Information Package on the Marine Transportation Security Clearance Program (MTSCP)

Introduction
The Marine Transportation Security Clearance Process
The Marine Transportation Security Clearance Application Process Flowchart
The Office of Reconsideration
The Marine Transportation Security Clearance Office of Reconsideration Flowchart
Personal Information to be Collected Directly From Applicants
The Collection of Personal Information 
Responses to Stakeholder Questions

Introduction

The Marine Transportation Security Clearance Program (MTSCP) was initiated in January 2003 with a commitment to introduce background checks of workers at marine facilities and ports. The purpose of the (MTSCP) is to reduce the risk of security threats by preventing unlawful interference with the marine transportation system by conducting background checks on marine workers who perform certain duties or who have access to certain restricted areas. The (MTSCP) will enhance the security of the marine transportation system, benefiting the public, passengers, marine workers, and operators of vessels, ports and marine facilities. The (MTSCP) is not a new program. Rather, it is an expansion of the existing Transportation Security Clearance Program, which has been in place at Canada’s airports since 1985.

The (MTSCP) was developed and consulted on extensively through a Transport Canada/Industry working group. Originally the MTSCP was to be included in the Regulations that came into force on July 1, 2004, which comprised two rounds of national public consultations. However, to allow for more thorough consultations and policy development, it was held in reserve.

Transport Canada has used stakeholder input throughout the development of the regulations and has incorporated substantial changes as a result:

• In response to stakeholder concerns about the practicality of requiring clearances of all workers as originally envisaged, Transport Canada instead has developed a risk-based criteria to focus the (MTSCP) on specific designated duties and smaller restricted areas that will require a security clearance;
• In response to requests for an easily accessible independent review mechanism, an Office of Reconsideration is now being established in Ottawa. This office will be independent of the office making the initial recommendation to refuse or cancel the security clearance; and,
• In response to concerns about the breadth and depth of information collected for background checks, Transport Canada will only request the minimum information required to provide for a fair and effective assessment of an applicant's risk to the security of the marine transportation system. Transport Canada has conducted a Privacy Impact Assessment on the collection of personal information under the (MTSCP)

The Marine Transportation Security Clearance Process

The Marine Transportation Security Regulations (MTSRs) include provisions for security clearances for marine workers. This means that the Transportation Security Clearance Program, which has been in place since 1985 for airport personnel, extended to the marine sector. The process for submitting and evaluating applications for security clearances will therefore build on the experience gained from Canada's program of background security checks for the aviation sector.  This same program now applies to workers in the marine sector who perform certain duties or have access to certain restricted areas.

The following steps, as outlined in the Marine Transportation Security Clearance Application Process flowchart, are involved in processing an application for a security clearance:

1. The applicant completes and submits the security clearance application form at the enrolment site, located at the port or a designated office, and has their facial image and fingerprints taken.
2. The enrolment site sends all of the information[1] (application form, facial image, fingerprints, copies of birth certificate/immigration/citizenship documents/passport), electronically through secured channels to Transport Canada for processing. The relevant port does not keep or use the information for any other purpose.  Paper copies of the application form and documents are sent to Transport Canada for processing.
3. The following background checks are conducted by Transport Canada in cooperation with the Royal Canadian Mounted Police (RCMP), the Canadian Security Intelligence Service (CSIS), and Citizenship and Immigration Canada (CIC):

• a criminal record check;
• a check of the relevant files of law enforcement agencies, including intelligence gathered for law enforcement purposes; 
• a CSIS indices check, and if necessary, a CSIS security assessment; and,
• a check of the applicant’s immigration and citizenship status, if applicable.

Transport Canada's Intelligence Branch, upon receipt of all the information collected, conducts an evaluation.  The recommendation on whether to grant a security clearance is based on a global evaluation of the information obtained from the applicant and from the background checks, as to whether he/she poses a risk to marine security.  Once the evaluation is completed and there are no concerns, Transport Canada grants the security clearance and notifies the appropriate pass control office or enrolment site.

Note: It should be noted that some stakeholders have suggested that the clearance process be conducted in stages, with concerns at one stage triggering a move to the next stage of checks. In keeping with the goal of ensuring a fair system that identifies persons who might pose a risk to the security of the marine transportation system, it is important to conduct assessments on a more global evaluation of information.  For example, individuals with terrorist connections would not necessarily have criminal records and could potentially be granted a security clearance if the assessment was based on the need for an applicant to have a criminal record before assessing other areas.

1. If concerns are raised through the evaluation process, the applicant is notified of these concerns and given the opportunity to make written representations within thirty (30) days. In this case, the application is referred to a Transport Canada Advisory Body.  Before the Advisory Body considers the application, the applicant is notified so that any additional information, if required, may be submitted to the Body.
2. The Advisory Body, whose function is to make recommendations to the Minister or Minister’s delegate concerning security clearances, considers the application and any representations from the applicant.  If the information indicates that the individual may be a threat to marine transportation security, the recommendation to the Minister may be to refuse or cancel the security clearance.  Transport Canada will notify the applicant of the Minister’s decision. Currently in the aviation sector, the Minister’s delegate who either refuses or cancels a security clearance is identified as the Deputy Minister (DM). In future, the Minister’s delegate is expected to become the Director General of Security and Emergency Preparedness.
3. Currently in the aviation sector, the applicant whose security clearance has been refused or cancelled may resubmit an application if new information becomes available, or they can request judicial review in the Federal Court. In some circumstances, the applicant may be able to file a complaint with the Security Intelligence Review Committee (SIRC) if the security clearance is refused or cancelled based on information collected from CSIS. Under the MTSRs, a recourse step has been added, and the applicant will also be able to request reconsideration by the Minister of Transport, Infrastructure, and Communities through the Office of Reconsideration.

The Marine Transportation Security Clearance
Application Process Flowchart

The Office of Reconsideration

Previously, in the aviation sector, there was no administrative tribunal with the mandate to review ministerial decisions to refuse or cancel an existing security clearance. The Marine Transportation Security Regulations include a reconsideration process for security clearances for marine workers, which is the Office of Reconsideration. Transport Canada is also considering a long-term option for reconsideration, the Transportation Appeals Tribunal of Canada. It is important to understand the present role of the Transportation Appeals Tribunal of Canada.

The Transportation Appeals Tribunal of Canada (TATC) is a multi-modal, quasi-judicial recourse mechanism. It is available to the air, rail and marine sectors with respect to certain administrative decisions and enforcement actions taken by the Minister of Transport under various pieces of federal transportation legislation, or taken by designated enforcement officers under the Canada Transportation Act.  The TATC recourse mechanism is specific in what it can and cannot do: in punitive-type cases involving "breaking the law", such as the assessment of an administrative monetary penalty, the TATC is able to overturn the decision. In matters having direct safety consequences, such as the competency of a licensed or certified individual, the TATC is limited to confirming the Minister of Transport's decisions or referring them back to the Minister of Transport for reconsideration.  In the long-term, the TATC could perform in a similar way with respect to the (MTSCP).

It has been suggested that the reconsideration function be performed by the TATC, however, current legislation does not allow for this.  In order to allow the TATC to perform this review function, the following acts would require amendment: Transportation Appeals Tribunal of Canada Act; Aeronautics Act; Marine Transportation Security Act; Railway Safety Act; and Transportation of Dangerous Goods Act.  This course of action would take three to five years to complete. The decision on granting a security clearance is a “judgement” made by the Minister. Therefore, in any case, and even with legislative amendments, the TATC would not be allowed to overturn the decision, but only recommend to the Minister to reconsider the judgement.

In the interim, a short-term solution for the reconsideration process is the Office of Reconsideration (OOR), which is currently being established in Ottawa. An applicant whose security clearance has been refused or cancelled may apply to this office, which will arrange for an independent assessment of the case and make a recommendation to the Minister. This reconsideration process will operate under the Assistant Deputy Minister of Corporate Services, independent from the Safety and Security Branch and the original decision maker.

After the applicant receives a letter from Transport Canada outlining the reasons for the refusal or cancellation of a security clearance, the steps for application to the OOR include:

1. A written application by the applicant to the OOR. This written application is submitted within 30 days of the receipt of the decision, and outlines the grounds for reconsideration. Written submissions may be prepared by the applicant or by someone acting on his/her behalf.
2. The OOR conducts an assessment of the information and may contact the applicant, seek expert advice, or otherwise investigate.
3. The OOR provides a recommendation to the Minister. The Minister will either confirm the decision to refuse or cancel the security clearance, or grant the security clearance.
4. In the event that the Minister decides to grant the security clearance,Transport Canada will notify both the applicant and the appropriate pass control office or enrolment site.
5. In the event the Minister confirms the decision to refuse or cancel the security clearance, Transport Canada will notify the applicant of its decision. The applicant may still choose to pursue the matter further by way of judicial review in the Federal Court.

In the event there was a change in the individual’s circumstances that led to the security clearance being refused or cancelled, the individual always has the option to reapply.

In some circumstances, the applicant may be able to file a complaint with the Security Intelligence Review Committee (SIRC), if the security clearance is refused or cancelled based on information collected from CSIS.

The OOR will soon have an operational 1-800-number to provide complete information to the public, as well as a website. Also, the OOR will supply information pamphlets at the enrolment sites where they can be readily available to individuals when applying for a security clearance.

The Marine Transportation Security Clearance Office of Reconsideration Flowchart

Personal Information to be Collected Directly From Applicants

The following information will be collected from applicants under the Marine Transportation Security Clearance Program:

• The applicant’s usual given name used, other given names, surname,all other names used and details of any name changes;
• The applicant’s date of birth, gender, height, weight, and eye and hair colour;
• If the applicant was born in Canada, the number and province of issue of their birth certificate, as well as the original of that certificate;
• If the applicant was born outside Canada, their place of birth, the port and date of entry, and, in the case of a naturalized Canadian or permanent resident, the number and the original of the applicable certificate issued under the Citizenship Act or the Immigration and Refugee Protection Act;
• In the case of a foreign national, the original of any document that is evidence of their status;
• The applicant’s passport number, including the country of issue and expiry date, or an indication that the applicant does not have a passport;
• The addresses of all locations at which the applicant resided during the five years preceding the application;
• An identification of the applicant's activities during the five years preceding the application, including the names and street addresses of the applicant’s employers and any post-secondary educational institutions attended;
• The dates, destination, and purpose of any travel of more than 90 days outside Canada or the United States, excluding travel for government business, during the five years preceding the application;
  The following information respecting the applicant's spouse or common-law partner:
  
  • their gender, full given name, surname and, if applicable, maiden name;
  • their date and place of birth and, if applicable,date of death;
  • if born in Canada, the number and province of issue of their birth certificate
  • if born outside Canada, their place of birth and nationality, and the port and date of entry; and
  • their present address, if known.
• The following information respecting the applicant’s former spouses or common-law partners for whom the relationship ended in the past five years:
  • their gender, full given name, surname and, if applicable, maiden name;
  • their date and place of birth and, if applicable, date of death; and
  • their present address, if known;
  • The applicant's fingerprints, taken on behalf of the Minister;
  • A facial image of the applicant for identification purposes; and
  • A statement signed by the enrolment station certifying that the applicant requires or will require a transportation security clearance and works at the marine facility or port, or is a candidate for such work.

The Collection of Personal Information

The Marine Transportation Security Clearance Program (MTSCP) involves the collection of personal information. As such, it is being developed in a manner consistent with the requirements of the Privacy Act. The Privacy Act protects the personal information collected for background checks by restricting the use and disclosure of that information.  Personal information will only be collected and used to confirm the applicant’s identity and determine whether he/she may present a threat to marine transportation security.

The security clearance process is comprised of two major steps:

1. The collection of personal information directly from the applicant via an Application ('Transportation Security Clearance Form').
2. Background checks performed by Transport Canada, the Royal Canadian Mounted Police (RCMP), the Canadian Security Intelligence Service (CSIS), and if required, by Citizenship and Immigration Canada (CIC).

Transport Canada’s Role and Responsibilities

Transport Canada collects all the personal information for the administration of the MTSCP and is responsible for this information.  Information is needed to confirm the identity of the applicant and to facilitate identification during the background checks. In addition, this information is required to confirm or validate the data provided by the applicant on the application form.

Residential history is collected to allow confirmation of the applicant's presence and activities in Canada (or elsewhere).

Travel history is collected to see if an applicant has traveled to a country where there may be security concerns.

The Royal Canadian Mounted Police (RCMP)

The RCMP is responsible for checking criminal information related to an applicant. Only the fingerprints, the name, the place of birth and the gender of the applicant are disclosed to the RCMP.

For all security clearance applicants, the RCMP performs a fingerprint based criminal record check. The computer system at the RCMP that holds fingerprints is separate from the one that holds the reason that a given person's prints are on file. Fingerprints are checked against criminal records, and are never used as latent prints for unsolved crimes. Fingerprints are necessary to verify the identity of the applicant and to distinguish the applicant from another person with the same name or other identifier.

The applicant's information is compared against the criminal intelligence files of the RCMP. This is done to determine if an applicant may be linked to any criminal organizations.

The applicant's information is also checked on the Canadian Police Information Centre (CPIC) database to determine if there are any outstanding warrants against the applicant, and to confirm information found in the criminal record.  All Canadian police agencies provide information to CPIC.

The Canadian Security Intelligence Service (CSIS)

CSIS is a government agency mandated to provide advance warning to government departments and agencies about activities that may reasonably be suspected of constituting threats to the country's security, as defined in section 2 of the CSIS Act, (i.e. espionage and sabotage, terrorism, foreign-influenced activities and subversion). In order to do so, CSIS collects information, to the extent that it is strictly necessary, reports to and advises the Government of Canada.To ensure a balanced approach and protection of the rights and freedoms of the individual, the CSIS Act strictly limits the type of activity that may be investigated, the ways that information may be collected and who may view the information. The CSIS Act provides many controls to ensure adherence to these conditions. CSIS does not have the responsibility to take direct action to counter the security threats. Any direct action is the responsibility of other departments and agencies.

As well as investigating the threats to Canadian security, CSIS provides security assessments, on request, to federal departments and agencies such as Transport Canada. Under the MTSR, these assessments will be made with respect to applicants for positions requiring a security clearance and do not equate to a government security clearance, nor its requirements (i.e. Confidential, Secret, Top Secret).  The assessments serve as a basis upon which Transport Canada can recommend granting, refusing, or canceling a security clearance to an individual.

The intent of the exercise and the personal information collected are to determine whether persons being considered for transport security clearances, due to their required access to controlled areas in order to perform their duties, are susceptible to blackmail or otherwise persuaded to engage in activities that represent a threat to the country's security as defined above. Should adverse information surface as a result of the indices checks, CSIS may conduct further inquiries as are required for the purpose of providing security assessments (pursuant to section 13 of the (CSIS) Act). CSIS will also interview the individual so as to have the opportunity to clarify or confront any information of concern.

The applicant's name(s), address and other information, such as date and place of birth, gender, marital status, identifying information for other persons requested on the application form (spouse or common-law partner, former spouses and common-law partners) is the type of personal information provided to CSIS by Transport Canada.

The collection of personal information about an applicant’s spouse/common-law partner is necessary to determine if the applicant has, or has had, association of concern with individuals who may pose a threat to the security of Canada’s transportation system. CSIS checks these names against their indices.

Responses to Stakeholder Questions

1. The 'Reasonable Grounds to Suspect' Criterion

Some have questioned whether the appropriate threshold for refusing or canceling a security clearance is at 'known or there are reasonable grounds to suspect', or whether it should be at 'reasonable cause to conclude'.

Sec. 5 (1)(a) of the Marine Transportation Security Act states that regulations may be made to prevent interference that “could occur” with the marine transportation system.This preventative intent of the Act must be upheld, and using “reasonable grounds to suspect” as a threshold for granting, refusing or canceling a security clearance is consistent with our legislation.

It is important to note that the “reasonable grounds to suspect” criterion is used in other Canadian legislation, including the Canadian Security Intelligence Service Act, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, and, the Immigration and Refugee Protection Act. Therefore, “the reasonable grounds to suspect” criterion is appropriate for assessing eligibility for a security clearance.

2. Privacy of Information

Some have questioned whether the Marine Transportation Security Clearance Program protects the privacy of information collected on an individual.

The Privacy Act regulates the collection and use of personal information by the federal government and agencies. As such, the Privacy Act governs Transport Canada’s programs. An applicant’s personal information will be used only for assessment purposes within the context of the program.

For further clarity, the only two circumstances in which an individual’s information will be shared with a foreign government are:

• where, in the opinion of the Minister, the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure; or
• for the purpose of complying with a subpoena or warrant issued or order made by a court, person or body with jurisdiction to compel the production of information or for the purpose of complying with rules of court relating to the production of information.

In addition, Treasury Board guidelines require that a Privacy Impact Assessment be conducted to examine how personal information is collected, used, retained, and shared whenever a government program gathers personal information. Transport Canada has conducted a Privacy Impact Assessment on the collection of personal information under the Marine Transportation Security Clearance Program.

[1] The collection and use of personal information by Transport Canada is governed by the Privacy Act.