On December 17, 2008, four NFFE Local 1998 Union representatives and the NFFE General Counsel met with an official from President-Elect Barack Obama's Transition Team for the Department of State to express two particular aspects of this concern: 1) the production quotas for passport adjudication should be adjusted to allow more time for fraud detection and diligent adjudication, and 2) the passport application acceptance/execution function should only be performed by government workers (not contractors).  
 

The importance of protecting the integrity of the passport issuance process

The United States passport has been called the "gold standard of travel documents".  It is accepted as proof of citizenship and identity for U.S. citizens/nationals - for entering the U.S., but also for other purposes as well (domestic air travel, business transactions, obtaining government benefits, entering federal buildings, etc.).  The trustworthiness of the passport - and the trustworthiness of the issuance process - is relied upon by officers of U.S. and foreign government agencies.  As such, it is a cornerstone of our nation's border security and thus our national security.  

The Department of State's Bureau of Diplomatic Security (DS) is the Agency responsible for conducting "criminal investigations into violations of passport and visa fraud."  DS explains that "These federal felonies are often committed in connection with more serious crimes, such as international terrorism, narcotics trafficking, organized crime, alien smuggling, money laundering, pedophilia, and murder. These investigations are critical to the President's efforts to secure American borders and protect the national security of the United States.”  DS adds: “The U.S. passport is the most valuable identity document in the world as it establishes American citizenship and allows its bearer unlimited access to virtually every country in the world. People who attempt to obtain a U.S. passport illegally often are seeking to change their identities and conceal their activities and movements.”

Criminals attempt to commit passport fraud either by tampering/misusing the passport itself, or by illegally obtaining a passport through the application process.  It is the vulnerabilities in the application process that are the focus of the Union's concerns, though the Union has protested the manufacturing of the passport book cover and electronic chip in Europe and Thailand.  

When adjudicators are forced to rush through the inspection process to meet quotas, the result is that frauds are issued in error to criminals.  NFFE Local 1998 believes this vulnerability should be addressed by providing more time, and more resources, for adjudicators to do their jobs.  

Attempts by the Union to address concerns

For over 2 years leading up to the implementation of standardized adjudication performance standards on January 1, 2004, the Union made numerous efforts to work with Management through partnership and negotiations processes on this issue - "Plan A" - and expressed the concerns of the employees to Management on numerous occasions. When Plan A finally failed on December 2, 2003, the Union was forced to take the unprecedented step of conveying its concerns on this serious subject by writing letters to and visiting members of Congress: "Plan B".  This also involved contacting the Department of State's Office of Inspector General (OIG).  The Union also contested Management's unreasonable performance plan via traditional labor-management methods (by filing a Grievance and two Unfair Labor Practice charges), dubbed "Plan C", but those efforts were unsuccessful. Local 1998 received a great deal of support from its umbrella organizations. NFFE sent letters to 60 members of Congress, while the IAMAW included this issue in its Internet newsletter that reaches hundreds of thousands of members.
 

The GAO, OIG, and Congress investigate

The Congress heard the concerns of the Union and asked the Government Accountability Office (GAO) to investigate.  On June 29, 2005 the GAO issued a report titled "Improvements Needed to Strengthen U.S. Passport Fraud Detection Efforts" which criticized the Department of State's efforts to detect and prevent passport fraud. That same day the U.S. Senate Homeland Security & Governmental Affairs Committee held a hearing titled "Vulnerabilities in the U.S. Passport System Can Be Exploited by Criminals and Terrorists", which addressed the GAO's report on this issue. Four NFFE Local 1998 Union representatives attended the hearing along with a NFFE National official and an IAMAW official. The GAO made six recommendations: 

1) consider way to improve interagency information sharing; 
2) establish a centralized and up-to-date fraud prevention library; 
3) consider augmenting fraud prevention staffing; 
4) assess the extent to which interoffice workload transfers may hinder fraud prevention; 
5) strengthen fraud prevention training; and 
6) strengthen fraud prevention oversight.

All of these issues were brought to the attention of Congress and the GAO by NFFE Local 1998 and the employees that we represent as part of "Plan B", with the aid of NFFE, the IAMAW, other NFFE and IAMAW locals, and our friends and families.  Comments by NFFE Local 1998 were included in the HSGAC report (numbered 75 through 89 in the report itself, but numbered 79 through 93 in the PDF). 

Related to the GAO's 3rd recommendation about permanent anti-fraud staffing, the Department of State's own Office of Inspector General (OIG) issued a report critical of passport anti-fraud efforts in November 2004. The Union's May 2005 Freedom of Information Act (FOIA) request to have the portions focusing on Management's decision to eliminate the Assistant Fraud Program Manager (AFPM) position was partially approved on approximately August 4, 2005. The released portions reveal that "DS agents working with passport fraud, CA/FPP officers, and all passport agency FPMs" were not "consulted prior to the announcement of the decision to abolish the assistant FPM position in late 2003", adding that "[a]ll of the stakeholders claimed they would have opposed this personnel policy had they been consulted". The report mentioned the fact that the "union had expressed concerns about the effect that the elimination of this position would have on detection of passport fraud". As a result of the elimination of the AFPM's, "[s]everal of the FPMs said they are now spending more time training staff, are involved in a never-ending training mode, and have less time to devote to operational work, case development, and analysis". The OIG formally recommended that the AFPM positions be reestablished. 

The light shined on this subject definitely yielded positive results - most notably the addition of over a million names of fugitive criminals and suspected terrorists from the FBI and the Terror Screening Center to the Department of State's passport CLASS Namecheck system.  The closing of this major loophole was reported on by many major media outlets, including The New York Times in a front page story and NBC Nightly News.  
 

Continued efforts to address adjudication quotas

The June 29, 2005 GAO report was also critical of the development of the adjudication performance standards and stated that the changes did put more emphasis on quantity rather than quality, but concluded that since the work processes kept changing during the time period studied, they were unable to draw firm conclusions on the issue at this time. 

However, while the GAO pointed out that "in response to union and examiner [adjudicator] concerns, State eased the production standards during 2004 [the daily quota for GS-9 and GS-11 adjudicators was effectively lowered from 168 to 156 applications] and made a number of other modifications and compromises", the adjudicators continue to feel they have insufficient time to adequately scrutinize passport applications for fraud indicators and to determine entitlement to a U.S. passport.  

In July 2005 a survey of adjudicators showed that 96% believed the numerical standards still did not provide enough time, a more comprehensive January 2006 survey found that 94% of respondents felt the same (and 96% felt that the focus in the job was more on quantity than on quality), and in March 2007 a petition was signed by 85% of non-probationary adjudicators asking that HQ lower the quotas (scroll down below for more on this). This problem received coverage in a July 2007 Christian Science Monitor Story (also picked up by the UPI) and in a June 2007 story by MSNBC Red Tape Chronicles author Bob Sullivan, in which he asked "What stands between a terrorist and a new U.S. passport? About two and a half minutes. That's how much time passport inspectors have to make sure applications are authentic."

From January 2006 to present, the Union has continued to press this issue in communications to HQ (including formal requests in writing to the Deputy Assistant Secretary of State for Passport Services) and in contract negotiations, though no headway has been made as of early January 2009.   
 

Efforts to address passport acceptance function concern 

Applicants who submit passport applications for the first time must apply in person and establish their identity, swear an oath, and meet other requirements to a Passport Acceptance Agent.  This process is called "accepting" or "executing" a passport application.  Prior to June 2007, it had been decades-long (or longer) practice and policy of the Department of State that passport applications could only executed by government personnel - Passport Specialists and Foreign Service Officers employed by the Department of State, specially designated employees of the U.S. Postal Service, or specially designated state, county, or city government officials.  This is a very critical function, as the person accepting the application literally serves as the eyes and ears of the Department of State.  A passport is essentially a letter from the Secretary of State to a foreign government that identifies the bearer and asks for entry and assistance for that bearer in his/her travels.  The basis for the Secretary to identify the bearer in the passport begins most critically with the Acceptance Agent.  The Acceptance Agent plays an important role in helping to detect and prevent fraudulent applications for passports.  

As a step to address the unprecedented workload crisis in mid-2007 that was caused by insufficient hiring and preparation, Passport Services Management took the alarming step of contracting out this vital function in June 2007 to non-governmental contractors who had no experience and little training on how to execute passport applications or identify fraudulent applicants.  NFFE Local 1998 attempted to address this by filing an Unfair Labor Practice charge, which was resolved with a memorandum of understanding that only served to somewhat lessen the chance of the function being contracted out in the future.  

The Union also submitted a FAIR Act Inventory challenge on July 29, 2008.  A July 31, 2008 NFFE National press release on this subject was picked up by the Government Executive on August 5, 2008 and by Federal Daily on August 8, 2008.  The challenge was denied by the Department of State on September 5, 2008 so on September 15th NFFE President Rick Brown wrote a letter to Secretary of State Condoleeza Rice appealing the denial.  In the September 5th denial, the DOS claimed that the function of identifying passport applicants was not inherently governmental and could be contracted out.  However, the DOS stated that the practice had ceased and would not continue, noting that 400 adjudicators had been hired since September 2007.  NFFE President Brown expressed appreciation for that statement, but argued that the job function was inherently governmental and that the door to using contractors for that job should be closed permanently.  The Union's appeal was subsequently denied.  

The Union also wrote to the Department of State seeking a meeting to discuss another aspect of this issue - the Administrative Procedures Act (APA).  That law governs the federal rules-making process - the manner in which a proposed rule in the Federal Register becomes a final rule (with the force of law) in the Code of Federal Regulations.  The Department of State has not yet agreed to a meeting.  The Union's concern is that the Department of State may have violated the APA by publishing in the final rule as part of 22 CFR 51.22 explicit authorization to use contractors for the execution function when that was never included in the March 7, 2007 proposed rule - a "bolt from the blue".  The problem is illustrated here: 
 

As you can see, there was no change in what was proposed in 22 CFR 51.22(c)(3) - Acceptance Agents would exclude "contractual" (non-governmental) workers.  This was simply a restating of long-standing Department of State policy.  It also reflects the fact that there was no intent in March 2007 to use contractors for this function.  Later, when Passport Services Management did use contractors for this function, they compared them to Acceptance Agents (as opposed to Passport Specialists directly employed by the Department of State).  The Union agrees with the inclusion of this restatement of long-standing policy in the CFR.  

The potential violation of the APA occurs above, in 22 CFR 51.22(a)(4), where the Department of State had listed only DOS employees in the proposed rule but then added "and contractors" in the final rule.  

There were only four comments on the proposed rule received by the Department of State.  None of them touched on the issue of the use of contractors to perform the acceptance function.  The Union was not given the opportunity, as required by the APA, to comment on any proposed addition of "and contractors" to the CFR.  The Union believes these two words should be stricken from the CFR.