers Program from Acquiring an Airport-Issued Access Badge:
Listed below are the disqualifying criminal offenses that, in general,
prevent individuals under the Aviation Workers Program seeking
unescorted access to secure areas of an airport from being issued an
airport access credential. Pursuant to 49 C.F.R. §§1542.209, 1544.229,
1544.230, and Security Directive 1542-04-08G, an individual has a
disqualifying criminal offense if the individual has been convicted,
or found not guilty of by reason of insanity, of any of the crimes
listed below in any jurisdiction during the 10 years before the date
of the individual's application for unescorted access authority, or
while the individual has unescorted access authority. In contrast to
TWIC and HME, there is no waiver process for any of the disqualifying
criminal offenses. However, none of the crimes are permanently
disqualifying--disqualifying criminal offenses are those specified
offenses for which an individual has been convicted, or found not
guilty by reason of insanity during the 10 years before the date of
the individual's application. As such, we refer to them below as
interim disqualifying criminal offenses for which no waiver may be
granted.
Interim disqualifying criminal offenses for which no waiver may be
granted.
1. Forgery of certificates, false marking of aircraft, and other
aircraft registration violation; 49 U.S.C. § 46306.
2. Interference with air navigation; 49 U.S.C. § 46308.
3. Improper transportation of a hazardous material; 49 U.S.C. § 46312.
4. Aircraft piracy; 49 U.S.C. § 46502.
5. Interference with flight crew members or flight attendants; 49
U.S.C. § 46504.
6. Commission of certain crimes aboard aircraft in flight; 49 U.S.C. §
46506.
7. Carrying a weapon or explosive aboard aircraft; 49 U.S.C. § 46505.
8. Conveying false information and threats; 49 U.S.C. § 46507.
9. Aircraft piracy outside the special aircraft jurisdiction of the
United States; 49 U.S.C. § 46502(b).
10. Lighting violations involving transporting controlled substances;
49 U.S.C. § 46315.
11. Unlawful entry into an aircraft or airport area that serves air
carriers or foreign air carriers contrary to established security
requirements; 49 U.S.C. § 46314.
12. Destruction of an aircraft or aircraft facility; 18 U.S.C. § 32.
13. Murder.
14. Assault with intent to murder.
15. Espionage.
16. Sedition.
17. Kidnapping or hostage taking.
18. Treason.
19. Rape or aggravated sexual abuse.
20. Unlawful possession, use, sale, distribution, or manufacture of an
explosive or weapon.
21. Extortion.
22. Armed or felony unarmed robbery.
23. Distribution of, or intent to distribute, a controlled substance.
24. Felony arson.
25. Felony involving a threat.
26. Felony involving:
(i) Willful destruction of property;
(ii) Importation or manufacture of a controlled substance;
(iii) Burglary;
(iv) Theft;
(v) Dishonesty, fraud, or misrepresentation;
(vi) Possession or distribution of stolen property;
(vii) Aggravated assault;
(viii) Bribery; or:
(ix) Illegal possession of a controlled substance punishable by a
maximum term of imprisonment of more than 1 year.
27. Violence at international airports; 18 U.S.C. § 37.
28. Conspiracy or attempt to commit any of the criminal acts listed
above.
[End of section]
Appendix VI: Comments from the Department of Homeland Security:
U.S. Department of Homeland Security:
Washington, DC 20528:
November 30, 2011:
Mr. Stephen M. Lord:
Director, Homeland Security and Justice Issues:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Re: Draft Report GAO-12-60, "Transportation Security: Actions Needed to
Address Limitations in TSA's Transportation Worker Security Threat
Assessments and Growing Workload"
Dear Mr. Lord:
Thank you for the opportunity to review and comment on this draft
report. The U.S. Department of Homeland Security (DHS) appreciates the
U.S. Government Accountability Office's (GAO's) work in planning and
conducting its review and issuing this report.
The Transportation Security Administration (TSA) employs risk-based,
intelligence-driven operations to prevent terrorist attacks and to
reduce the vulnerability of the Nation's transportation system to
terrorism. TSA works collaboratively with industry partners to develop
and implement programs that promote commerce while enhancing security
and mitigating the risk to our Nation's transportation system. TSA
also works closely with other federal agencies and maximizes
participation from state, local, tribal, and private-sector
stakeholders to develop a common goal of securing all modes of
transportation, including aviation, maritime, and surface
transportation.
As part of its operations, TSA conducts security threat assessments
(STAs) to determine whether an applicant seeking access to critical
components of the Nation's transportation system poses or is suspected
of posing a threat to transportation or national security. An STA may
differ from mode-to-mode or program-to-program based on statutory,
policy, or resource requirements at the time of program
implementation. An STA includes any combination of fingerprint-based
criminal history records check, a lawful presence check, and checks
for ties to terrorism.
TSA's vetting responsibilities have grown significantly in recent
years. TSA has responded with the development and implementation of
efficient, reliable, and cost-effective terrorist-related screening
programs. TSA perpetually vets more than 14 million records per day,
adjudicates more than 12,000 cases per week, and responds to more than
400 redress requests per week.
GAO's report focused on three TSA STA programs. Specifically, the:
1. Aviation Workers Program, which covers individuals”including
airport facility workers, retail employees, and some airline employees”
who apply for, or are issued, personnel identification media at U.S.
domestic airports. The current active badged population is
approximately 2.1 million, with approximately 450,000 new applicants
per year.
2. Transportation Worker Identification Credential Program, which
covers individuals who must access secure areas of maritime
facilities, ports, and vessels, and merchant mariners. In the last 4
years, more than 2 million workers have enrolled in the TWIC program.
TSA has processed 50,000 appeals and waiver requests.
3. Hazardous Materials Endorsement Program, which covers drivers
seeking to obtain, renew, or transfer an HME on a state-issued
commercial driver's license. This endorsement is required to haul any
material that requires placarding under the U.S. Department of
Transportation hazardous materials regulations. Since the HME program
inception in 2005, more than 1.8 million individuals have applied for
a new or renewed HME STA.
DHS recognizes that there are criminal records at the state level,
which TSA does not receive.
There are two primary reasons for this. First, the states do not
always upload all their criminal records to the Federal Bureau of
Investigation (FBI) biometric criminal recordation system.
Second, states do not respond to criminal history record information
(CHRI) requests for "non-criminal justice purposes,"[Footnote 1] and
the states and U.S. Department of Justice (DOJ) currently view
TSA's transportation worker vetting programs as "non-criminal justice"
activities. In addition, because of this designation, TSA is unable to
request subsequent CHRI for recurrent vetting without a submission of
new fingerprints and fees from the individual. TSA's level of CHRI
access is equal to that of a private company doing an employment check
on a new applicant.
To provide the most robust vetting against criminal history records so
that TSA can effectively meet its statutory requirements to mitigate
risks to the security of the Nation's transportation systems, TSA
should have full access to CHRI. DHS, in coordination with TSA, will
continue to work with DOJ, the FBI, and the states to expand access to
the CHRI.
The draft report contained three recommendations with which DHS
concurs and has already initiated steps to implement. Specifically,
GAO recommended that:
Recommendation 1: The Secretary of Homeland Security and the Attorney
General of the United States jointly assess the extent to which a
security risk may exist with respect to the level of access to
criminal history records information currently received by TSA to
complete STAs, identify alternatives to address any risks, and assess
the costs and benefits of pursuing each alternative.
Response: Concur. DHS looks forward to working with DO! to assess the
extent of security risk, identify alternatives to address any risks,
and evaluate the costs and benefits of each alternative. As you know,
TSA has been working with DOJ, the FBI, and states for several years
to obtain more comprehensive access to CHRI. We have explored the
possibility that DOJ view TSA's transportation worker vetting as
"criminal justice" purposes[Footnote 2] (to which all 50 states and
the District of Columbia respond); designate TSA's transportation
vetting as a "national security" purpose (to which 45 states currently
respond); or use current statutory and regulatory authority[Footnote
3] to provide more access to criminal records.
As of mid-October 2011, TSA and the FBI implemented a pilot program to
use the FBI Interstate Identification Index (III) to obtain state CHRI
along with the FBI's CHRI in an automated fashion. TSA currently
receives automated data from 14 states, and the pilot program will
provide information from 22 additional states that respond to non-
criminal justice requests through the III. The solution involves
querying III for additional state-level information if the
FBI CHRI contains any information from the state for a given
individual. DHS and the FBI have also begun discussions regarding
another pilot project to address recurrent criminal history inquiries,
also known as "rapback." The FBI has proposed piloting an interim or
manual rapback solution with TSA for spring/summer 2012 before its
automated rapback capability (targeted for 2014-2015) occurs.
The III check and rapback pilot projects will be implemented for those
individuals who have criminal records in the FBI database when the STA
is first conducted. The projects will identify individuals who have a
previous criminal history with the FBI at the start of the STA process.
Thus, TSA will not receive records for: 1) individuals who have
criminal history records at the state level only; or 2) individuals
with no initial criminal records but who commit criminal offenses
after the STA is approved.
As the pilots progress, TSA will work with the FBI to identify the
differences between the standard FBI CHRI non-criminal justice results
and the additional state data. TSA will work with the FBI to include
these results in the overall assessment of risks regarding TSA's
current level of CHRI access.
Recommendation 2: The Secretary of Homeland Security direct the TSA
Administrator to conduct an assessment of the risks associated with
not utilizing some state-provided criminal history information, as
well as an analysis of the costs and benefits of integrating the
information into the current adjudication process.
Response: Concur. Although TSA does not believe it needs to conduct an
assessment of the risk or cost and benefit analysis, TSA concurs with
the intent of this recommendation and, as described in Recommendation
1, has already identified a solution that can be discussed.
Since 2005, TSA has conducted assessments to identify alternatives to
integrate state-level data. TSA worked with the states, FBI, and the
National Crime Prevention and Privacy Compact Council to convene
working groups to identify possible solutions to receive data directly
from other states and a standard, automated, more cost-efficient and
effective solution. TSA later leveraged these efforts in the TWIC
program and other STA programs that require criminal history records
checks. TSA discovered multiple problems with obtaining information
directly from the states:
1. The states have varying data systems and legal and practical
constraints, and TSA would likely be required to develop and build a
unique solution for each state to request data directly from all
states for each STA case. To minimize these problems,
TSA has discussed with the states an option of defining one common
technical solution through which states could send their data directly
to TSA. TSA is pursuing this as part of the Transportation Threat
Assessment and Credentialing (TTAC) Infrastructure Modernization
program, which was established to standardize and consolidate TSA's
security threat assessment systems.
2. Because many transportation workers have resided in and continually
travel across multiple states, requesting and receiving state-level
data from only an applicant's state of residence or enrollment is
inadequate and may miss criminal history in other states.
3. Some states may require additional fees to respond to TSA's request
directly, rather than using the FBI's system. As required by statute,
TSA's transportation worker vetting programs are funded through user
fees; this additional cost could dramatically increase fees to the
workers.
For the listed reasons, TSA has determined that using the established
FBI III system to request and receive data from all states would be
the most effective and efficient solution. State criminal history data
may be accessed via the III system managed by the FBI. The extent of
access to state data is based on the purpose of the data request.
Currently, a request must be deemed a "criminal justice" purpose to
receive the full breadth of CHRI available from all 50 states and the
District of Columbia. Many states may not upload all available
information into the FBI biometric system made available to TSA today,
and many states do not provide their III records for non-criminal
justice activities. If the pilot with the FBI is successful, this
method of using the state information may prove to be the most
efficient and effective means of sharing the most complete CHRI.
Recommendation 3: The Secretary of Homeland Security direct the TSA
Administrator to develop a workforce staffing plan with timelines
articulating how the TTAC Adjudication Center will effectively and
efficiently meet its current and emerging workload requirements, and
incorporate the results of TSA's study examining the appropriateness
and costs and benefits of using contractors.
Response: Concur. Although TSA does not believe that the TTAC
Adjudication Center has challenges in meeting its workload
requirements, we concur with the recommendation and have been working
on these strategies since before issuance of this draft report. TSA is
currently meeting its Adjudication Center workload requirements and
provided GAO a copy of the workforce staffing plan. TSA recognizes the
importance of appropriately balancing its federal and contractor
workforce and, in 2010, began a review to ensure that the right
workforce balance is achieved. TSA is analyzing the results of this
review to achieve the best balance of federal and contractor resources
as part of the Department-wide Balanced Workforce Strategy. The
results will be available once finalized.
As new STA programs are legislated and defined in regulation, TSA will
continue to assess the staffing needs to implement each emerging STA
requirement on the basis of Balanced Workforce Strategy results.
Again, thank you for the opportunity to review and comment on this
draft report. Sensitivity comments were previously provided under
separate cover. We look forward to working with you on future Homeland
Security issues.
Sincerely,
Signed by:
Jim H. Crumpacker:
Director:
Departmental GAO-OIG Liaison Office:
Appendix VI Footnotes:
[1] "Non-criminal justice purposes" means uses of criminal history
records for purposes authorized by federal or state law other than
purposes relating to criminal justice activities, including employment
suitability, licensing determinations, immigration and naturalization
matters, and national security clearances, (42 U.S.C. § 14616).
[2] "Criminal justice" includes activities relating to the detection,
apprehension, detention, pretrial release, post-trial release,
prosecution, adjudication, correctional supervision, or rehabilitation
of accused persons or criminal offenders. The administration of
criminal justice includes criminal identification activities and the
collection, storage, and dissemination of criminal history records.
(42 U.S.C. § 14616)
[3] See 28 U.S.C. § 534; 28 CFR § 20.33(a) (2).
[End of section]
Appendix VII: GAO Contact and Staff Acknowledgments:
GAO Contact:
Stephen M. Lord at (202) 512-4379 or lords@gao.gov:
Staff Acknowledgments:
In addition to the contact named above, David Bruno, Assistant
Director, and Jason Berman, Analyst-in-Charge, managed this
assignment. David Bieler, James Lawson, and Rebecca Kuhlmann Taylor
made significant contributions to this report. Michele Fejfar and
Richard Hung assisted with design and methodology. Geoffrey Hamilton
provided legal support. Tina Cheng, Jessica Orr, and Robert Robinson
provided assistance in report preparation.
[End of section]
Footnotes:
[1] Under Coast Guard maritime security regulations, a secure area, in
general, is an area over which the owner/operator has implemented
security measures for access control in accordance with a Coast Guard-
approved security plan. For most maritime facilities, the secure area
is generally any place inside the outer-most access control point. For
a vessel or outer continental shelf facility, such as off-shore
petroleum or gas production facilities, the secure area is generally
the whole vessel or facility. Secured airport areas include those
portions of an airport, specified in the airport security program, for
which security measures are conducted and generally include three
categories. In general (1) a Security Identification Display Area
(SIDA) is an area in which appropriate identification must be worn,
(2) a sterile area provides passengers access to boarding aircraft and
is an area to which access is generally controlled by TSA or a private
screening entity under TSA oversight, and (3) an Air Operations Area
is an area providing access to aircraft movements and parking areas.
See 49 C.F.R. § 1540.5.
[2] A Security Threat Assessment includes conducting a background
check to determine whether each applicant is a security risk to the
United States. These checks, in general, can include checks for
criminal history records, immigration status, terrorism databases and
watchlists, and records indicating an adjudication of lack of mental
capacity, among other things. TSA security threat assessment-related
regulations define the term security threat to mean an individual whom
TSA determines or suspects of posing a threat to national security; to
transportation security; or of terrorism.
[3] See 49 U.S.C. § 44936; 49 C.F.R. §§ 1542.209, 1544.229 and
1544.230.
[4] For example, in accordance with Coast Guard regulation, all
mariners employed aboard U.S. merchant vessels greater than 100 Gross
Register Tons (Domestic Tonnage), except operators of uninspected
passenger vessels, are required to have a valid U.S. Merchant Mariners
Credential. Under this program, TSA and Coast Guard conduct the
background check, with Coast Guard responsible for issuing a
credential. Once the credential is issued, the Coast Guard is
responsible for verifying the validity of the credential. Nonfederal
public entities--such as a state or port authority--do not have roles
in this credentialing process. Port authorities may be state or local
government entities, but may also be privately operated.
[5] Pub. L. No. 107-295, 116 Stat. 2064, 2073-74 (2002).
[6] Biometrics refers to technologies that measure and analyze human
body characteristics--such as fingerprints, eye retinas and irises,
voice patterns, facial patterns, and hand measurements--for
authentication purposes.
[7] Pub. L. No. 111-281, 124 Stat. 2905, 2999 (2010).
[8] Pub. L. No.107-56, 115 Stat. 272, 396 (2001).
[9] Pub. L. No. 107-71, 115 Stat. 597, 639-40 (2001).
[10] The Screening Coordination Office was established by DHS to
coordinate the numerous and disparate credentialing and screening
initiatives within DHS.
[11] These organizations included the American Association of Port
Authorities, Owner Operator Independent Drivers Association; American
Trucking Associations; American Association of Motor Vehicle
Administrators; American Association of Airport Executives; Institute
of Makers of Explosives; National Petrochemical & Refiners
Association; International Liquid Terminals Association; and the
Agricultural Retailers Association.
[12] TSA classifies the nation's approximately 450 commercial airports
into one of five categories (X, I, II, III, and IV) based on various
factors, such as the number of take-offs and landings annually, the
extent of passenger screening at the airport, and other security
considerations. In general, Category X airports have the largest
number of passenger boardings, and Category IV airports have the
smallest.
[13] We obtained information from eight airports, including:
Hartsfield-Jackson Atlanta International Airport, Los Angeles
International Airport; Denver International Airport; John F. Kennedy
International Airport; Seattle-Tacoma International Airport;
Washington Dulles International Airport; Baltimore/Washington
International Airport; and Portland International Airport.
[14] We obtained information from six states: California, Florida,
Illinois, Maryland, New York, and Texas.
[15] On September 27, 2011, TSA announced a reorganization that would
place TTAC into a newly established Office of Intelligence and
Analysis. According to TSA, the agency is making several enhancements
to better align headquarters functions to enable its continued
evolution to a high performance counterterrorism organization. This
includes merging various TTAC functions with the Office of
Intelligence to ensure vetting and intelligence informs daily
operations.
[16] The Compact Council's mission statement provides that the Compact
Council, as a national independent authority, works in partnership
with criminal history record custodians, end users, and policy makers
to regulate and facilitate the sharing of complete, accurate, and
timely criminal history record information to noncriminal justice
users in order to enhance public safety, welfare, and security of
society while recognizing the importance of individual privacy rights.
[17] SEARCH is a nonprofit organization created by and for states
which serves as the national consortium for justice information and
statistics. It is governed by a Membership Group comprised of one
gubernatorial appointee from each of the 50 states, the District of
Columbia, Puerto Rico and the U.S. Virgin Islands, as well as eight at-
large appointees selected by SEARCH's Chair. Members are primarily
state-level justice officials responsible for operational decisions
and policymaking concerning the management of criminal justice
information, particularly criminal history information.
[18] GAO, Standards for Internal Control in the Federal Government,
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1]
(Washington, D.C.: November 1999).
[19] In addition, the TWIC and HME disqualifying criminal offenses
include related conspiracy and attempt offenses for each of the 24
specified offenses.
[20] Applicants with certain permanent disqualifying criminal offenses
and any interim disqualifying criminal offenses may request a waiver
of their disqualification. In general, TSA may issue such a waiver if
TSA determines that an applicant does not pose a security threat based
upon the security threat assessment. There is also an appeals process
by which any applicant may appeal a TSA finding that the applicant
poses a security threat.
[21] Similar to the TWIC and HME disqualifying criminal offenses, the
aviation disqualifying criminal offenses also include additional
related conspiracy and attempt offenses for each of the disqualifying
offenses.
[22] The mission of TTAC is to reduce the probability of a successful
terrorist or other criminal attack on the transportation system
through the application of threat assessment methodologies that are
intended to identify known or suspected terrorist threats working or
seeking to access the United States' transportation system.
[23] The FBI maintains the Integrated Automated Fingerprint
Identification System, which is a national fingerprint and criminal
history system that responds to requests from local, state, and
federal agencies. The system provides automated fingerprint search
capabilities, latent search capability, electronic image storage, and
electronic exchange of fingerprints and responses. A segment of this
system is the FBI-maintained criminal history record repository, known
as the Interstate Identification Index (III or "Triple I") system that
contains records from all states and territories, as well as from
federal and international criminal justice agencies. The state records
in the III are submitted to the FBI by central criminal record
repositories that aggregate criminal records submitted by most or all
of the local criminal justice agencies in their jurisdictions. The
records in the system are all based on 10 rolled fingerprints, which
provide a positive, biometric match between the individual and his or
her record. The NCIC is a name and biographic descriptor-based
computerized system containing criminal justice information (i.e.
wanted person information; sex offender information; missing person
information; unidentified person information; and stolen property
information).
[24] Pursuant to Homeland Security Presidential Directive 6, dated
September 16, 2003, the Terrorist Screening Center--under the
administration of the FBI--was established to develop and maintain the
U.S. government's consolidated database of terrorist screening
information, called the Terrorist Screening Database. Terrorist
identity information in the Terrorist Screening Database is used for
security-related screening processes. The Selectee List, a subset of
the Terrorist Screening Database, contains information on individuals
who must undergo additional security screening before being permitted
to board an aircraft. The No Fly List, another subset of the Terrorist
Screening Database, contains information on individuals who are
prohibited from boarding an aircraft. The No Fly and Selectee lists
contain applicable identity information from the Terrorist Screening
Center's consolidated database of known or suspected terrorists.
[25] Run by U.S. Citizenship and Immigration Services, the Systematic
Alien Verification for Entitlements information system is an
intergovernmental initiative designed to aid benefit-granting agencies
in determining an applicant's immigration status, thereby ensuring
that only entitled applicants receive federal, state, or local public
benefits and licenses. The program is an information service for
benefit-granting agencies, institutions, licensing bureaus, and other
governmental agencies.
[26] Each state maintains a central criminal repository, or database,
of criminal arrests and convictions of individuals in that state.
[27] Individuals with unescorted access to an airports Sterile Area
and SIDA are required to undergo immigration and terrorist vetting as
well as a criminal history record check. Those requiring Air
Operations Area access undergo a terrorist and immigration check, but
not a criminal history record check.
[28] Based on information we obtained between April and November 2011.
[29] In May 2011, the State of Florida amended Florida State Law
311.12 repealing provisions requiring workers accessing the state's 12
active deepwater public ports to undergo a state criminal history
records check. The repealed provisions contained disqualifying
offenses, such as theft and burglary, not specifically identified as a
disqualifying offense under the TWIC program. The repealed provisions
also required that individuals who had obtained their TWIC through the
federal TWIC-waiver process, whereby individuals with disqualifying
offenses could be granted a TWIC, had to additionally seek a Florida
waiver. While Florida has repealed its background check requirements,
various Florida ports still require that individuals attempting to
gain access to a port or facility provide a local port-specific
identification card in addition to the TWIC.
[30] Each state maintains a repository, which is a central database
that maintains criminal history records on all state offenders.
Records include fingerprint files and files containing identification
segments and notations of arrests and dispositions. The central
repository is generally responsible for state-level identification of
arrestees, and commonly serves as the central control terminal for
contact with FBI record systems.
[31] A machine readable identification card can be read with or
without direct contact (proximity) of the card with an electronic
reader. Techniques for storing and reading the cards include smart
chips which are integrated circuits imbedded in the card which allow
data to be stored on the card, bar codes, and magnetic strips.
[32] To date, Coast Guard has not issued its final TWIC card reader
rule. The Coast Guard is responsible for developing TWIC-related
security regulations and ensuring that MTSA-regulated maritime
facilities and vessels are in compliance with these regulations. In
August 2006, DHS officials decided, based on industry comment, to
implement TWIC through two separate regulations, or rules. The first
rule, issued in January 2007, directs the use of the TWIC as an
identification credential or flashpass. The second rule, the card
reader rule, is currently under development and is expected to address
how the access control technologies, such as biometric card readers,
are to be used for confirming the identity of the TWIC holder against
the biometric information on the TWIC. On March 27, 2009, the Coast
Guard issued an Advance Notice of Proposed Rule Making for the card
reader rule.
[33] TSA maintains a database identifying whether a TWIC is valid or
has been canceled. TSA provides MTSA regulated port facility operators
with periodic updates of this information.
[34] The method by which facility operators may meet this requirement
is left to the operator themselves, such as by questioning TWIC
holders to determine whether they have a bonafide business need.
[35] GAO, Transportation Worker Identification Credential, Internal
Control Weaknesses Need to Be Corrected to Help Achieve Security
Objectives. [hyperlink, http://www.gao.gov/products/GAO-11-657]
(Washington, D.C.: May 10, 2011).
[36] Under TSA's Security Threat Assessment process, applicants who
are determined to have disqualifying criminal offenses may request a
waiver for certain disqualifying offenses, including murder and
robbery. Appendix IV lists these offenses. MTSA required the
establishment of a waiver process, and under TSA implementing
regulations, TSA may issue a waiver if TSA determines that an
applicant does not pose a security threat after considering, as
applicable, the circumstances of the disqualifying act or offense,
restitution made by the applicant, and federal or state mitigation
remedies, court records, or official medical release documents
indicating that the applicant no longer lacks mental capacity, or
other factors that indicate the applicant does not pose a security
threat warranting denial.
[37] TSA reported all were valid TWIC holders as of July 1, 2011.
[38] Concern over the impact of illicit drugs and drug trafficking
came to the forefront in Florida during the mid to late 1990s.
According to a 1998 Florida State Senate report, Florida ports had
extensive criminal networks conducting narcotics and cargo theft.
According to this report, in 1997 there were more cocaine-related
deaths in Florida than murders. Additionally, the FBI estimates that
in the United States, cargo theft amounts to $12 billion annually and
finds that most cargo theft occurs in or near seaports.
[39] According to Port of Miami officials, many of the 52 TWIC holders
were denied because they had disqualifying criminal offenses based on
the former state port security law, including for multiple theft
violations.
[40] A rap back refers to an automated system identifying arrests,
wants, or warrant information of an individual after compiled criminal
history information has been released to a requesting agency.
[41] TSA requires TWIC applicants pay a fee of $132.50 pursuant to 6
U.S.C. § 469, which requires TSA to charge reasonable fees for
credentialing and background investigations in the field of
transportation.
[42] The Alabama State Port Authority reported costs including an NCIC
subscription for conducting name based criminal history checks and
classroom supplies for required security awareness training required
for applicants.
[43] TSA established the Infrastructure Modernization program to
standardize and consolidate the agency's Security Threat Assessment
systems. We are currently conducting a separate review of this program
and anticipate reporting by the end of calendar year 2011.
[44] Of the six states that we contacted, the four that conducted
state criminal history record checks were Florida, Maryland, New York,
and Texas. Two others contacted--California and Illinois--reported not
implementing additional activities.
[45] Two of these four states--New York and Maryland--are required by
state statute to conduct state criminal history checks on applicants
before issuing a HME. The two others--Texas and Florida--both reported
they were doing so on a voluntary basis.
[46] According to responsible officials with New York state's program,
New York state's lawmakers established their program to address the
unique security threats facing New York.
[47] If TSA determines that an individual poses a threat based on
checks of information in the Terrorist Screening Database or
immigration checks, TSA will notify the airport to revoke the
credential.
[48] TWICs, in general, are to expire 5 years after the date of
issuance at the end of the calendar day. With respect to HMEs, each
state must require that hazardous material endorsements be renewed
every 5 years or less so that individuals are subject to a TSA
security screening requirement at least every 5 years.
[49] The Interstate Identification Index system uses an index-pointer
approach to tie together the criminal history record databases of
state central repositories and the FBI. Under this system, the FBI
makes available an index listing the names of individuals on whom it
maintains criminal history record information. An agency seeking
criminal history record information on a specific individual will
submit that individual's name and fingerprints to the FBI. The Bureau
will match the name and fingerprints against the index and then
"point" the information request to the database (either State or
Federal) where the requested information is maintained. The index
contains information on persons arrested for fingerprintable felonies
and misdemeanors under state or federal law. It includes
identification information (for example, name, birth date, race and
gender), and FBI and state identification numbers from each state that
has information about an individual. FBI reports the Integrated
Automated Fingerprint Identification System, which includes the
Interstate Identification Index, held the criminal histories of more
than 70 million subjects.
[50] Pub. L. No. 105-251, 112 Stat. 1870, 1874 (1998). According to
Compact Council documents, the Compact became effective April 28,
1999, after Montana and Georgia became the first two states to ratify
it, respectively. To date, 29 states have ratified the Compact.
[51] The National Crime Prevention and Privacy Compact provides for
the creation of a Compact Council to oversee noncriminal justice use
of the Interstate Identification Index. The Compact Council's mission
statement provides that the Council, as a national independent
authority, works in partnership with criminal history record
custodians, end users, and policy makers to regulate and facilitate
the sharing of complete, accurate, and timely criminal history record
information to noncriminal justice users in order to enhance public
safety, welfare, and security of society while recognizing the
importance of individual privacy rights. Under the Compact Act, the 15
members of the Compact Council appointed by the Attorney General are
to be comprised of nine State Compact Officers, two at-large members
nominated by the FBI Director, two at-large members nominated by the
Chairman of the Compact Council, one FBI Advisory Policy Board
representative, and one FBI representative.
[52] In addition, the Compact Act defines the term "criminal justice
agency" to mean, (1) courts, and (2) a governmental agency or subunit
thereof that (i) performs the administration of criminal justice
pursuant to a statute or executive order, and (ii) allocates a
substantial part of its annual budget to the administration of
criminal justice. The term criminal justice agency also includes
federal and state inspectors general offices.
[53] All 50 states and the District of Columbia participate in the
Interstate Identification Index. Fifteen states also participate in
the National Fingerprint File. National Fingerprint File states assume
responsibility for providing Interstate Identification Index-indexed
records for criminal and noncriminal requests--a responsibility
traditionally maintained by the FBI. Since states traditionally report
to have more complete information than what has been submitted to the
FBI's systems, the National Fingerprint File allows participating
states to provide their state rap sheets directly when the FBI
processes fingerprint-based criminal history record checks. The FBI
reports that, as of October 9, 2011, the 15 National Fingerprint File
states were Colorado, Florida, Georgia, Hawaii, Idaho, Kansas,
Maryland, Minnesota, Montana, North Carolina, New Jersey, Oklahoma,
Oregon, Tennessee, and Wyoming.
[54] According to TSA, the agency has conducted over 3 million
Security Threat Assessments requiring a criminal history record check,
and over 40 percent of the cases have included associated criminal
records identified during automated FBI database checks, thus
requiring an initial manual review by adjudicators at the TTAC
Adjudication Center.
[55] U.S. Department of Justice, Office of the Attorney General, The
Attorney General's Report on Criminal History Background Checks (June
2006).
[56] According to a TSA estimate from November 2010, of the 3 million
Security Threat Assessments requiring a criminal history record check,
over 40 percent of the cases had associated criminal records that TSA
manually adjudicated for possible disqualifying offenses. Of these,
TSA's TTAC issued 62,000 initial threat determinations for applicants
identified with potentially disqualifying offenses. Of these, roughly
23,560 (38 percent) had open dispositions and TSA reported that many
of these may have been resolved through expanded criminal justice
information access to FBI's Interstate Identification Index.
[57] The FBI reported that, to address the issue, the Bureau had
historically taken a proactive approach to encourage and assist
agencies to submit complete and accurate information in a timely
manner. Among these efforts have included providing operational and
policy guidance to agencies requesting assistance with submitting
criminal history record information, hosting annual national criminal
history improvement conferences, technical support to agencies
transitioning from manual processing to automated electronic
submissions.
[58] Compact Act implementing regulations provide that for purposes
approved by the Compact Council, a delayed submission of fingerprints
may be permissible under exigent circumstances.
[59] The Departments of Commerce, Justice, and State, and Related
Agencies Appropriations Act, 1991, in general, authorizes FBI to
establish and collect fees to process fingerprint identification
records and name checks for non-criminal justice purposes, and the
current FBI fee is $17.25 per check (Pub. L. No. 101-515, 104 Stat.
2101, 2112 (1990)(codified at 28 U.S.C. §534 note)).
[60] [hyperlink, http://www.gao.gov/products/GAO-11-657].
[61] TSA reported that it conducts a name-based check of enrollees
against federal wants and warrants on an ongoing basis for TSA
credentialing programs which require a criminal history record check.
However, these checks are against federal wants and warrants lists,
not state-level information. Federal wants generally consist of
information on wanted persons, or individuals, for whom federal
warrants are outstanding.
[62] According to TSA, it is not by definition a criminal justice
agency, but is uniquely different in scope and nature of mission.
Security Threat Assessments, according to TSA, are not uniquely
noncriminal justice in nature, as they are not employment specific,
but the goal of conducting them is to prevent, deter, and protect
critical infrastructure and transportation networks against terrorist
attacks.
[63] The FBI reports that this solution would provide TSA with
additional information to support TSA adjudication determinations,
including information on the offense level type and the specific state
statute of the offense.
[64] GAO, Standards for Internal Control in the Federal Government,
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1]
(Washington, D.C.: November 1999).
[65] Officials with the Florida Department of Law Enforcement reported
using a 2005 DHS grant to fund a technical solution for transmitting
its information to TSA. Officials reported doing so to improve the
information available for TSA's Security Threat Assessment.
[66] If TSA determines an applicant has one or more disqualifying
criteria, the agency issues an Initial Determination of Threat
Assessment letter to the applicant. Redress is adjudication of cases
for those applicants seeking a waiver or appeal to the Initial
Determination of Threat Assessment.
[67] The Adjudication Center caseload is completed using contractor
staff to perform initial adjudication with federal staff reviewing all
potentially disqualifying cases, issuing Initial Determination of
Threat Assessments, and conducting redress actions supported by more
senior contractor staff.
[68] TSA reported that upon the completion of each existing contract
period of performance, the government was required to resolicit for a
new contractor.
[69] According to TSA data, a total of 937,933 applicants enrolled in
TSA's HME, TWIC, and Aviation Workers programs from July 2010 through
June 2011. During automated vetting, 396,514 applicants were
identified as having some derogatory information requiring
adjudication center review during this period.
[70] GAO, A model of Strategic Human Capital Management, [hyperlink,
http://www.gao.gov/products/GAO-02-373SP] (Washington, D.C.: Mar. 15,
2002).
[71] Inherently governmental functions are generally defined as those
functions that are so intimately related to the public interest as to
require performance by federal government employees.
[72] According to the contract, for the first year, contractor fees
are $5,954,821--of which $4,463,918 is for labor.
[73] According to TSA's contract for the Adjudication Center, taking
on new programs may increase the caseload of the adjudication center--
including doubling or tripling the caseload for some durations.
[74] GAO, Human Capital: Key Principles for Effective Strategic
Workforce Planning [hyperlink, http://www.gao.gov/products/GAO-04-39]
(Washington, D.C.: Dec. 11, 2003).
[75] Pub.L. No.107-56, 115 Stat. 272 (2001).
[76] Pub. L. No. 107-71, 115 Stat. 597 (2001).
[77] Pub. L. No. 107-295, 116 Stat. 2064 (2002).
[78] Other organizations we contacted included the Owner Operator
Independent Drivers Association ; American Association of Motor
Vehicle Administrators; American Association of Airport Executives;
Institute of Makers of Explosives; National Petrochemical & Refiners
Association; International Liquid Terminals Association; and
Agricultural Retailers Association.
[79] The top 10 ports by container volume in 2010 were: Los Angeles,
Calif.; Long Beach, Calif.; New York, N.Y.; Savannah, Ga.; Oakland,
Calif.; Norfolk, Va.; Houston, Tex.; Seattle, Wash.; Charleston, S.C.;
and Tacoma, Wash. The additional seven ports we contacted include:
Miami, Fla.; Port Everglades, Fla.; Baltimore, Md.; Wilmington, N.C.;
Portland, Oreg.; Boston, Mass.; and Mobile, Ala.
[80] TSA classifies the nation's approximately 450 commercial airports
into one of five categories (X, I, II, III, and IV) based on various
factors, such as the number of take-offs and landings annually, the
extent of passenger screening at the airport, and other security
considerations. In general, Category X airports have the largest
number of passenger boardings, and Category IV airports have the
smallest.
[81] We obtained information from eight airports: Atlanta, Los
Angeles; Denver; New York-JFK; Seattle-Tacoma International Airport;
Washington-Dulles International Airport; Baltimore/Washington
International; and Portland, Oregon.
[82] We obtained information from six states: California, Texas,
Florida, New York, Illinois, Maryland.
[83] According to Department of Transportation officials, information
on the number of HME endorsements by state was not available.
Therefore, we used data provided by the department on the number of
Master Pointer Records in the Commercial Driver's License Information
System as a proxy for HME endorsements by state. The system is a
database that contains certain information on individuals who have
either been issued a commercial driver's license or who have been
convicted of an offense in a vehicle that requires a commercial
driver's license.
[84] Pub. L. No. 105-251, 112 Stat. 1870, 1876 (1998) (codified at 42
U.S.C. 14616).
[85] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1]
(Washington, D.C.: November 1999).
[86] The Compact Council, as a national independent authority, works
in partnership with criminal history record custodians, end users, and
policy makers to regulate and facilitate the sharing of complete,
accurate, and timely criminal history record information to
noncriminal justice users in order to enhance public safety, welfare,
and security of society while recognizing the importance of individual
privacy rights.
[87] SEARCH is a nonprofit organization created by and for states
which serves as the national consortium for justice information and
statistics. It is governed by a Membership Group comprised of one
gubernatorial appointee from each of the 50 states, the District of
Columbia, Puerto Rico and the U.S. Virgin Islands, as well as eight at-
large appointees selected by SEARCH's Chair. Members are primarily
state-level justice officials responsible for operational decisions
and policymaking concerning the management of criminal justice
information, particularly criminal history information.
[End of section]
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